Law & the Courts

This Day in Liberal Judicial Activism—March 6

The U.S. Supreme Court in Washington, D.C., November 13, 2018 (Al Drago/Reuters)

1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent. As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles: “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.” Further:  “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process. The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg). But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation. Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit. This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy.

Law & the Courts

Judicial Nominations Update

President Donald Trump speaks at the Conservative Political Action Conference (CPAC) annual meeting at National Harbor near Washington, D.C., March 2, 2019. (Yuri Gripas/Reuters)

Last week the Senate voted to confirm the first judicial nominee of the 116th Congress, Eric Miller  (Ninth Circuit), by a margin of 53 to 46, and more confirmations are expected this week.  Later this afternoon, the Senate is scheduled to vote on the confirmation of Allison Jones Rushing (Fourth Circuit). Senate Majority Leader Mitch McConnell has also filed for cloture on the nominations of Chad Readler (Sixth Circuit) and Eric Murphy (Sixth Circuit).

Also last week, the Senate Judiciary Committee voted to advance Neomi Rao (D.C. Circuit) to the Senate floor. On Thursday, the committee is expected to vote on the nominations of Joseph Bianco and Michael Park, President Trump’s nominees to the Second Circuit.

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

Current and known future vacancies:  170

Courts of Appeals:  15

District/Specialty Courts*: 155

Pending nominees for current and known future vacancies:  62

Courts of Appeals: 11

District/Specialty Courts*:  51

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination


Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Dan Bress (9th) 2/6/2019 27 No Not yet scheduled
Dan Collins (9th) 2/6/2019 27 No Not yet scheduled
Ken Lee (9th) 2/6/2019 27 No Not yet scheduled

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes  

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Joseph Bianco (2nd) 1/23/2019 41 2/13/2019
Michael Park (2nd) 1/23/2019 41 2/13/2019

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Allison Jones Rushing (4th) 1/23/2019 41 2/7/2019
Eric Murphy (6th) 1/23/2019 41 2/7/2019
Chad Readler (6th) 1/23/2019 41 2/7/2019
Bridget Shelton Bade (9th) 1/23/2019 41 2/7/2019
Paul Matey (3rd) 1/23/2019 41 2/7/2019
Neomi Rao (DC) 1/23/2019 41 2/28/2019

Nominees Awaiting Floor Votes:44

Courts of Appeals: 6

District/Specialty Courts: 38

Nominees Confirmed by the Senate during the 116th Congress: 1

Supreme Court: 0

Courts of Appeals: 1

District/Specialty Courts: 0

Nominees Confirmed by the Senate since Inauguration Day: 86

Supreme Court: 2

Courts of Appeals: 31

District/Specialty Courts: 53

Law & the Courts

A Fight for Better Courts in Iowa

(Carlos Jasso/REUTERS)

Those of us who care about the rule of law have long seen Iowa’s courts as a disaster. Over half a decade ago, I described Iowa’s Supreme Court as “easily one of the most flagrantly activist in the country.” Unfortunately, not much has changed since then.

Judicial selection in Iowa is still dominated by its adherence to the Soros-backed “merit selection” system, in which trial lawyer-controlled bar associations have the ability to stack the state bench with like-minded judges. Although merit selection has long been heralded as a way to depoliticize the courts, the opposite is actually true. An independent study by Vanderbilt Law Professor Brian Fitzpatrick found that picking judges in merit-selection states is every bit as political as it is in non-merit selection states — the only difference is that it results in far more left-wing judges.

Finally, though, there is hope for Iowa’s courts. The Iowa legislature is currently considering HF 503 and SF 237, the latter of which passed out of committee last week and will soon be presented for final passage in the House. Sponsored by Senator Julian Garrett and Representative Steven Holt, and supported by Governor Kim Reynolds, these bills would remove the state bar association’s disproportionate role in selecting members of the state’s appellate judicial-selection commissions, instead giving this role to elected legislative leaders.  While not perfect, passage of these bills would be an important step for Iowa. The result: judges that better reflect all Iowans, instead of just Iowa’s trial lawyers.

Iowa would not be the first state to reform its merit selection system. Other states have blazed this trail in recent years. In 2010, Oklahoma added two members to its judicial nominating commission appointed by legislative leaders, effectively diluting the influence of the state bar association on appointments. More drastically in 2014, over 60 percent of Tennessee voters approved Amendment 2, which dismantled that state’s merit selection system altogether.

While trial lawyer-backed attacks on the bills have come in heavy and fast, House Speaker Linda Upmeyer and Senate leader Jack Whitver have thus far held strong and appear to be committed to finally, at long last bringing badly needed court reform to Iowa. Here’s to hoping that they are successful.

Law & the Courts

Justice Kavanaugh on Religious Liberty

The views that Justice Kavanaugh has expressed in two recent decisions by the Supreme Court to deny review of lower-court decisions indicate that he is ready to make his mark on religious liberty. Whether there will be a majority for his views is less clear.

Yesterday, Kavanaugh, joined by Justice Alito and Justice Gorsuch, issued a five-page statement respecting the denial of certiorari in Morris County v. Freedom From Religion Foundation. In that case, the New Jersey supreme court interpreted New Jersey law to forbid Morris County from including religious buildings in its program of funding the preservation of historic buildings. Kavanaugh explains that the New Jersey supreme court’s conclusion that the exclusion of religious buildings did not violate the Free Exercise Clause and the Equal Protection Clause “is in serious tension with this Court’s religious equality precedents.” He concludes:

In my view, prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.

Six weeks ago, Kavanaugh joined Alito’s statement respecting the denial of certiorari in Kennedy v. Bremerton School District (as did Justices Thomas and Gorsuch). In that statement, Alito found “troubling” the Ninth Circuit’s “understanding of the free speech rights of public school teachers” and said that the Court’s correction of that understanding might well be needed. More momentously, he criticized the Court’s 1990 decision in Employment Division v. Smith (majority opinion by Justice Scalia) for “drastically cut[ting] back on the protection provided by the Free Exercise Clause” and the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison for giving minimal protection under Title VII to workers facing discrimination on the basis of religion. Alito’s observation that the certiorari petitioner did not ask the Court “to revisit those decisions” will surely be read by future petitioners as an invitation to make that request.

Law & the Courts

This Day in Liberal Judicial Activism—March 5

(Wikimedia Commons)

1970—A three-judge district court, consisting of Seventh Circuit judge Otto Kerner Jr. and district judges John W. Reynolds and Myron L. Gordon, rules that a Wisconsin law, dating from 1858, that prohibits abortion before quickening violates the Ninth Amendment.

Never mind that the Ninth Amendment sets forth a mere rule of construction—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—and cannot plausibly be read as the font of any rights.

2012—Despite affirming the district court’s entry of a permanent injunction barring police from imposing content-based restrictions on roadside demonstrations by anti-abortion protesters, a Fourth Circuit panel (in Lefemine v. Wideman) rules that the plaintiff protesters are somehow not “prevailing parties” eligible for an award of attorney’s fees.

On a petition for review, the Supreme Court will summarily reverse the Fourth Circuit panel in a unanimous per curiam opinion.

Law & the Courts

Smears Against Judicial Nominees Continue

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

Senate Democrats have discovered what they believe to be a winning formula to thwart President Trump’s judicial nominees: distorting one’s college writings in smear campaigns.  After launching similar attacks against Brett Kavanaugh and Neomi Rao, the left’s newest victim is Ken Lee, President Trump’s nominee to the Ninth Circuit from California.

I’ve previously discussed Ken Lee’s impressive credentials, but I will briefly recount them again here.  Mr. Lee is a graduate of both Cornell University (Phi Beta Kappa) and Harvard Law School (magna cum laude).  After graduating from law school, he clerked for Judge Emilio Garza of the U.S. Court of Appeals for the Fifth Circuit. He has been a partner in Jenner & Block’s Los Angeles office for the last decade, where he has amassed extensive litigation experience, including in the federal appellate courts.  He is also a former Associate White House counsel, serving in George W. Bush’s administration.

Mr. Lee is also Asian and an immigrant.  He moved with his family to Los Angeles when he was four years old, shortly after the military coup in South Korea, knowing no English.  His parents built a life for their family from the ground up.  His father, a highly educated engineer in South Korea, could only get a job repairing spray paint equipment in the United States. His mother was an acupuncturist.  Mr. Lee and his three sisters attended public schools in Los Angeles and learned English by watching American television.

Mr. Lee’s experience as a racial minority and first-generation American shaped his worldview and lead to a deep distrust of identity politics.  Recall that Rao felt similarly about identity politics, wrote about it in college, and faced a torrent of criticism from movement liberals who have made identity politics their bread and butter.

As a student at Cornell University, Mr. Lee was even more prolific.  He not only wrote for the Cornell Review, the school’s conservative and libertarian newspaper, but served as its editor-in-chief.  Besides committing more thoughts to paper at that young age, his writing displayed the bluntness so often displayed by student commentators, whether or not they were destined for a circuit court nomination.

For example, in an article titled “Separate & Unequal: Segregation on Campus,” he took offense to “ethnic theme houses” and “separate study lounges” (also a subject of Rao’s ire as a student) with the following observation:

The same universities that enact affirmative action programs to foster diversity and mutual understanding also encourage self-segregation along ethnic lines.  Their motivations arise partly in response to intimidation, and partly from well-intentioned but misguided liberal paternalism.

Several other articles strike a related theme of arguing why affirmative action policies are counterproductive and cautioned against what he called “victimization culture” or the “victimization mentality.” He included in his critiques Asian students groups on the left who “felt a need to portray themselves as oppressed to participate in a pernicious ethnic spoils system.”  He acknowledged the existence of racism, but regretted that “too many falsely view racism in every problem.”

Other college articles took issue with political correctness and other aspects of identity politics in language that was blunt, but also strove for a mix of the funny and self-deprecating, which should not come as a surprise at that age.

Not unlike Rao, after his days as a student were over, Mr. Lee’s writings reflected the maturity one would expect of the accomplished and respected attorney he became at a relatively young age.  This is evident beyond his writings.  He garnered the support of liberal colleagues, demonstrated a commitment to mentoring other minorities in the legal profession, and five years ago was named by California’s largest legal newspaper, the Daily Journal, as one of the state’s top 20 lawyers under 40.

Now nearly 20 years after graduating from law school, Mr. Lee is known as dedicated mentor, especially to young minority attorneys.  Far from the caricature painted by those who smear him, he is an active member of the diversity and inclusion committee of Jenner & Block in Los Angeles.  One of Mr. Lee’s law firm colleagues, David Russell, detailed how Lee has worked “to promote the careers of minority attorneys” and described him as “a great mentor.”  For these contributions, Mr. Lee was named “Mentor of the Year” in 2014.

Mr. Lee also has an extensive record of pro bono service.  Mr. Lee has defended a black inmate who alleged that he was abused by state correctional officers; a black man who alleged that he was beaten by police officers after a traffic stop; and a California death row inmate who unsuccessfully sought DNA testing from the state in an effort to vindicate himself.  He has also represented pro bono the Oakland Alliance of Black Educators and Los Angeles Urban League in an education rights case.

When he faces the committee for a hearing, I expect that in his maturity, he will explain why, like Rao and so many others of a certain age, he thinks and communicates differently now from the student he was a generation ago.  Do not expect him to get any credit from his home-state senators or anyone else on their side of the aisle.  They will operate from their tired playbook, grandstand in high dudgeon, and continue their corruption of the advice and consent process.

Law & the Courts

Is It Scandalous for Justice Thomas to Support a Former Clerk?

Last week, the Washington Post reported that Justice Clarence Thomas “is working behind the scenes” to support the nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. According to the report, Justice Thomas spoke to at least two Senators who had concerns about the Rao nomination. Some are scandalized by this report. Should they be? I don’t think so.

As I noted in this Twitter thread, it is incredibly common for judges to share their thoughts on prospective judicial nominees. The vetting processes done for prospective nominees performed by the White House, the American Bar Association, and various state advisory commissions (such as the advisory commission for Ohio on which I’ve served) routinely involve discussions with sitting judges about former clerks and attorneys who have appeared before them. I am also aware of numerous instances across multiple administrations in which sitting judges have, on their own initiative, shared their views of who should or should not replace them with the White House.

It is not scandalous for a judge to provide this sort of input. Indeed, it would be scandalous were such input not solicited as part of the nominee vetting process. Judges are often in a position to offer valuable insight into the temperament, character, and capabilities of prospective nominees, and we should want these perspectives to be considered by those evaluating prospective members of the federal bench, whether in the White House or in the Senate.

I do not know the extent of Justice Thomas’s conversations with various Senators beyond what has been reported, but there is nothing wrong with his willingness to speak to senators. Neomi Rao clerked for Justice Thomas on the Supreme Court and has co-taught classes with him at the George Mason University Antonin Scalia Law School. Any vetting process that did not include his perspective would be incomplete. So the fact that Justice Thomas may have spoken with senators who had concerns is far from scandalous. It’s part of how we should want the process to work.

Law & the Courts

This Day in Liberal Judicial Activism—March 4

Former Vice President Joe Biden speaks during a political rally in Newark, New Jersey, October 12, 2017. (Eduardo Munoz/Reuters)

2016—In an op-ed in the New York Times, Vice President Biden argues—or appears to argue (his prose meanders)—that the Senate has a constitutional duty to give a Supreme Court nominee a committee hearing and an up-or-down vote on the Senate floor.

Such a claim cannot be taken seriously. The Constitution (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Biden’s apparent claim is belied by his own history (as well as by the Senate’s longstanding practices for executive-branch officers and lower-court judges, whose nominations are governed by the same constitutional provision). In 2006, Biden was among the 25 Democrats who tried to filibuster the Supreme Court nomination of Samuel Alito in order to prevent an up-or-down vote on the Senate floor. And in a Senate floor statement in June 1992, Biden, as chairman of the Senate Judiciary Committee, made clear that, if a Supreme Court vacancy were to arise during the presidential campaign, his committee would not move forward on a nomination. (In his op-ed, Biden implausibly spins his 1992 statement.)

Law & the Courts

This Day in Liberal Judicial Activism—March 3

1970—“Generalizations about standing to sue are largely worthless as such.” That’s the ominous beginning of Justice William O. Douglas’s unanimous opinion in Association of Data Processing Service Organizations v. Camp, and it gets worse after that.

Douglas takes the Administrative Procedure Act’s grant of standing to a person “adversely affected or aggrieved by agency action within the meaning of a relevant statute” and expands it into a grant of standing to anyone who identifies any interest—whether “aesthetic,” “conservational,” “recreational,” “spiritual,” or economic—that is “arguably within the zone of interests to be protected by the statute … in question.”

As then-D.C. Circuit judge Antonin Scalia will observe in a 1983 law-review article, “It is difficult to exaggerate the effect which this interpretation of the ‘adversely affected or aggrieved’ portion of the APA had had upon the ability of the courts to review administrative action.”

Law & the Courts

Judicial Activism in Missouri

(Carlos Jasso/REUTERS)

Earlier this week the Missouri Supreme Court ruled in favor of a transgender teenager plaintiff who sued his school district alleging sex discrimination under Missouri’s Human Rights Act. The Missouri Supreme Court’s opinion reversed a lower state court decision that dismissed the suit.  Finding that the Missouri statute covers discrimination based only on one’s sex, not one’s transgender status, the lower court had ruled that the plaintiff failed to state a claim under Missouri law.

The Missouri Supreme Court’s majority opinion is remarkable for its flagrant disregard of the text of the Missouri statute at issue—not to mention decades of appellate court decisions refusing to expand the plain meaning of the word “sex” in analogous discrimination statutes.

The plaintiff in the suit alleged that he “is a female to male transgender teenager who was born as a female child and transitioned to living as male” while in the fourth grade. Notwithstanding his stated biological sex, the plaintiff alleged that his “legal sex is male.” The plaintiff claimed that he had been discriminated against by the school district “based on his sex” because he was not allowed to use male bathrooms and locker rooms.

The Missouri Human Rights Act prohibits discrimination in any place of public accommodation “because of race, color, religion, national origin, sex, ancestry, or disability.” The statute does not define the meaning of the word “sex.”

With little discussion, the majority opinion concluded that the plaintiff’s pleaded status—an individual whose “legal sex is male”—brings him within the statute’s reach. In contrast, Chief Justice Zel Fischer in his dissenting opinion undertook a textual analysis of the word “sex,” relying on a contemporaneous dictionary definition. Concluding that “[t]he plain, ordinary meaning of the word ‘sex’ refers to the biological classification of individuals as male or female,” he reasoned that the statute “prohibits discrimination based on the biological classifications of male or female and does not extend to the separate concept of transgender status.”

Chief Justice Fischer’s dissent also noted that the Missouri General Assembly had “expressly distinguished ‘sex’ from the concept of ‘sexual orientation,’ while repeatedly declining to adopt bills seeking to amend [the statute] to prohibit discrimination based on sexual orientation or transgender status.” In response, the majority confusingly and recklessly dismissed this fact as mere “legislative silence” that serves as a “poor beacon” for the court.

The dissent notes that the “overwhelming” majority of federal circuit courts have held that the federal sexual discrimination statute, Title VII, does not extend to discrimination not based on the binary conception of sex or gender. Yet Missouri now joins an alarming number of jurisdictions, including the Second and Seventh Circuits, that are suddenly re-interpreting decades-old discrimination statutes and expanding their reach to include transgendered individuals.

Sadly, the Missouri Supreme Court has earned its reputation as one of the most lawless courts in the country. For over a decade, the state has been engaged in a vigorous debate over the way in which judges of that court are selected; the dreaded commission-based “Missouri Plan” and decisions like this one are reminders of the desperate need for reform.

The people of Missouri deserve a supreme court that will follow the law. Instead they are stuck with one seemingly determined to follow prevailing political whims.

Law & the Courts

This Day in Liberal Judicial Activism—March 1

Former Chief Justice Earl Warren

1954—The Senate, by voice vote, confirms President Eisenhower’s nomination of former California governor Earl Warren to serve as Chief Justice. Warren was already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953.

Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. (To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.)

2005—Relying on “international opinion,” the Supreme Court, by a vote of 5 to 4, overturns its own precedent and rules in Roper v. Simmons that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. Roper starkly illustrates how the same justices who bow to the views of foreigners are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country. Here’s a summary:

When he was 17, Christopher Simmons planned a brutal murder. He assured his friends they could ‘get away with it’ because they were minors. In the middle of the night, Simmons and a friend broke into a woman’s home, awakened her, covered her eyes and mouth with duct tape, bound her hands, put her in her minivan, drove to a state park, walked her to a railroad trestle spanning a river, tied her hands and feet together with electrical wire, wrapped her whole face in duct tape, and threw her from the bridge. Exactly as Simmons planned, his victim drowned an unspeakably cruel death in the waters below.

Simmons confessed to the murder. At the death-penalty phase of his trial, the judge instructed the jurors that they could consider Simmons’s age as a mitigating factor, and the defense relied heavily on that factor. The jury recommended, and the trial judge imposed, the death penalty.

In his majority opinion (joined by Justices Stevens, Souter, Ginsburg, and Breyer), Justice Kennedy aims to discern “the evolving standards of decency that mark the progress of a maturing society.” Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in total—reject the death penalty for 16- and 17-year-olds. In dissent, Scalia counters that it makes no sense to count states that have no death penalty: “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.”

Kennedy then finds “respected and significant confirmation” for his ruling in “the overwhelming weight of international opinion against the juvenile death penalty.” According to Kennedy, the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child—which contains an express prohibition on capital punishment for crimes committed by juveniles—supports his conclusion that the juvenile death penalty is unconstitutional. But as Justice Scalia observes in dissent, “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States,” the United States’ non-ratification of Article 37 undercuts the majority’s position. Scalia also points out that the justices in the majority would never aim to conform American law to the rest of the world on matters like the exclusionary rule, church-state relations, and abortion.

Law & the Courts

A Survey of Neomi Rao’s Constitutionalist Philosophy

Neomi Rao testifies before the Senate Judiciary Committee, February 5, 2018. (Screengrab via C-SPAN)

Throughout her career as a constitutional law scholar, Neomi Rao has made clear that she embraces the text and original public meaning of the Constitution, that she is exceptionally strong on separation of powers issues, and that she understands the proper role of judges in our form of government.

As a fellow former law clerk to Justice Clarence Thomas, I am privileged to have known Neomi for many years, and I have been continually impressed by her work.  But for those who are less familiar with that work, below are some excerpts that provide a sense of how she views the Constitution and the role of judges.  She will be a superb addition to the D.C. Circuit, and I eagerly anticipate her confirmation.

Political Philosophy of Next President Makes a Difference, Richmond Times Dispatch, Oct. 7, 2008, at A11.

Judicial independence is not carte blanche to spend a lifetime legislating from the bench. The work of the Supreme Court is too difficult and important to be left to a political philosophy of empathy. These judgments of the heart have little place in a society ruled by laws and not by men.

Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015).

In arguing against the conventional legal wisdom that Congress is incentivized to protect its legislative power and avoid excessive delegations, Rao relies extensively on James Madison’s framework.  See footnotes 14, 101, 139, 141-47, 189, & accompanying text.

Limits on delegation are fundamental to the constitutional structure, yet expansive delegations provide the foundation for the modern administrative state. The judicial tolerance for such delegations depends on a practical view, that they are essential in a complex society, and also on a conventional legal view, that structural checks and balances will deter excessive delegations because Congress will jealously guard its lawmaking power from the executive. . . . [T]he conventional legal understanding is wrong, or at least incomplete. Delegation undermines separation of powers, not only by expanding the power of executive agencies, but also by unraveling the institutional interests of Congress.

On the Use and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 201 (2008).

[T]he European or postwar conceptions of human dignity are unlikely to occupy a central place in the United States because there is no explicit textual commitment to ‘human dignity’ in the United States Constitution. In a constitutional system that generally favors textualism and still has a strong formalist tradition, this is an infirmity for the principle. The lack of a textual hook will make it more difficult for the Supreme Court to develop ‘human dignity’ as a free standing right and to retain legitimacy with regard to the creation or development of such a right.

Of course, protection or respect for human dignity could be developed as an unenumerated right similar to ‘privacy.’ [footnote omitted] Human dignity could be ‘discovered’ in ‘emanations’ from various constitutional provisions. . . .

Even such judicial willfulness, however, may be insufficient to sustain a right to human dignity because of the truly open-ended nature of the concept. The judicially recognized unenumerated rights are fairly limited, and precedents based on this type of reasoning are subject to significant criticism. Moreover, even if the Supreme Court were to recognize a more robust form of human dignity as a ‘right,’ the lack of textual grounding will pose recurring questions of legitimacy.

Like Scalia, the Law School at George Mason U. Has a Maverick Streak, Dean Says, Washington Post, Apr. 5, 2016 (with Henry N. Butler).

In a legal culture rife with legal realism — the belief that the law is what the judge ate for breakfast — Justice Scalia restored the study of law as law. . . . According to some judges and law professors, the laws and the Constitution serve as only an inkblot for public values, norms, and the promotion of justice. By contrast, Justice Scalia championed the idea that judges must strive to serve as faithful interpreters of the actual law. When interpreting a statute, he looked to the fair meaning of its words, not the intentions of congressmen. When interpreting the Constitution he sought to ascertain its original meaning, rather than grasp at its penumbras.

Remembering Justice Antonin Scalia, Antonin Scalia Law School News, Mar. 1, 2016. 

Even those judges, lawyers, and law professors who disagreed with [Justice Scalia’s] methods of interpretation had to take seriously the text of statutes and the original meaning of the Constitution.

Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Fla. L. Rev. 1 (2018). 

Rao dedicated an entire law review article last year to analyzing “the meaning of ‘legislative power’ by examining the collective Congress in the text, structure, and history of the Constitution.” She discussed the Framers’ philosophical underpinnings in order to “recover[] the meaning and importance of the ‘legislative power’ vested in Congress.” She identified what had been lost and who had lost it:

Progressives who favored regulation over legislation understood that this was inimical to our constitutional form of government. They offered expertise, efficiency, and flexibility as a replacement to the old constitutional forms of separation of powers. Yet lawmaking by a representative legislature offers other values that are now often forgotten.​

The President’s Sphere of Action, 45 Williamette L. Rev. 527 (2009).

In this 29-page law review article discussing the president’s power to interpret the law, Rao made 20 references to the Framers or Founders generally and eight references to Madison specifically in crafting her argument. See footnotes 3-5, 15, 34, 37, 94, 120 (Framers), 100 (Founders), 3-4, 15-16, 47, 97, 116, 120 (Madison) & accompanying text.

The Framers of our Constitution . . . . carefully delineated the legislative, executive and judicial powers and then explicitly provided mechanisms for each branch to thwart the ambitions of the others. The Constitution confers on each branch the means of self-defense commensurate to its constitutional powers.

Taking a Constitutional, Commentary, Jan. 2010 (reviewing Seth Lipsky, The Citizen’s Constitution (2009)). 

Rao on the do-over of President Obama’s oath of office in 2009:

Whether or not this do-over was legally required for Obama to take office, the decision to take the oath again suggests the importance of the specific requirements of the Constitution: fidelity to its simple but powerful commands. The chief justice misplaced just one word. But the Constitution does not require the president to take something like the oath of office or pretty close to the oath of office. The Constitution prescribes a particular oath for the president, and Obama made sure to swear that precise oath, as opposed to something very close to that oath.

Law & the Courts

This Day in Liberal Judicial Activism—February 28 and 29

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

2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.

In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.”

Feb. 29, 1892—“It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers.” A unanimous Supreme Court declares this spirit-of-the-law canon of nontextualism in Church of the Holy Trinity v. United States, as it holds that a federal law barring anyone from assisting or encouraging the importation of an alien by entering into a contract in advance with the alien “to perform labor or service of any kind in the United States” did not apply to a contract by which a church in New York contracted with E. Walpole Warren, an alien residing in England, to become its pastor.

The Court acknowledges that the law, in spelling out specific exceptions for professional actors, artists, lecturers, singers, and domestic servants, “strengthens the idea that every other kind of labor and service was intended to be reached.” But its examination of legislative history leads it to assert that “the intent of Congress was simply to stay the influx of … cheap unskilled labor.”

Law & the Courts

Blue Slips 101 (Again)

Senator Amy Klobuchar (D, Minn.) on Capitol Hill in Washington, D.C., September 4, 2018. (Joshua Roberts/Reuters)

Let’s go over blue slips one more time.

On February 26, the Senate confirmed the nomination of Eric Miller to the U.S. Court of Appeals for the Ninth Circuit. After nearly a decade in the Justice Department during the George W. Bush and Barack Obama administrations, Miller had become a partner in the law firm of Perkins Coie in Seattle, chairing the firm’s nationwide appellate practice. He had argued 16 cases before the Supreme Court.

The wrinkle was that Washington’s two senators, Patty Murray and Maria Cantwell, did not support Miller. Democrats cried foul, with Senator Amy Klobuchar claiming that this was the first time the Senate had confirmed an appeals-court nominee who did not have the support of both home-state senators. She even tied this to the way America’s founders themselves had designed the Senate to operate.

The Senate has a tradition, going back to 1917 (not to the birth of the republic), of highlighting the views of the senators from the state in which a judicial nominee would serve. It’s called the “blue slip” courtesy because the Judiciary Committee chairman seeks the home-state senators’ position on a blue slip of paper.

The Constitution does not require that any special attention be paid to the views of any particular senators. Neither do Senate or Judiciary Committee rules. That’s why this is best described as a “tradition” or a “courtesy.” The facts of how it has been implemented cannot be in dispute.

Seventeen of the previous 19 Judiciary Committee chairman — seven Democrats and ten Republicans — have used the blue-slip courtesy for its intended purpose, that is, for input. Only two used it as a veto, refusing to give a hearing to nominees without the expressed support of both home-state senators. When a blue slip was simply withheld, as Murray and Cantwell did with Miller, chairmen from Ted Kennedy to Strom Thurmond proceeded as if the home-state senators supported the nominee.

Klobuchar was correct in saying that the Miller vote was the first time that the Senate confirmed an appeals-court judge not supported by the home-state senators. But let’s give Murray and Cantwell the full credit they are due. They’ve almost never met a Trump judicial nominee they could support.

During the 115th Congress, the Senate took 58 roll-call votes on Trump judicial nominees. Murray voted against 61 percent of those judges, and Cantwell opposed 63 percent. More important, when it came to appeals-court nominees, Murray voted against 81 percent of them, and Cantwell opposed 83 percent.

With all due respect to Judge Miller, therefore, there’s really nothing special about him to Murray and Cantwell. He’s like dozens of other highly qualified men and women they opposed for the bench who, like Miller, were nominated by the current president.

The rest of the Senate certainly did not need a blue slip of paper to learn that Murray and Cantwell oppose another Trump appeals-court nominee. What else is new?

Law & the Courts

This Day in Liberal Judicial Activism—February 27

(Yong Hian Lim/Dreamstime)

1998—In Brause v. Bureau of Vital Statistics, Anchorage trial judge Peter A. Michalski rules that Alaska’s statutory definition of marriage as between “one man and one woman” violates the state constitution unless Alaska can show a “compelling state interest” in support of its definition. In November 1998, Alaska voters approve, by a 68% to 32% margin, a state constitutional amendment defining marriage as between a man and a woman.

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