Law & the Courts

This Day in Liberal Judicial Activism—September 29

(Leah Millis/Reuters)

1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Law & the Courts

This Day in Liberal Judicial Activism—September 28

Arthur Goldberg, 1965. (Wikimedia commons)

1962— President Kennedy’s appointment of Arthur Goldberg to replace the retiring Felix Frankfurter creates a clear liberal activist majority on the Supreme Court. As Seth Stern and Stephen Wermiel write in Justice Brennan:

Goldberg’s arrival meant that Brennan did not need to accommodate [Byron] White’s concerns [of judicial restraint]: the bloc had its fifth vote without him. After the very first Friday of the term, Brennan came back to his chambers with a look of triumph on his face—a look he would keep all term.

Law & the Courts

Yes, the ABA Is Still a Left-Wing Advocacy Group


During Wednesday’s judicial nomination hearing, Sarah Pitlyk, who has been nominated to the Eastern District of Missouri, was grilled by Judiciary Committee Democrats for her representation of pro-life clients and for her rating of “Not Qualified” by the American Bar Association.

Anyone who doubts that both are two sides of the same coin should recall that such ABA bias is nothing new. In fact, it has happened in this administration. As I pointed out less than two years ago, then-Eighth Circuit nominee Steve Grasz endured the same “Not Qualified” rating for supposed “bias and lack of open-mindedness” based on a 1999 law review article about partial-birth abortion that took a position the Supreme Court would ultimately adopt in Gonzales v. Carhart (2007).

The ABA has a history of taking liberal positions on issues including abortion, the death penalty, same-sex marriage, affirmative action, and the Second Amendment. The organization’s ideological bias has long tainted its ratings of judicial nominees. An entire book on the subject was written as early as 1965, Joel B. Grossman’s Lawyers and Judges: The ABA and the Politics of Judicial Selection. A 2006 Wall Street Journal editorial condemned the ABA’s “long history of . . . ideological sandbagging.” A 2012 Political Research Quarterly study found “strong evidence of systematic bias in favor of Democratic nominees.” Senator Ted Cruz pointed out at Wednesday’s hearing that eight of the 15 members of the ABA’s Standing Committee on the Federal Judiciary, which evaluates nominees, have together contributed at least $60,000 to Democratic candidates and related organizations, and donations to the campaigns of presidential nominees have gone exclusively to Democrats: Five members donated to Barack Obama’s campaign, three to that of Hillary Clinton, and none to the last three Republican nominees.

Consider just a few examples of the ABA giving lower ratings to nominees whose qualifications were extensive:

  • Four members of the standing committee voted to give Judge Robert Bork a “Not Qualified” rating for the Supreme Court.
  • The following conservative nominees received a minority “Not Qualified” rating from the ABA and went on to be among the nation’s most distinguished jurists:
    • Richard A. Posner (7th Cir., nominated 1981)
    • Frank H. Easterbrook (7th Cir., nominated 1984)
    • J. Harvie Wilkinson (4th Cir., nominated 1984)
    • Edith H. Jones (5th Cir., nominated 1985)
    • Alex Kozinski (9th Cir., nominated 1985)
    • Laurence H. Silberman (D.C. Cir., nominated 1985)
    • John T. Noonan (9th Cir., nominated 1985)
    • Stephen F. Williams (D.C. Cir., nominated 1986)
    • Jerry E. Smith (5th Cir., nominated 1987)
    • J. Michael Luttig (4th Cir., nominated 1991)
    • Carlos T. Bea (9th Cir., nominated 2003)
    • William H. Pryor (11th Cir., nominated 2003)
    • Thomas Hardiman (W.D. Pa., nominated 2003)

Although the ABA standing committee purports to give special consideration to females and minorities, a 2014 Journal of Law and Courts study of ABA ratings found that “minority and female nominees are more likely than whites and males to receive lower ratings” and additionally that judges receiving a majority “Not Qualified” rating are no more likely to be reversed than others rated higher. In short, as a predictor of judicial performance, ABA ratings have completely failed.

The entire rating process, cloaked in a policy of confidentiality, lacks in transparency what it manifests in bias. In less than three years, the ABA has already rated eight of President Trump’s judicial nominees “Not Qualified,” twice as many as received that rating during President Clinton’s entire eight years in office. In addition to what happened to nominee — fortunately now Judge — Steve Grasz, consider two other Trump nominees:

  • Then Oklahoma District Court nominee Charles Goodwin was rated “Not Qualified,” despite five years of service to that jurisdiction as a magistrate judge (four at the time of nomination) during which he had disposed of civil cases at a substantially higher rate than the national average, issuing approximately 350 opinions and additionally presiding over approximately 500 felony proceedings and disposing of over 1,000 misdemeanor cases. The ABA had the temerity to say the nominee raised “concerns about the timely and efficient administration of justice.”
  • Then Eighth Circuit nominee Jonathan Kobes was rated “Not Qualified” despite graduating from Harvard Law School and clerking for the chief judge of the court to which he was nominated, Roger Wollman. He had tried six cases to verdict, which is six more than President Obama’s Supreme Court nominee, Elena Kagan, and his Ninth Circuit nominee, Goodwin Liu, both of whom received unanimous “Well Qualified” ratings. For that matter, Kagan had never argued a case before any court at the time Obama had earlier nominated her to be solicitor general, or when President Clinton nominated her for the D.C. Circuit in 1999. For that earlier judicial nomination, the ABA had rated Kagan “Qualified.”

So Sarah Pitlyk is in good company. A graduate of Yale Law School who had clerked for Brett Kavanaugh on the D.C. Circuit, she has more litigation experience than either Kagan or Liu at the time of their respective circuit court nominations — or, to take another district court nominee, Alison Nathan, who received an ABA rating of “Qualified” after Obama nominated her to the Southern District of New York.

Like any other political organization, the ABA has the right to assess judicial nominees and offer its opinion, pro or con. But it has earned no right to a special role in the process, or to have their ratings taken all that seriously.

Law & the Courts

‘Against the Tiers of Constitutional Scrutiny’

That’s the title of an outstanding National Affairs essay by Joel Alicea and John D. Ohlendorf. Alicea and Ohlendorf argue that the tiers of scrutiny—strict scrutiny, intermediate scrutiny, and rational-basis review—that have come to dominate so much of what passes for constitutional analysis are illegitimate: They “have no basis in the text or original meaning of the Constitution,” and “they do not withstand critical analysis even on their own terms.”

The authors explain the “curious history” of the tiers of scrutiny, a “revolution in constitutional law [that] happened not for reasons of principle and fidelity to the original meaning of the Constitution” but rather “for reasons of contingency and political expediency.” The Supreme Court (to use their quote of Harvard law professor Richard Fallon) long “conceived its task as marking the conceptual boundaries that defined spheres of state and congressional power on the one hand and of private rights on the other.” The tiers of scrutiny developed only in the mid-20th century “as a means to evade the categorical language of the Free Speech Clause,” and they then morphed into “the Warren Court’s dominant method of muscularly protecting its favored constitutional rights.”

Alicea and Ohlendorf argue that “it is in the very nature of the tiers of scrutiny that they contradict the constitutional provisions in question, by purporting to find those rights ‘outweighed’ by the government’s interest in violating them.” This scrutiny analysis “asks judges to impose on the Constitution a hierarchy of values and interests that—due to their incommensurability—is not objectively justifiable.”

They continue:

But one need not be an originalist to reject the tiers of scrutiny; any good-faith interpreter of the Constitution can—and should—just as readily condemn them. That is because the tiers of scrutiny lack the essential characteristic of any jurisprudential test whose aim is the faithful application of the law: serving as a meaningful guide to legal analysis. Instead, each step of the scrutiny process is marked by indeterminacy and manipulability.

Because the scrutiny analysis depends a judge’s “own subjective assessment of questions that can only be described as quintessentially political,” it “makes the resolution of controversial constitutional questions difficult for the losing side to accept.”

There is a lot more in this rich and thoughtful essay. I agree with the authors that the “Roberts Court would have few accomplishments of greater significance than the repudiation of the tiers of scrutiny.”

Law & the Courts

Judge Amy Coney Barrett’s Canards of Contemporary Legal Analysis

Last week, Judge Amy Coney Barrett delivered a lecture on Assorted Canards of Contemporary Legal Analysis at the Case Western Reserve Unviersity School of Law. The lecture, inspired by Justice Antonin Scalia’s famed lecture on legal canards from 1989, took issue with some common misperceptions and misrepresentations of textualism, among other canards. Video of the lecture is available here. The text of the remarks will be published in the Case Western Reserve Law Review and more details on the lecture series of which Judge Barrett’s talk was a part may be found here.

Law & the Courts

This Day in Liberal Judicial Activism—September 26

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

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

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

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

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

Law & the Courts

Correcting the Record (Again): Menashi on Abortion and Contraception

Steven Menashi (George Mason University / Antonin Scalia Law School)

This feels like déjà vu all over again.

Yet again, CNN’s K-File has misrepresented Second Circuit nominee Steven Menashi’s college writings — this time about abortion and contraception. And yet again, the record needs to be corrected.

In its piece, CNN focuses on two articles that Menashi wrote as a Dartmouth student in the same issue of the Dartmouth Review published on January 15, 2001. The first, “The Yuck Factor,” was written in Menashi’s capacity as Editor-in-Chief of the Review and cites public polling data about abortion — including late-term abortion — and how the polling data contradicts the views of some leading bioethicists on the issue.  The second column, “The College on the Pill,” written under Menashi’s own byline, raised questions about both Dartmouth’s distribution of the Plan B drug and the completeness of the information Dartmouth provided to students about it.

“The Yuck Factor”

In writing about the “Born-Alive Infants Protection Act,” which had been passed by the House of Representatives the previous fall, Menashi’s editorial observed, “Most people who believe in abortion would tend to draw the line at actual birth.”  The editorial continues, “Abortion, of course, is the right to end a pregnancy. Once birth occurs, pregnancy is over: killing the baby after birth is infanticide, not abortion.”  Having described public polling on late-term abortion earlier in the editorial, Menashi concluded that there is “overwhelming public consensus against infanticide.”

In its article published today, CNN wrote: “In the columns, Menashi focused on extremely rare procedures and even rarer outcomes associated with abortions later in pregnancy.” In support of its claim, CNN cites CDC data seeking to show that late-term abortions are rare:

“While induced labor is a form of late-term abortion, abortions after 21 weeks – including those before the 24-week standard of viability – account for 1.3% of all abortions in recent CDC data.  A CDC study from 2016 shows that between 2003 and 2014, there were 143 recorded fetal and infant deaths associated with induced terminations – but the study does not indicate how many of the fetuses were viable.”

A few points about this misrepresentation of Menashi by CNN: First, Menashi specifically noted that “live birth abortion” was just “one form of abortion currently practiced” (emphasis added). By no means did Menashi suggest that it was the only or even the most common form of abortion. Second, CNN’s citation of 143 recorded fetal and infant deaths in the cited CDC report lowballs the relevant number. That report actually stated that 588 infant deaths were reported with a code indicating a cause of death to be “termination of pregnancy, affecting fetus and newborn,” which encompassed both spontaneous and induced abortions. While 143 of that number “could definitively be classified as involving an induced termination,” the report continued, “it is possible that this number (143) underestimates the total number of deaths involving induced termination” (emphasis added). Third, Menashi was writing about live birth abortion specifically because the recently-passed “Born-Alive Infants Protection Act” was in the news. That’s exactly what editorials do: comment on items that are currently in the headlines. And finally, taking CNN’s assertion at its face that it is extremely rare for a fetus to survive a dilation and extraction procedure, that does not mean that surviving infants are not worth protecting.

While CNN notes Menashi’s reference to South Africa’s issuance of “guidelines in 1997 advising against resuscitation for some infants,” it does not explain how this relates to the title of Menashi’s editorial, “The Yuck Factor.”  In his column, Menashi quoted the South African guidelines, which state: “if an infant is born who gasps for breath, it is advised that the fetus does not receive any resuscitation measures.” Menashi wrote that this is what many bioethicists refer to as “the yuck factor” — a delivered baby gasping for breath but being allowed to die.  The editorial surveyed the views of bioethicists who maintained that “infanticide was not only morally permissible, but often imperative” (emphasis added).  But CNN conveniently omitted this tidbit.

“The College on the Pill”

In his column, Menashi wrote about how, for a period of time, the Dartmouth administration had been training undergraduates to advise residents “who were at risk for pregnancy” to use the Plan B drug, and that even some resident advisors had kept a “supply of Plan B” in their rooms to give to students (despite the fact that Plan B required a prescription at the time). (Menashi noted that, eventually, administration officials “apparently realized the legal problem with students distributing Plan B”).

Menashi also detailed the “relatively simple” process by which students were able to (legally) obtain a Plan B prescription, by having a five-minute consultation with a Dartmouth health department official. Having sent a Dartmouth Review staff member for such a consultation, Menashi reported about the potential misinformation that the health department was conveying to students. Menashi wrote that the health department official explained that Plan B was different from an abortion (“it’s a hormone to try to stop you from ovulating . . . . It’s not an abortion pill.”).  While Menashi wrote that the health department employee correctly described the Plan B drug as “inhibiting or delaying” ovulation, he noted that there “was a third case” not mentioned by the advising health official, “in which the emergency contraceptive prevents an already fertilized egg from implanting in the uterus.”

CNN incorrectly suggests this to be Menashi’s personal view. Instead, Menashi continues on to state the viewpoint of the Family Research Council (shared by many Catholics), which was that pregnancy occurs at fertilization — not implantation. Menashi directly quoted the then-spokeswoman of the Family Research Council, who said, “There is a case where a pregnancy has not occurred and the morning-after pill would decrease the uterine lining so that there is nowhere for the fertilized egg to implant itself, so it dies.”

Rather than promoting any particular viewpoint about Plan B, Menashi was highlighting the fact that one’s moral view of when a pregnancy begins necessarily affects one’s view of whether the drug functions as an abortifacient. Menashi specifically wrote: “The dispute isn’t the result of deliberate misinformation, of course, but a conflict over definition.” (For this reason, CNN’s sub-heading in the piece “Menashi called the morning after pill an ‘abortifacient'” is misleading, because he was reporting the viewpoint of groups that took that position.) Menashi very accurately wrote, “Health Services is misleading those students who believe that life begins at conception — pushing them toward a choice they might abhor if they had complete information.”

With this newest smear, CNN attempts to paint Menashi as someone who holds extremist views about abortion and contraception.  But this couldn’t be further from the truth. Menashi was pushing back against out-of-touch bioethicists who made shocking statements about infanticide, and showing how their views were out of the mainstream. He was demonstrating sensitivity to those who had moral or religious objections to the morning-after pill and helping to ensure that those viewpoints were heard and understood. Ironically, Menashi’s columns as an aspiring young journalist achieved exactly what CNN fails to do today with this article: ensure that every side of the story is fairly told.

Law & the Courts

Judicial-Nominations Update


It took two and a half years, but our nation recently reached a benchmark of fewer judicial vacancies than existed on Inauguration Day. President Trump and Leader McConnell are to be commended for turning the tide against unprecedented Democrat obstruction. With the President’s latest announcement last week of new judicial nominations, the administration has designated nominees for all eight current vacancies on the U.S. courts of appeals. Tomorrow, the Senate Judiciary Committee will hold a hearing for two circuit court nominees—Danielle Hunsaker for the Ninth Circuit and William Nardini for the Second Circuit—along with three district court nominees.

Two additional circuit court nominees, Halil Ozerden for the Fifth Circuit and Steven Menashi for the Second Circuit, are among 11 judicial nominees on the agenda for the Committee’s markup this Thursday. Since Ozerden was held over during its markup last week, the Committee shall vote Thursday on whether to report his nomination to the full Senate. (Senators typically exercise their prerogative under Committee rules to hold over nominees the first time they appear on the agenda.)

Counting those nominations that have recently been announced without yet being formally submitted to the Senate, here is a full update on the status of President Trump’s federal judicial nominations: 

Current and known future vacancies:  121

Courts of Appeals:  8

District/Specialty Courts*: 113

Pending nominees for current and known future vacancies:  61

Courts of Appeals: 8

District/Specialty Courts*:  53

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
Danielle Hunsaker (9th) 9/19/19 5 No 9/25/19
William Nardini (2nd) 9/19/19 5 Yes 9/25/19
Barbara Lagoa (11th) Pending


N/A N/A Not yet scheduled
Robert Luck (11th) Pending


N/A N/A Not yet scheduled
Patrick Bumatay (9th) Pending


N/A N/A Not yet scheduled
Lawrence VanDyke (9th) Pending


N/A N/A Not yet scheduled

The President announced his intent to nominate the above-referenced Eleventh Circuit nominees on September 12, 2019. Their nominations have not yet been formally received by the Senate.

The President announced his intent to nominate the above-referenced Ninth Circuit nominees on September 20, 2019. Their nominations have not yet been formally received by the Senate.

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 92 7/17/19
Steven Menashi (2nd) 9/9/19 15 9/11/19

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor

 Nominees Awaiting Floor Votes: 19

Courts of Appeals: 0

District/Specialty Courts*: 19

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 1
  • # of pending nominees originally nominated > 400 days ago: 10
  • # of pending nominees originally nominated > 300 days ago: 15

Nominees Confirmed by the Senate during the 116th Congress: 69

Supreme Court: 0

Courts of Appeals: 13

District/Specialty Courts*: 56

Nominees Confirmed by the Senate since Inauguration Day: 154

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts*: 109

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


Law & the Courts

Attack on Judge Amy Coney Barrett Completely Misfires

Politics makes strange bedfellows. But I still find it downright bizarre that a conservative Catholic would join forces with Senator Dianne Feinstein (“the dogma lives loudly within you”) and other anti-Catholic bigots in contending that Seventh Circuit judge Amy Coney Barrett holds a “weirdly theocratic version of a Catholic judge’s constitutional obligations.” But that’s exactly what John Zmirak does in this woefully misguided Human Events piece in which he argues that President Trump should not nominate, and the Senate should not confirm, Barrett to a Supreme Court vacancy.

Zmirak declares himself “troubled by Barrett’s public statements on the nexus of her jurisprudence and her faith.” But the only “public statements” that he identifies are in a law-review article that Barrett co-authored more than twenty years ago when she was a law student. In that article, Barrett argued that trial judges who are faithful to Catholic teaching “are morally precluded from enforcing the death penalty” and should therefore recuse themselves from cases in which they might be required to do so. Zmirak extravagantly extrapolates from the 1998 article that Barrett as a Supreme Court justice might recuse herself from cases involving capital punishment, immigration, and abortion.

Alas, Zmirak completely ignores the “public statements” that Barrett made at her confirmation hearing in 2017.

For starters, Barrett provided the “context” for that article:

I wrote that law review article when I was a third-year law student with one of my professors 20 years ago. It was a project that he had underway, and he invited me to work on it with him, and I was complimented that as a student he thought I was up to the task of being more than a research assistant. But I was very much the junior partner in our collaboration, and that was appropriate given our relative statures.

Notably, Barrett expressly rejected the notion that “that article and its every particular reflects how I think about these questions today with … the benefit of twenty years of experience and also the ability to speak solely in my own voice”:

Would I or could I say, sitting here today, that that article and its every particular reflects how I think about these questions today with, as you say, the benefit of 20 years of experience and also the ability to speak solely in my own voice? No, it would not.

Even more importantly, Barrett stated that “sitting here today, I cannot think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.” How could Barrett have stated more clearly that she did not perceive herself to have an obligation to recuse from appellate review of death-penalty cases? (Barrett also stated that “when I was a law clerk to Justice Scalia, I routinely participated in capital cases, and there were many of them.”)

Zmirak claims that “Barrett fails to draw the bright line separating her legal judgment and practice from her faith.” But she drew that “bright line” repeatedly at her hearing and in her responses to written questions:

It is never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.

[I]f there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, it is never, ever permissible for that judge to follow their personal convictions in the decision of a case rather than what the law requires

I totally reject and I have rejected throughout my entire career the proposition that, as you say, the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.

[W]ere I confirmed, as a judge I would decide cases according to the rule of law, beginning to end.

[A] judge may never subvert the law or twist it in any way to match the judge’s convictions from whatever source they derive

I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.

Consistent with the views articulated in my writings and public statements, including my testimony at my hearing, I do not think it lawful for a judge to impose personal opinions, from whatever source they derive, upon the law. If confirmed, I will apply the law faithfully and impartially in accordance with the judicial oath.

Zmirak is apparently unaware of all of these statements.

In her two years on the Seventh Circuit, Barrett has taken part in nearly 500 decisions, published and unpublished. There is nothing in her judicial record (and Zmirak points to nothing) that suggests that she has recused herself from any category of cases. Indeed, contrary to Zmirak’s ill-founded speculation, she has already written several opinions rejecting immigrants’ claims for relief as well as one opinion granting limited relief. She has also taken part in a case involving abortion—specifically, speech by pro-life sidewalk counselors outside abortion clinics—and, contrary to Feinstein’s claim that she would indulge her Catholic faith in deciding such a case, she properly applied (widely discredited) Supreme Court precedent in ruling against the counselors.

Bottom line: There is plenty of reason to believe that Judge Barrett would be an outstanding Supreme Court justice, and Zmirak completely misfires in arguing otherwise.

Law & the Courts

This Day in Liberal Judicial Activism—September 24


1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.

2013—Live by the quota, die by the quota?

The New York Times reports that the Congressional Black Caucus is complaining that “out of 787 [active] federal [judicial] positions, only 95 are held by black judges.” But insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim.

Let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the 4% to 5% range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of active federal judgeships. That would suggest a trivial disparity—again, against a very favorable benchmark.

Less than a year later, the percentage of active federal judgeships held by blacks will exceed the percentage of blacks in the population.

Law & the Courts

This Day in Liberal Judicial Activism—September 23

Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), a unanimous Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

Law & the Courts

This Day in Liberal Judicial Activism—September 22

Illinois state senator Barack Obama in 2004. (Tim Boyle/Getty)

2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

White House

President Trump’s New Wave of Judicial Nominees

Today, President Trump announced a new wave of judicial nominees, which includes four new district court picks and Lawrence VanDyke and Patrick Bumatay for the U.S. Court of Appeals for the Ninth Circuit.

VanDyke currently serves as Deputy Assistant Attorney General in the U.S. Department of Justice. An experienced appellate attorney, he previously served as Solicitor General of both Montana and Nevada. If confirmed, he would become the only circuit judge to have served as Solicitor General for two states.

Patrick Bumatay is a federal prosecutor in the U.S Attorney’s Office for the Southern District of California in San Diego and veteran of the Department of Justice. During the second Bush administration, he worked in the Office of Legal Policy, where he worked on Supreme Court and other judicial nominations, before moving to the Associate Attorney General’s office. During this administration, he was detailed to advise the attorney general on criminal matters, including national opioid strategy.

It is difficult to envision better experience to bring to the Ninth Circuit bench. The following posts provide  more detailed profiles of the nominees.

Law & the Courts

Who Is Lawrence VanDyke?

Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

Lawrence VanDyke is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from Nevada. VanDyke graduated with highest honors with a B.S. degree from Montana State University-Bozeman in 1997 and received a master’s degree from the same school in 2000.

VanDyke worked at his family’s small construction management business before attending Harvard Law School​, where he served as an editor of both the Harvard Law Review and Harvard Journal of Law and Public Policy. He graduated magna cum laude from Harvard in 2005 and became an appellate attorney.

Following his law school graduation, VanDyke worked as an Associate Attorney at Gibson, Dunn & Crutcher LLP. Following his first year at the firm, he clerked for the Honorable Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit (2006-2007) and then returned to the firm. While in private practice, he handled pro bono matters for such diverse groups as the ACLU, the Free Market Foundation, and the Alliance Defending Freedom (ADF). His work for ADF included representing an Orthodox Jewish Day School in New York that was challenging discriminatory zoning.

In 2012, VanDyke began several years of service in the Solicitor General’s offices of three states, starting with service as Assistant Solicitor General of Texas. Between 2013 and 2014, he served as Solicitor General of Montana and was a candidate for the Supreme Court of Montana in 2014. In 2015, he was appointed Solicitor General of Nevada, a position he held until earlier this year.

VanDyke was born, raised, and has lived most of his adult life in the West; he has spent his legal career on the front lines fighting against federal government overreach threatening the livelihood of this region. Few nominees understand the unique challenges faced by states within their circuits the way VanDyke understands the challenges faced by states in the Ninth Circuit.  He has litigated a number of issues of particular concern to ranching, farming, and small business communities in the Western states.

In Nevada, VanDyke worked to establish a Federalism Unit to combat unlawful overreach by the federal government. He secured an injunction staying enforcement of the EPA’s 2015 “Waters of the United States” rule, which unduly expanded federal power over state and local waters and imposed onerous burdens on ranches and farms as well as government entities.

VanDyke’s challenge to the Bureau of Land Management’s over-broad sage grouse land plan compelled the agency to seek alternative means of meeting its goals. Had the plan been implemented, it would have withdrawn over 10 million acres of land from public use and additionally resulted in significant restrictions on livestock grazing and the development of renewable energy sources on over 16 million acres of public land in Nevada. He also filed an amicus brief opposing another instance of EPA overreach, a Clean Power Plan that threatened substantial hikes to consumers’ electric bills before the agency’s new rule was replaced during the Trump administration.

VanDyke also litigated in defense of the Second Amendment and religious freedom. He filed the multi-state amicus briefs at both the circuit and Supreme Court level in the Trinity Lutheran case. He was also part of the successful multi-state challenge to the Obama administration’s DAPA program, which attempted to legalize and grant numerous benefits to over 4 million illegal aliens without statutory authority. As the lead lawyer for a 22-state coalition, he successfully challenged the Obama administration’s Overtime Rule.

In sum, VanDyke has been the counsel of record on 28 briefs before the U.S. Supreme Court and argued over 20 appeals, most of them in the Ninth Circuit.

If confirmed, VanDyke would become the only circuit judge to have served as solicitor general for two states (in his case, both in the Ninth Circuit). He now serves as Deputy Assistant Attorney General in the Environment and Natural Resources Division of the U.S. Department of Justice.

Since law school, VanDyke has been a member of The Federalist Society. He has lectured widely on the law and tutored Nevada high school students. An avid competitive shooter, the International Defensive Pistol Association has ranked him at the skill level of Expert.

He is married and has three children.

Law & the Courts

Who is Patrick Bumatay?

(Leah Millis/Reuters)

Patrick Bumatay is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from California. Currently, he is a federal prosecutor in the U.S. Attorney’s Office for the Southern District of California in San Diego — a position he has held since 2012. Earlier this year, President Trump nominated Bumatay to be a district judge in the Southern District of California.

 41 years old, Bumatay graduated cum laude from Yale University in 2000, where he was a member of Phi Beta Kappa. He graduated from Harvard Law School in 2006, where he was articles editor of the Harvard Journal of Law & Public Policy — a leading law journal for conservative and libertarian legal scholarship. Harvard Law School awarded Bumatay a Heyman Fellowship in 2008 for his academic excellence and commitment to public service.

Following law school, Bumatay clerked for the Honorable Timothy Tymkovich of the U.S. Court of Appeals for the Tenth Circuit. After clerking, Bumatay joined Department of Justice as a political appointee — first in the Office of Legal Policy, where he worked on the confirmations of Chief Justice John Roberts, associate Justice Samuel Alito, and former attorney general Michael Mukasey — and later in the Office of the Associate Attorney General, where he assisted in the oversight of criminal and civil matters in the Antitrust, Tax, Civil, Civil Rights, and Environmental & Natural Resources Divisions.

Following a second federal clerkship for the Honorable Sandra Townes of the U.S. District Court for the Eastern District of New York from 2009–2010, Bumatay spent several years in private practice, at the law firm of Morvillo Abramowitz Grand Iason Anello & Bohrer, P.C. There, Bumatay represented clients in criminal, regulatory, and civil matters involving allegations of market manipulation, credit ratings fraud, procurement fraud, collateralized debt obligation fraud, mortgage-backed securities fraud, insider trading, and obstruction of justice.

In 2012, Bumatay joined the U.S. Attorney’s Office for the Southern District of California, his current post, where he is a federal prosecutor in the Criminal Enterprises and Narcotics sections. Bumatay has participated as lead counsel or second chair in at least nine bench and jury trials. He has also argued before the Ninth Circuit Court of Appeals.

In 2017, Bumatay was detailed to the Office of the Deputy Attorney General at the Department of Justice, where he worked on national opioid strategy and prison and reentry policies. In 2018, he moved to the Office of the Attorney General, advising the attorney general on criminal matters, national opioid strategy, transnational organized crime, and prison and reentry policies. In that role, Bumatay assisted in the management of the Drug Enforcement Administration, the Federal Bureau of Prisons, the U.S. Marshals Service, the Bureau of Alcohol Tobacco Firearms & Explosives, and Organized Crime Drug Enforcement Task Forces. He also supported the confirmations of Supreme Court Justices Neil Gorsuch and Brett Kavanaugh. Bumatay returned to the U.S. Attorney’s Office in San Diego earlier this year.

Bumatay has been an active member of The Federalist Society since law school. He is also a member of the Federal Bar Association, the National Asian Pacific American Bar Association, and the National Asian Pacific Islander Prosecutors Association. He is the author of “Causes, Commitments & Counsels,” published in the Journal of the Legal Profession in 2007.

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