Senior-Eligible Judges

The Senate will have the capacity to confirm lots of federal appellate judges in 2020. The only big question is whether there will be many vacancies. The answer to that question turns largely on how many sitting judges who are, or will soon be, eligible to take senior status (or retire) decide to do so.

In April, I identified the dozens of senior-eligible appellate judges. Since that time, six or so have taken senior status or announced their decision to do so. Given the likelihood that other judges will use the year-end holidays to reflect on whether they should follow suit, I figured I would update and republish the list so that you will see where vacancies might arise.

As before, I emphasize that I express no opinion on whether any particular judge should take senior status.

As a general rule, judges appointed by Democratic presidents are much less likely than judges appointed by Republican presidents to step down over the next few months. For that reason, I set forth the judges in two sets.

Here are the 29 appointees of Republican presidents who are (or, as noted, will soon be) eligible to take senior status:

D.C. Circuit: Henderson, Griffith (June 2020)

First Circuit: Torruella, Howard (November 2020)

Second Circuit: Hall

Third Circuit: Smith

Fourth Circuit: Niemeyer, Wilkinson, Agee (November 2020)

Fifth Circuit: Jones, Smith, Southwick, Owen (June 2020)

Sixth Circuit: Gibbons, Griffin

Seventh Circuit: Easterbrook, Flaum, Kanne, Rovner

Eighth Circuit: Benton, Loken, Shepherd

Ninth Circuit: Callahan, Smith, Ikuta (June 2020)

Tenth Circuit: Hartz

Federal Circuit: Lourie, Newman, Prost

And here is the list of 38 such appointees of Democratic presidents:

D.C. Circuit: Garland, Rogers, Tatel

First Circuit: Lynch, Thompson (August 2020)

Second Circuit: Cabranes, Chin, Katzmann, Pooler

Third Circuit: Ambro, McKee

Fourth Circuit: Floyd, Gregory*, King, Motz, Keenan (March 2020)

Fifth Circuit: Dennis, Stewart

Sixth Circuit: Clay, Cole, Donald, Moore

Seventh Circuit: Wood

Ninth Circuit: Berzon, Fletcher, Gould, Graber, McKeown, Paez, Rawlinson, Thomas, Wardlaw

Tenth Circuit: Briscoe, Lucero

Eleventh Circuit: Wilson, Martin (August 2020)

Federal Circuit: Dyk, Wallach

* Gregory was recess-appointed to the Fourth Circuit by President Clinton but holds his lifetime position by virtue of President George W. Bush’s appointment.

Update (11/25): I have made two corrections to the list of appointees of Democratic presidents. I have removed James Wynn of the Fourth Circuit (he will not become senior-eligible until August 2022), and I have added Beverly Martin of the Eleventh Circuit.

Law & the Courts

This Day in Liberal Judicial Activism—November 18

2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution. The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.

Law & the Courts

This Day in Liberal Judicial Activism—November 17

(Shutterstock)

2014—For the second month in a row, the Supreme Court (in Frost v. Van Boening) summarily reverses an opinion authored by Ninth Circuit judge Sidney Thomas. Thomas, a native of Montana, was trotted out in 2010 as a supposed moderate candidate for the Supreme Court vacancy that Elena Kagan ended up filling, but he keeps showing that he’s really just Stephen Reinhardt dressed up in a cowboy hat.

2016—In an American Bar Association panel discussion, former Obama White House counsel Kathryn Ruemmler candidly acknowledges that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the vacancy arising from Justice Scalia’s death.

Ruemmler’s remark shows that she (sensibly) rejects the “silly” and “obviously fatuous” claim by Erwin Chemerinsky, Larry Tribe, and some other law professors that the Senate had a constitutional duty to hold a hearing and vote on President Obama’s nomination of Merrick Garland. But neither her statement nor the obvious lack of merit of the constitutional claim will deter some from continuing to peddle it.

Law & the Courts

This Day in Liberal Judicial Activism—November 16

1993—In Steffan v. Perry, a trifecta of Carter appointees on the D.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct. Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).

2009—In a per curiam opinion in Wong v. Belmontes, the Supreme Court summarily reverses the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez. In dissent was Judge Diarmuid O’Scannlain. That’s the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court).

Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

2017—In a divided panel ruling (in United States v. United States District Court), the Ninth Circuit denies the federal government’s request to block an order of the district court that requires it to provide a broad array of documents relating to its decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. The majority opinion is co-authored by Judge Kim McLane Wardlaw and Judge Ronald M. Gould (each appointed by President Clinton).

In dissent, Judge Paul J. Watford (appointed by President Obama) objects that the district court’s order improperly “sweeps far beyond materials related to the sole reason given for rescinding DACA” and includes “materials [that] are deliberative in character,” possibly including communications with “high-level officials in the White House,” and thus raises “sensitive separation-of-powers concerns” that justify granting the government’s request.

One month later, a unanimous Supreme Court will vacate the Ninth Circuit’s order and will direct the district court that it “may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.”

Law & the Courts

This Day in Liberal Judicial Activism—November 15

(Photo: Wiriya Srisunsanee/Dreamstime)

2012—By Any Means Necessary, indeed. That phrase—a shorthand for the very long name of the group challenging Michigan’s Proposal 2—aptly describes the modus operandi of the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the University of Michigan.

Proposal 2 is the state constitutional amendment that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” By an 8 to 7 vote, the Sixth Circuit rules that Proposal 2’s guarantee of equal treatment violates the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, calls an “extreme extension” of two Supreme Court rulings, the majority holds that the embedding of the nondiscrimination rule in the state constitution somehow violates the “political-process doctrine.”

In April 2014, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will reverse the Sixth Circuit by a 6-2 vote.

2015—In Adkins v. City of New York, federal district judge Jed S. Rakoff rules that “transgender people are a so-called ‘quasi-suspect class’” and that governmental treatment of people who identify as transgender must be subject to “intermediate” judicial scrutiny.

Under Rakoff’s approach, he and other federal judges, in the supposed name of the Constitution, would be deciding such matters as whether boys who think they’re girls must be allowed to use the girls’ restrooms, locker rooms, and showers in public schools.

Law & the Courts

Supreme Court Should Grant Cert on Morrissey-Berru v. Our Lady of Guadalupe School

(File photo: Patrick Semansky/Pool/via Reuters)

In the coming weeks, the Supreme Court will consider whether to grant a petition for certiorari filed by the Becket Fund in Morrissey-Berru v. Our Lady of Guadalupe, which concerns the proper scope of the “ministerial exception.” We filed an amicus brief supporting the petition on behalf of a group of distinguished religious-liberty scholars.

As the Supreme Court recognized in the Hosanna-Tabor decision in 2012, the ministerial exception protects the right of religious groups to “shape [their] own faith and mission through [their] appointments.” In order to exercise genuine autonomy under the Religion Clauses of the First Amendment, churches must be free to decide for themselves who will hold positions of significant religious responsibility. This means that a religious organization cannot be subject to legal penalties for hiring or firing such employees, even if the hiring or firing is alleged to be “discriminatory” or otherwise improper in the eyes of the civil authorities.

The protected category of religious employees includes, most obviously, the traditional role of “ministers” in the Protestant tradition. But as Justices Alito and Kagan have pointed out, it cannot be limited to “ministers,” because “most faiths do not employ the term ‘minister,’” and “some eschew the concept of formal ordination” altogether. For this reason, they explained, a proper respect for the autonomy of all religious faiths requires the government to refrain from interfering in the hiring or firing of any employee “who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

In Our Lady of Guadalupe, the Ninth Circuit refused to apply the ministerial exception to a teacher at a Catholic school who played a critical role in the Catholic Church’s mission of conveying the faith to the next generation. The case involves a fifth-grade teacher at Our Lady of Guadalupe School. Her duties required her to teach the tenets of Catholicism, lead her students in daily prayer, and plan the liturgy for the school’s monthly Mass. To ensure that she was qualified to serve as a religious teacher, the Archdiocese of Los Angeles required her to take a course to become a certified Catechist.

After the school declined to renew the teacher’s contract due to her performance, she sued the school for age discrimination. A federal district court rejected her claim, holding that civil courts could not second-guess a Catholic school’s judgment over who should serve as one of its religion teachers. That decision was consistent with a long line of cases holding that religious schools must retain full autonomy over such employment decisions.

On appeal, however, the Ninth Circuit reversed. Although the court acknowledged that the teacher had “significant religious responsibilities,” it nonetheless held that the ministerial exception did not bar her claim, in part because her title of “Teacher” was secular, and she did not hold herself out to the public as a religious “minister.” Rather than focus on the critical religious function the teacher played, the court dwelled on these formalistic factors to deny the school’s right to control who will teach religion to its students.  This decision not only defied Supreme Court precedent, but also created a circuit split with every other federal appellate circuit in the country that has considered the issue.

As our amicus brief explains, the Supreme Court should grant review to resolve the circuit split and correct the Ninth Circuit’s aberrant ruling, which is shorn from the purpose of religious autonomy that the ministerial exception embodies. The ministerial exception is firmly grounded in the original understanding of both the Free Exercise and Establishment Clauses of the First Amendment. Those provisions were widely understood by the Founders to ensure that the government would not interfere in churches’ selection of key religious personnel. This principle traces back to the Lockean view that private religious societies cannot survive and flourish unless they are free to set their own terms of association. “[S]ince the members of this society . . . join[] it freely and without coercion, . . . it follows that the right of making its laws must belong to the society itself.”  A church’s freedom of association — “the power to remove any of its members who break its rules” — is thus vital, as “the society would collapse” if its members (much less its teachers) could “break [its laws] with impunity.” In the words of Thomas Jefferson, “[t]he principles of the [C]onstitution” provide “a sure guaranty” that a religious institution “will be permitted to govern itself according to its own voluntary rules without interference from the civil authority.”  The Supreme Court’s decisions, including in Hosanna-Tabor, embody this constitutional tradition of religious autonomy, repeatedly reaffirming that to govern themselves, religious bodies must have the freedom to appoint and remove key personnel who will shape their faith communities.

Teachers of religion at parochial schools fall in the very heartland of this doctrine. If religious schools cannot decide for themselves who is qualified to teach the faith to the next generation, then their core mission of perpetuating their religious message will be critically compromised. And if civil courts attempt to adjudicate whether a religious school’s rationale for hiring or firing a religious teacher is “legitimate” or unlawfully “discriminatory,” they will inevitably entangle themselves in religious controversies—where secular authorities have no place.

Law & the Courts

Confusion in Comcast

(Leah Millis/Reuters)

Yesterday the Supreme Court heard oral arguments in Comcast Corp. v. National Association of African American-Owned Media and Entertainment Studios Networks, where the question before the Court is “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?”

The case arose when Entertainment Studios Networks, which is solely owned by the actor Byron Allen, sued Comcast over its decision not to carry several of its television channels, alleging that it was motivated by racial discrimination. The district court dismissed the complaint for failing to state a claim on which relief can be granted, and the Ninth Circuit reversed, holding that a plaintiff under § 1981 need only allege that racial discrimination was a motivating factor in the refusal to contract to survive a motion to dismiss. Comcast appealed, arguing that it was insufficient to allege race as merely a factor instead of the “but-for” cause of a contract’s denial.

The text of the statute makes this a straightforward case. Section 1981, first enacted by Congress as part of the Civil Rights Act of 1866, guarantees “[a]ll persons . . . the same rights . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The requirement of “but-for” causation is simply a way of repeating the point that a party does have the “same right” to make a contract if a contract’s denial would have occurred if that party were white. The statute’s text additionally provides guidance that “in all cases where” the laws of the United States are “not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law . . . shall be extended to and govern said courts in the trial and disposition of such cause.” The common law at the time of enactment clearly required but-for causation, regardless of whether the courts employed that specific term of art.

It was not until it passed the Civil Rights Act of 1991 that Congress adopted a motivating-factor standard for an antidiscrimination law in place of the default rule. But significantly, that standard was applied only to some claims made under Title VII of the Civil Rights Act of 1964, not to the 1866 Act. And in fact the 1991 law included unrelated amendments to § 1981 without applying the motivating-factor standard to that statute.

In an opinion by Justice Kennedy, the Supreme Court reiterated as recently as 2013, in University of Texas Southwestern Medical Center v. Nassar, the “textbook tort law that an action ‘is not regarded as a cause of an event if the particular event would have occurred without it.’” This remains “the default rule[] [Congress] is presumed to have incorporated, absent an indication to the contrary in the statute itself.”

It might have been the weight of statutory reality that backed Erwin Chemerinsky, arguing for the plaintiffs, into a corner during oral argument. Retreating from the broadly worded question presented of whether a claim of race discrimination under § 1981 fails in the absence of but-for causation, Chemerinsky argued that the question was confined to the pleading stage and that the Court could rule a motivating-factor allegation sufficient without addressing subsequent stages of litigation. Justice Gorsuch balked at his suggestion: “We haven’t made some special exception for [the] pleading stage.” Justice Alito followed that “if but-for cause is the standard at the end of the day” but a complaint concedes that racial animus was not a but-for cause, “the case should be permitted to go forward toward its inevitable doom?” Justice Kagan had a similar reaction: “Motivating factor you can take out and the outcome would still be the same. And it just seems quite confusing to me to put in something that’s not the same question as the ultimate question at the pleading stage . . . .” In response, Chemerinsky could not identify any area in which a plaintiff does not have to plead what he has to prove.

Even for the one area in which Congress has adopted a motivating-factor standard — discrimination claims under Title VII — but-for causation is an affirmative defense to liability under Price Waterhouse v. Hopkins (1989). It is thus true that some Title VII plaintiffs do not need to plead but-for causation, but because it is not an element of their claim; it is an element of a defense. Chemerinsky’s basic notion that there can be a mismatch between what a plaintiff needs to plead and prove has nothing to do with burden-shifting.

The real question should be whether Chemerinsky’s client has adequately pleaded but-for causation — but that is not the question before the Supreme Court. In Bell Atlantic Corp. v. Twombly (2007), the Supreme Court made clear that a complaint must allege sufficient facts that, if accepted as true, would “state a claim to relief that is plausible on its face.” In Ashcroft v. Iqbal (2009), the Court reiterated that it was not enough to advance factual allegations that are “‘merely consistent with’ a defendant’s liability.” A complaint that admits to an “obvious alternative explanation” for the defendant’s conduct must be dismissed absent additional factual content that pushes the claim “across the line from conceivable to plausible.”

In a case like Comcast, it is not enough simply for a plaintiff to say that he is black and the person who received the contract is white. That may make discrimination conceivable, but it does not make it plausible. Some justices, however, seemed to water down the test for a sustainable standard. Justice Kavanaugh referred to the pleading threshold as “a pretty low bar” that means race-discrimination cases “are not usually thrown out at the motion to dismiss stage.” The Court should not say something about the pleading standard — especially when it is not even the question before the Court — that would threaten to undercut Iqbal and Twombly. The Court should make clear that plaintiffs in § 1981 cases have to allege but-for causation, and they have to do so under the same Iqbal/Twombly standard that applies to everyone else.

Law & the Courts

This Day in Liberal Judicial Activism—November 14

President George W. Bush with judicial nominee, Priscilla Owen in the Oval Office at the White House in Washington, D.C., May 24, 2005. (Shaun Heasley/Reuters)

2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit. Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.  Brown is confirmed in June 2005, nearly two years after she was first nominated. Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.

Law & the Courts

Judicial-Nominations Update

A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, U.S., June 14, 2019 (Jonathan Ernst/Reuters)

Last week, the Senate confirmed two more of President Trump’s court of appeals nominees, Danielle Hunsaker (Ninth Circuit) and William Nardini (Second Circuit). This brought the number of federal appellate court judges confirmed since Inauguration Day to 45 — yet another new record for President Trump.

Also last week, President Trump announced his intent to elevate Andrew Brasher to the Eleventh Circuit. Brasher is currently a district judge in the Middle District of Alabama who was nominated to that seat by President Trump, and confirmed by the Senate earlier this year. Brasher joins two other excellent nominees to the Eleventh Circuit who are awaiting Senate floor votes, Barbara Lagoa, and Robert Luck. If confirmed, these would be President Trump’s fourth, fifth, and sixth appointees to the Eleventh Circuit, respectively — an incredible transformation of that court.

Finally, Senate majority leader Mitch McConnell filed for cloture (to end debate) on Steven Menashi’s nomination. After months of smears, it’s high time for Mr. Menashi to receive a Senate floor vote, which could come as soon as tomorrow. Assuming he is confirmed, the Second Circuit would flip from majority Democrat-appointed active judges to majority Republican-appointed active judges.

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

Current and known future vacancies: 117

Courts of Appeals:  7

District/Specialty Courts*: 110

Pending nominees for current and known future vacancies:  50

Courts of Appeals: 6

District/Specialty Courts*:  44

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
Andrew Brasher† Pending N/A N/A Not Yet Scheduled

The President announced his intent to nominate Andrew Brasher on November 6, 2019. His nomination has 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) 6/24/19 142 7/17/19
Lawrence VanDyke (9th) 10/15/19 29 10/30/19
Patrick Bumatay (9th) 10/15/19 29 10/30/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Steven Menashi (2nd) 9/9/19 65 11/7/19
Barbara Lagoa (11th) 10/15/19

 

29 11/7/19
Robert Luck (11th) 10/15/19

 

29 11/7/19

 Nominees Awaiting Floor Votes: 29

Courts of Appeals: 3

District/Specialty Courts*: 26

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: 11

Nominees Confirmed by the Senate during the 116th Congress: 79

Supreme Court: 0

Courts of Appeals: 15

District/Specialty Courts*: 64

Nominees Confirmed by the Senate since Inauguration Day: 164

Supreme Court: 2

Courts of Appeals: 45

District/Specialty Courts*: 117

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

Law & the Courts

This Day in Liberal Judicial Activism—November 13

Justice Stephen Breyer (Chip Somodevilla/Getty)

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination.

Law & the Courts

There She Goes Again

This CNN article on a new book of conversations with Justice Ruth Bader Ginsburg shows that Ginsburg continues her astounding practice of public statements that seem difficult to reconcile with the judicial duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The article quotes Ginsburg as saying that she’s “skeptically hopeful” that the Court’s abortion precedents will survive, as Roe “has pretty strong precedential weight by now.” Asserting that “good precedent [sic; hardly an apt description of Roe] built up over years should survive challenge,” she asks, “And how would the chief justice want his court to be perceived when history is told years later?”

I would hope that Chief Justice Roberts would want “his court” to be perceived as one that didn’t blink at correcting a gross constitutional error that has corrupted American politics for more than four decades and as one that wasn’t cowed by the sort of public intimidation that Ginsburg and others try to wreak.

Ginsburg goes on to describe the Roberts Court “as one of the most activist in history”—“based,” according to the article, “on instances when it has overturned legislation passed by Congress.” Jonathan Adler addressed this canard of Ginsburg’s some years ago. As he pointed out then, apart from being unsound, Ginsburg’s claim is curious as she “votes to overturn federal legislation as much as any justice on the Court other than Justice Kennedy.”

Law & the Courts

This Day in Liberal Judicial Activism—November 12

Justice Harry Blackmun.

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.

1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

Law & the Courts

Call for Alito and Kavanaugh Recusal Exposes Glaring Double Standard

Supreme Court Associate Justice Brett M. Kavanaugh in Washington, D.C., December 3, 2018. (Jabin Botsford/Pool via Reuters )

As Newsweek has reported, Aaron Belkin, the executive director of the liberal activist group Take Back the Court, sent a letter last week to Justices Alito and Kavanaugh demanding that they recuse themselves from the three pending Title VII cases before the Court. The reason: They met and posed for a picture with Brian S. Brown, the president of the National Organization for Marriage (NOM), an organization that has filed an amicus brief in those cases.

Belkin’s letter makes clear his organization’s belief that anything short of recusal would be unethical and asserts, “The credibility and impartiality of the current Supreme Court is in tatters. Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts’ assertion that a judge’s role is to impartially call balls and strikes.”

Since the letter confines its ire to those two justices, let’s consider whether Belkin himself is calling balls and strikes in reaching the conclusion that those two conservative justices must disqualify themselves.

First, some context: Brown did indeed meet the two justices. It was as part of a group that took a photo on October 29. Aside from the two justices and Brown, the photo included Cardinal Gerhard Ludwig Müller, Princess Gloria von Thurn und Taxis, and an unidentified priest. Brown posted the photo to his personal Twitter account on October 29 under the caption, “Great day at US Supreme Court #SCOTUS with #CardinalMueller, Princess Gloria #ThurnundTaxis with Justices #SamuelAlito and #BrettKavanaugh.”

The photo, and the only publicly known context for the meeting, appeared in a short article by Brown — not on the NOM website, but on the website of another organization of which Brown serves as president: the International Organization for the Family (IOF). So Brown wears more than one hat, and the article is primarily about Cardinal Müller. It begins by noting details about an event featuring the cardinal that IOF co-sponsored in Washington on October 25 and then discusses several days Brown spent with the cardinal at various meetings.

The article’s only reference to the justices (in contrast to the seven references in the article to Müller) is as follows:

This past week, I had the distinct honor of accompanying Cardinal Müller and Princess Gloria at a number of important meetings in Washington. Certainly a major highlight of our meetings was the opportunity to spend time with Supreme Court Justices Samuel Alito and Brett Kavanaugh.

While that description offers no content of any conversation between Brown and the justices, the overarching context suggests a church-themed visit by the two Catholic clergymen and Princess Gloria, a prominent supporter of the Church, accompanied by Brown. Belkin does not mention the IOF, identify the others in the photo, or acknowledge any aspect of this broader context. Neither has he (or anyone) intimated that the Title VII or any other cases came up in discussion.

Second, consider the level of inconsistency it requires to maintain that a meeting such as this one, likely fleeting and superficial, demands recusal, while maintaining at the same time that numerous protracted public appearances other justices have made at institutions and/or with individuals that were signatories of briefs before the Court do not require recusal. Consider the following recent examples involving the Court’s most liberal members:

  • The Regents of the University of California are the named party challenging the Trump administration’s wind down of the DACA policy in Dept. of Homeland Security v. Regents of the Univ. of California. Regardless, Justice Kagan spoke in a colloquy at UC-Berkeley with the law school’s dean, Erwin Chemerinsky, on September 23. On top of his school’s interest in the DACA litigation, Chemerinsky had submitted an amicus brief in another pending Supreme Court case, Mathena v. Malvo. On October 21, Justice Ginsburg inaugurated a lecture series at Berkeley Law School.
  • On October 9, Justice Kagan participated in a colloquy at a DC synagogue with Seth Waxman, who had filed an amicus brief in the same three Title VII cases as NOM.
  • On October 19, Justice Sotomayor was interviewed by Heather Gerken, the dean of Yale Law School, at a university alumni event on campus. Earlier that month, Yale University had submitted an amicus brief in the DACA case.
  • On October 21, Justice Kagan spoke at a colloquy with law professor Robert Stein at the University of Minnesota. In September, the Regents of the University of Minnesota had filed a cert petition, which is still pending, in a sovereign immunity case, Regents of the University of Minnesota v. LSI Corp.
  • On October 22, a week before the Alito and Kavanaugh meeting, Justice Kagan spoke at the law school of the University of Colorado, which had signed an amicus brief in the DACA case.
  • On October 30, the day after Brown met with Alito and Kavanaugh, Justice Ginsburg spoke at Georgetown Law School, in a lecture series bearing her name, on a panel with Bill and Hillary Clinton. Georgetown University had submitted another amicus brief (the one signed by Yale) in the DACA case.

These are just a few examples taken merely from the last seven weeks of justices involving themselves very publicly with events in which brief signers played a central role. Who knows what additional private conversations accompanied these appearances, or how many people attending such events whose organizations had signed amicus briefs posed for pictures with the justices?

Having just employed a glaring double standard, Take Back the Court faces two options if it wishes to retain an ounce of credibility. It can extend its recusal demands to Justices Ginsburg, Sotomayor, and Kagan in the above-referenced cases. Or it can take back its one-sided demand laughably confined to conservative justices.

Law & the Courts

This Day in Liberal Judicial Activism—November 11

Judge Stephen Reinhardt

2014What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

One other peculiarity: According to a letter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments.

Law & the Courts

This Day in Liberal Judicial Activism—November 10

(Blueenayim/Dreamstime)

1961—Phony cases make silly law. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced. They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut. (See This Day for June 7, 1965.)

1969—In the first federal court decision striking down an abortion law, federal district judge Gerhard Gesell dismisses the indictment of an abortionist, Milan Vuitch, on the ground that the District of Columbia’s abortion statute is unconstitutionally vague. In April 1971 (one day before it votes to hear Roe v. Wade and Doe v. Bolton), the Supreme Court will reverse Gesell’s ruling.

1992—Is orthodox Judaism the state religion of Georgia? A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause. Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display.  

2016—Oregon federal district judge Ann L. Aiken submits a strong entry for the most pervasively lunatic ruling ever. In Juliana v. United States, she denies the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate.

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