Law & the Courts

This Day in Liberal Judicial Activism—November 5

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

Law & the Courts

Judicial-Nominations Update

President Donald Trump in Pittsburgh, Pa., October 23, 2019 (Leah Millis/Reuters)

Last week, the Senate Judiciary Committee held nomination hearings on two of President Trump’s nominees to the Ninth Circuit, Lawrence VanDyke and Patrick Bumatay. The Ninth Circuit continues to be transformed: Assuming VanDyke and Bumatay are confirmed, President Trump will have appointed 13 of the 29 active judges on that court.

Senate majority leader Mitch McConnell has filed for cloture (to end debate) on five more of President Trump’s judicial nominees, including Danielle Hunsaker and William Nardini, both nominated to the Second Circuit. This procedural move by McConnell sets up confirmation for all five nominees later this week or next.

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

 Current and known future vacancies: 122

Courts of Appeals:  9

District/Specialty Courts*: 113

Pending nominees for current and known future vacancies:  55

Courts of Appeals: 8

District/Specialty Courts*:  47

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination


Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date

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 (5th) 6/24/19 133 7/17/19
Steven Menashi (2nd) 9/9/19 56 9/11/19
Barbara Lagoa (11th) 10/15/19


15 10/16/19
Robert Luck (11th) 10/15/19


15 10/16/19
Lawrence VanDyke (9th) 10/15/19 15 10/30/19
Patrick Bumatay (9th) 10/15/19 15 10/30/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Danielle Hunsaker (9th) 9/19/19 46 10/24/19
William Nardini (2nd) 9/19/19 46 10/24/19

 Nominees Awaiting Floor Votes: 26

Courts of Appeals: 2

District/Specialty Courts*: 28

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 6
  • # of pending nominees originally nominated > 400 days ago: 6
  • # of pending nominees originally nominated > 300 days ago: 12

Nominees Confirmed by the Senate during the 116th Congress: 74

Supreme Court: 0

Courts of Appeals: 13

District/Specialty Courts*: 61

Nominees Confirmed by the Senate since Inauguration Day: 159

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts*: 114

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

Law & the Courts

Re: Judge Barron’s Barren Reasoning

A follow-up to this post from last Thursday:

On Friday, the same First Circuit panel—Lynch, Boudin, Lipez—that denied Doe’s motion for reconsideration (over Lipez’s dissent) reversed course after Doe filed his motion for en banc reconsideration, so Harvard law professor Jeannie Suk Gersen will represent Doe at oral argument tomorrow on the appeal before that panel.

It’s still difficult to make sense of what’s happened:

1. One theory is that First Circuit judge David Barron denied Doe’s initial motion to allow Gersen to represent him on the ground that doing so would require Barron to recuse himself from the case. That would have been unsound reasoning on Barron’s part: If there were some unknown basis on which Barron would have to recuse, Doe’s right to counsel should have trumped any interest or duty on Barron’s part in sitting on the appeal. What’s more, Barron shouldn’t have decided the motion if he had a conflict.

On this same theory, Barron went on to remove himself from the case, but the announced merits panel nonetheless initially denied Doe’s motion for reconsideration.

2. Another possibility is that the undisclosed panel consisted all along of Lynch, Boudin, and Lipez and that Barron thought that granting the motion would require one of them to recuse. Again, it would have been wrong for him to deny the motion on that basis. Further, the panel’s initial denial of the motion for reconsideration would seem to show that Barron was wrong to think that one of the three judges would have to recuse, for it that were so, that judge should not have taken part in the denial. Perhaps Barron was initially informed that one of the three would have to recuse, but on further consideration the judge decided otherwise.

3. Yet another possibility is that the undisclosed panel initially had another judge who got off the panel before it was announced. That still makes it a puzzle that the reconstituted panel would have denied the initial motion for reconsideration.

Perhaps all’s well that ends well. But Barron’s initial order seems impossible to justify and wasted a lot of Doe’s attorneys’ time (and presumably a lot of Doe’s money).

Law & the Courts

This Day in Liberal Judicial Activism—November 4

(Andrew Kelly/Reuters)

1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.”

But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism.

2016—In defiance of governing Third Circuit precedent holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, federal district judge Cathy Bissoon (in EEOC v. Scott Medical Health Center) denies an employer’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.

Law & the Courts

This Day in Liberal Judicial Activism—November 2


1979—President Carter appoints Harry Pregerson to the Ninth Circuit, where Pregerson will remain in active service for the next 36 years.

The newly created seat to which Carter appoints Pregerson is one of ten additional seats on the Ninth Circuit created by a 1978 judicial-expansion act. That act increased the seats on the Ninth Circuit from 13 to 23—a 77% increase. Carter will fill all of the new seats (as well as some of the old ones). By appointing so many judges like Pregerson, Carter will turn the Ninth Circuit into a notorious bastion of liberal judicial activism.

2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include:

(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report.

(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.

(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.

(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.

(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.

(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.

(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).

Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise.

Law & the Courts

Re: Is Bill Clinton Saying that Justice Ginsburg Lied to the Senate?

Two follow-ups to my post yesterday:

1. In his “Best of the Web” column, the Wall Street Journal’s James Freeman highlights my post but argues that Bill Clinton’s broader credibility problems mean that “Justice Ginsburg deserves every benefit of the doubt in responding to the new Clinton claim.”

I disagree. To be sure, Clinton shouldn’t be trusted to tell the truth when lying is in his self-interest. But it is difficult to see how he would have had any incentive to lie about his discussion of Roe v. Wade in his 1993 interview of Ginsburg for the Supreme Court vacancy. The details of his account also make it persuasive.

I’d be very interested in what Ginsburg would have to say “in responding to the new Clinton claim.” But I’d bet that she stays mum.

2. The lack of interest of the mainstream media in Clinton’s remarks is astounding.

Imagine the uproar if, say, George W. Bush stated that he had discussed Roe with John Roberts before nominating him, in order to make sure that Roberts was solidly anti-Roe. But the mainstream media apparently sees little noteworthy in the news, from Clinton’s own mouth, that he discussed Roe with Ginsburg before nominating her, in order to make sure that she was solidly in support of a constitutional right to abortion, and that Ginsburg “knew … perfectly well” why he was discussing Roe with her. (The Washington Post account of the event completely passed over the abortion remarks.)

Add to that the fact that Ginsburg denied under oath to the Senate that any such discussion occurred, and you’d think that you’d have quite a story. But the same media that parrots flimsy and makeshift claims that this or that conservative justice gave misleading testimony at his confirmation hearing doesn’t seem to care that Clinton has provided compelling evidence that Ginsburg lied.

Law & the Courts

Judge Barron’s Barren Reasoning

Strange things are going on in the little-noted First Circuit.

Next Tuesday, a panel will hear oral argument in Doe v. Trustees of Boston College. In that case, Boston College is appealing the district court’s grant of a preliminary injunction that bars Boston College from suspending “John Doe,” a male student whom it accused of sexual misconduct.

Doe recently filed a routine motion asking the First Circuit to allow him to substitute in Harvard law professor—and Title IX expert—Jeannie Suk Gersen as his counsel. An odd series of events (discussed more fully here by Scott Greenfeld on his Simple Justice blog) then ensued:

1. First Circuit judge (and former Harvard law professor) David J. Barron denied Doe’s motion on the ground that Gersen’s representation of Doe “would create a recusal” among the First Circuit judges. Barron didn’t explain why it “would create a recusal.” Nor, more importantly, did he address why the prospect of a recusal should trump Doe’s right to select his counsel. Given that the composition of the panel hadn’t yet been announced, there was no reason to think that Doe’s selection of Gersen had been made in order to cause a recusal.

2. When the calendar was announced for next week, it turned out that Barron was sitting on every case being heard on Tuesday except the Doe case. That led observers to think that Barron himself was the source of the unexplained conflict. But if he were, it would be very odd that he would have seen fit to rule on the motion in the first place.

3. Doe then filed an extensive—and, to my mind, compelling—motion for reconsideration in which he spelled out the circumstances that led to his motion to have Gersen represent him. I don’t see how anyone who reads that motion for reconsideration would think that Doe was trying to manipulate the composition of the panel. Nor is there any apparent reason why any of the judges chosen for that panel would have to recuse if Gersen argued the case. Yet the panel, over a dissent, denied the motion for reconsideration without any explanation.

Doe might soon file a motion for en banc reconsideration. [Update: Doe filed that motion late on 10/31.] If so, we shall soon see whether the First Circuit will vindicate the right of a civil litigant, absent unusual circumstances, to be represented by his counsel of choice.

Law & the Courts

Is Bill Clinton Saying that Justice Ginsburg Lied to the Senate?

At a Georgetown law school event yesterday with Hillary Clinton and Justice Ruth Bader Ginsburg, Bill Clinton revealed that he discussed Roe v. Wade with Ginsburg before nominating her to the Supreme Court in 1993 and that their discussion was important to “why I thought I should appoint her”:

[Ginsburg] knew this perfectly well, that I was under a lot of pressure to make sure I appointed someone who was simon-pure, which I had said I thought was important. But I was fascinated by a—either an article I had read or something I had read on Justice Ginsburg saying that she supported the result in Roe v. Wade but thought Justice Blackmun should have decided the case on the equal protection clause not the right to privacy. And I asked her the question and she talked about it just as if it was any other issue, no affect: “This is what I think, this is why I think it,” and she made a heck of a case.

By “someone who was simon-pure,” Clinton clearly means someone who would surely support the proposition that the Constitution confers an expansive abortion right. (As a presidential candidate in 1992, he promised that he would appoint a Supreme Court justice who “believe[d] in the right to privacy and the right to choose.”)

Clinton’s candid account of this conversation strikes me as rather difficult to reconcile with nominee Ginsburg’s sworn testimony to the Senate in 1993. The Senate questionnaire that Ginsburg completed included this question:

Has anyone involved in the process of selecting you as a judicial nominee (including but not limited to a member of the White House staff, the Justice Department, or the Senate or its staff) discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue, or question? If so, please explain fully.

In response (see p. 108 of hearing record), Ginsburg wrote:

It is inappropriate, in my judgment, to seek from any nominee for judicial office assurance on how that individual would rule in a future case. That judgment was shared by those involved in the process of selecting me. No such person discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.

But Clinton has just stated publicly that he did discuss Roe with her precisely in order to get the assurances he needed on her position on abortion. And he has further stated that Ginsburg “knew this perfectly well.”

In short, Clinton sure seems to be saying that Ginsburg lied to the Senate.

Law & the Courts

This Day in Liberal Judicial Activism—October 31


1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

Law & the Courts

Another Self-Inflicted Wound for the ABA

(Carlos Jasso/Reuters)

Just when you thought it was safe to go back in the judicial confirmation waters, the American Bar Association lets loose with another ratings attack. Last week, I wrote here about a U.S. District Court nominee who received a “not qualified” ABA rating. Well, now it’s a U.S. Court of Appeals nominee, Lawrence Van Dyke, receiving the same rating. And it means no more than it did before.

No one has ever accused the ABA of being conservative, or even Republican. In fact, since the 1970s, the ABA House of Delegates has passed hundreds of resolutions on all the hot political topics, all of them taking a liberal position. That’s probably not a coincidence.

So it’s reasonable to ask whether this consistently liberal organization can really be objective and non-political in its ratings of judicial nominees. The ABA, of course, would say, well, of course. That’s a little odd when liberals are constantly telling us that, when confirmed, those same nominees will be unable to put aside their personal views or politics and impartially decide cases.

We actually do have evidence suggesting an answer to whether ABA ratings are biased. The answer is yes. In fact, at least four studies (here, here, here, and here) over the last two decades show a systematic bias against………..drum roll………Republican nominees. These studies cover different periods and groups of judges, and use different methods, but all come to the same conclusion.

This time, it seems, the academics back the people using their common sense. A liberal group favors liberal judicial nominees. And if you want to know more about VanDyke’s legal experience, see here, and what those who really know are saying, see here.

But take a step back and ask whether any of this really matters. Even if the ABA were not a liberal interest group, even if its ratings were not biased against GOP nominees, do its ratings make any difference?

That doesn’t look good for the ABA either.

The Senate, for example, has confirmed more than a dozen judicial nominees, of both parties, rated “not qualified” by the ABA, most of them without any opposition at all. Just last year, the Senate confirmed Holly Teeter to the U.S. District Court in Kansas after she received the same rating as Walker and VanDyke. Not only was there no opposition, but the Senate did not even bother to take a recorded vote.

The other side of the coin is that, truth be told, Senate Democrats really don’t care what a nominee’s rating is. If President Donald Trump made the nomination, Democrats are voting NO. This year alone, the Senate has confirmed 13 nominees to the U.S. Court of Appeals. The nine receiving a “well qualified” ABA rating received an average of 42 negative votes.

The ABA’s ratings are biased and, in the end, no one really cares.

Law & the Courts

The ABA Has Outdone Itself Rating Lawrence VanDyke ‘Not Qualified’

Today the ABA Standing Committee on the Federal Judiciary notified that Senate Judiciary Committee that it has given a rating of “Not Qualified” to Lawrence VanDyke, President Trump’s nominee to the Ninth Circuit. The ABA has amassed quite the history of bias against conservatives over the last few decades, but with VanDyke, it has really outdone itself.

VanDyke graduated magna cum laude from Harvard Law School and served as an editor of the Harvard Law Review. He clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit before launching his appellate career.  VanDyke has the distinction of having served as both the solicitor general of Montana and Nevada, where he oversaw every important case affecting those states. He has argued over 20 appeals in the federal circuit courts (most in the Ninth Circuit) and has been the counsel of record on 28 briefs before the U.S. Supreme Court. Lawrence VanDyke is one of the standout appellate litigators of his generation.

Nonetheless, the ABA has made the astonishing determination that VanDyke is “Not Qualified.”  Consider for a moment the absurdity of that conclusion applied to someone who would be the only circuit judge to have served as the chief appellate litigator of two states—and one with major victories under his belt.  Yet even the Committee could not ignore the VanDyke’s impressive resume and experience, noting that it “was tasked with balancing Mr. VanDyke’s accomplishments with strong evidence that supports a ‘Not Qualified’” rating.  So instead, the Committee alleged that Mr. VanDyke lacks “professional competence” and “judicial temperament.”

The ABA is correct to recognize there are concerns here, but they are properly directed to the ABA and Van Dyke’s lead evaluator, Marcia Davenport, a trial attorney in Montana. A search of Montana’s campaign electronic reporting system shows that in 2014 Davenport contributed $150 to Michael Wheat, VanDyke’s opponent when he ran for a seat on the Montana Supreme Court. Yes, you read that correctly: VanDyke’s lead ABA evaluator has a history of opposing VanDyke politically. Moreover, the linked contribution report shows dozens of campaign contributions made by Ms. Davenport in recent years, but never one to a Republican (note that Davenport’s maiden name is Maynard).

And whom did Davenport rely upon in writing her evaluation? We can safely assume that at least one person she interviewed was Michael Black, given her reference to “600 pages of publicly produced emails” that she used in writing her formal report. Black was the Chief of the Civil Division Bureau of the Montana Department of Justice, and also publicly opposed VanDyke when he ran for the Montana Supreme Court, launching personal attacks against VanDyke. After Black came out against VanDyke in 2014, he told the Great Falls Tribune, “[Black’s] had a long, sort of mysterious vendetta against me, and I’m not sure why.” Black unsuccessfully sought a seat on the Montana Supreme Court, applying for an appointment in early 2014 when a seat came open.

So there you have it. A left-wing partisan who opposed Lawrence VanDyke in Montana led the ABA’s evaluation process, interviewing other political foes of VanDyke and — surprise! — found their gripes about his professionalism and temperament to be very credible. And then the ABA Standing Committee blessed that sham of a process by giving VanDyke a “Not Qualified” rating.

The Code of Judicial Conduct takes the issue of a judge’s impartiality seriously. Canon 3 states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which . . . the judge has a personal bias or prejudice concerning a party.” Yet the ABA—whose self-professed mission is “to serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession” — ironically can’t recognize the compromised impartiality of VanDyke’s lead evaluator.

And of course, this is just one more drop in the bucket with respect to the ABA’s long history of bias against conservative nominees to the judiciary. Thankfully the ABA is given very little credence by Republican presidential administrations and senators because of its embarrassing history, but this latest episode shows that it should have no role whatsoever in the judicial nomination process.

Law & the Courts

This Day in Liberal Judicial Activism—October 30

2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statement, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent.

White House

One of These Impeachment Resolutions Is Not Like the Other

House Speaker Nancy Pelosi announces the House of Representatives will launch a formal inquiry into the impeachment of President Donald Trump, September 24, 2019. (Kevin Lamarque/Reuters)

Democrats have rejected every opportunity to pursue their impeachment inquiry in a way that at least appears non-partisan, fair, or consistent with past practice. They just won’t do it.

First they refused to have the full House vote to authorize the inquiry. The House did it for the impeachment of Presidents Bill Clinton in 1998 and Richard Nixon in 1974. The House even did it for the impeachment of U.S. district judge G. Thomas Porteous, Jr. in 2010. But no, Speaker Nancy Pelosi refused to do so this time, instead unilaterally launching the inquiry herself.

Second, past impeachment inquiries were conducted by the House Judiciary Committee. This time, when Pelosi waved the starting flag, no less than six committees were off and running.

Now we are told that the House will vote on a resolution this week that, according to a Pelosi statement, directs the six committees to “continue their ongoing investigations as part of the existing” inquiry. What’s the point of the House voting to say “Carry On”?

While the resolution lists the six investigating committees, however, it spells out procedures for only two of them — Judiciary and Intelligence. The others, it appears, may continue in secret, making it up as they go along.

There’s one more curious thing about the proposed House resolution. When the House authorized the Clinton impeachment inquiry, House Resolution 581 allowed the Judiciary Committee chairman and ranking member to issue subpoenas “by acting jointly.” If “either declines to act,” the other had to first refer the matter to the full committee for decision before acting alone. House Resolution 803 spelled out the same procedure for the Nixon impeachment.

The proposed resolution for the Trump impeachment inquiry is different. It says only that the ranking member may issue subpoenas “with the concurrence of the chair.” If the chair “declines to concur,” the ranking member must refer the matter to the full committee for decision before acting alone.

See the difference? The chairman may issue subpoenas unilaterally, but the ranking member is always subject to the permission of the majority — either the chairman or the committee, on which Democrats have a 13–9 advantage.

If House Democrats really, or even half-heartedly, wanted something as grave as an impeachment inquiry to at least look reasonably non-partisan or fair, they know how to do it. They’ve chosen not to do it that way, which tells just what their motive really is.

Law & the Courts

Eleventh Circuit Chief Judge Carnes to Take Senior Status

According to the list maintained by the Administrative Office of the U.S. Courts, Eleventh Circuit chief judge Edward E. Carnes has announced that he will take senior status at some as-yet-undefined date. Carnes’s tenure as chief judge ends, as I understand it, next June 3—the date on which he turns 70—so it’s reasonable to expect that that’s the date on which he will take senior status (though he could do so sooner).

In the meantime, the White House can go ahead and nominate Carnes’s successor, and the Senate can confirm the nomination. Only the post-confirmation act of appointment by the president requires that Carnes first have taken senior status (so that a vacancy exists).

Once the pending nominees Barbara Lagoa and Robert Luck are confirmed and appointed, the Eleventh Circuit will have seven appointees of Republican presidents versus five appointees of Democratic presidents. (Technically, that tally will be achieved when Lagoa is appointed, as Luck is replacing a Republican appointee.) At the outset of the Trump administration, the Eleventh Circuit had eight Democratic appointees, only three Republican appointees, and one vacancy.

Further, if President Trump appoints Carnes’s successor as well as Lagoa and Luck, he will have appointed six judges to the Eleventh Circuit. That is half of its total—higher than for any other court.

In sum, there is a strong argument that the Eleventh Circuit is the federal appellate court that will have been most transformed by Trump by the end of 2020.

Law & the Courts

Sixth Circuit Ruling Bars Ohio Law Against Down Syndrome Abortions

Two weeks ago (in Preterm Cleveland v. Himes), a divided panel of the Sixth Circuit barred the state of Ohio from enforcing its law that prohibits medical providers from performing an abortion if they have “knowledge that the pregnant woman is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome.

In her majority opinion (joined by chief judge Guy Cole), Judge Bernice Bouie Donald declared that the Roe/Casey regime confers a “categorical” right to abortion before viability. (Donald was appointed by President Obama, Cole by President Clinton.)

In her dissent, Judge Alice Batchelder (an appointee of President George H.W. Bush) argued that the undue-burden analysis under Casey instead requires a “fact-intensive” inquiry that also takes into account “the State’s interests and the benefits of the law, not just the potential burden it places on women seeking an abortion.” Having failed to conduct that inquiry, the majority and the district court had no basis for enjoining the law.

Batchelder further pointed out that the Supreme Court’s ruling in Gonzales v. Carhart (2007) allowed the federal ban on partial-birth abortion to apply before viability. She also invoked Justice Thomas’s observations (from his forceful concurring opinion last spring in Box v. Planned Parenthood) that laws like Ohio’s “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics” and that the Court’s abortion rulings do not require states “to allow eugenic abortions.”

I’m pleased to see that the state of Ohio has today filed a petition for rehearing en banc. The petition argues that the panel majority erred when it concluded that there is a “categorical” right to a pre-viability abortion: “Indeed, Casey itself upheld a law prohibiting minors from getting abortions without parental consent or court approval—that is, a law that banned those who could obtain neither consent nor court approval from getting an abortion.” The petition also emphasizes the “two critically important state interests” that the law advances:

First, anti-eugenics laws protect the dignity of people living with conditions or traits targeted for abortion.… The practice of targeting unborn children with Down syndrome for abortion devalues the lives of people living with Down syndrome.

Second, anti-eugenics laws are necessary because eugenic abortions “do deep damage to the integrity of the medical profession.” [Quoting Batchelder dissent.] Humans are not show dogs or racehorses.… Every human life matters—certainly the people of Ohio may enact laws reflecting that view—and the medical profession [which “actively promoted eugenic ‘solutions’” in the early 20th century] must never again be associated with a contrary view.

Most Popular


How States Like Virginia Go Blue

So this is what it feels like to live in a lab experiment. As a native Virginian, I’ve watched my state come full circle. The last time Democrats enjoyed the amount of power in the Old Dominion that they won on Tuesday, I was entering middle school in Fairfax County. In 1993 the governor was a Democrat, one ... Read More

Democratic Denial

One point I'd draw out from David Harsanyi's post below: It has been more than thirty years since a Democratic presidential nominee failed to make it to the White House and thought the loss was legitimate. Read More

Religious-Freedom Voters Will Vote Trump

The late Supreme Court Justice Frank Murphy wrote, "Freedom of speech, freedom of the press, and freedom of religion all have a double aspect — freedom of thought and freedom of action.” To which one should be able to add, freedom of inaction -- meaning that absent a compelling state interest, people should ... Read More
Books, Arts & Manners

Why Study Latin?

Oxford professor Nicola Gardini urges people to read and study Latin. He believes that Latin is the antidote for the modern age, which seems transfixed by the spontaneous, the easy, and the ephemeral. His new book, Long Live Latin: The Pleasures of a Useless Language, argues that Latin combines truth and ... Read More