Law & the Courts

Democrats Continue to Obstruct Trump’s Judicial Nominations

President Donald Trump clasps his hands in the Oval Office in Washington, D.C., December 25, 2018. (James Lawler Duggan/REUTERS )

Breaking records is not always a good thing. When the 115th Congress adjourns, 69 nominations to the federal district and appeals court will expire and be returned to President Trump. That will break the record of 54 set in 1992, at the end of the 102nd Congress.

These numbers, however, do not tell the whole story. Democrats controlled the Senate in 1992. Putting a Republican president’s nominees on ice required nothing more than Judiciary Committee Chairman Joe Biden, D-Del., refusing to hold hearings. In fact, as the New York Times reported shortly before the 1992 election that Democrats did just that “to preserve the vacancies for Gov. Bill Clinton to fill if he is elected President.”

Although this is not a presidential election year and they are not the majority party, Democrats have still been able to prevent a record number of judicial nominations from being confirmed. This is especially serious since more judicial positions are vacant today than at the end of any previous two-year congress. We are in the longest period of triple-digit vacancies in more than 25 years.

Here’s one of the Democrats’ more subtle tactics. The Senate must end debate, or invoke cloture, on a nomination before it can vote on confirmation. If senators will not cooperate to end debate informally, Senate Rule 22 provides for a time-consuming roll-call vote for cloture, followed by as much as 30 hours of debate.

In the past, very little of that post-cloture debate time was used since the final outcome was obvious. Over the five decades before Trump took office, confirmation followed cloture by only a few hours nearly 50 percent of the time. Even during the Obama administration, when the process was said to be so difficult, cloture and confirmation occurred on the same day about 45 percent of the time.

That outcome has dropped to 27 percent under Trump. And this is just one obstruction tactic Senate Democrats have deployed to make the confirmation process as cumbersome as possible.

Because of these tactics, more than half of the current judicial vacancies have gone unfilled for so long that the Judicial Conference, the policy-making body of the federal judiciary, has designated these open seats as “judicial emergencies.” These positions have been open an average of 894 days, and the judges on those courts have an average caseload of more than 500 cases apiece.

Democrats and their left-wing allies are no doubt proud of this achievement, which is significantly more serious than what Democrats condemned just a few years ago. But obstruction-for-partisan-sport is not a good thing.

Law & the Courts

This Day in Liberal Judicial Activism—December 25


1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.

Law & the Courts

This Day in Liberal Judicial Activism—December 23


1996—In Coalition for Economic Equity v. Wilson, federal district judge Thelton Henderson issues a preliminary injunction barring California officials “from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.”

Adopted by California voters in the November 1996 election, Proposition 209 provides that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Among other things, Henderson rules that the challengers to Proposition 209 “have demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment’s equal protection guarantee to full participation in the political life of the community.”

But, as a unanimous Ninth Circuit panel (in an opinion by Judge Diarmuid O’Scannlain) will observe months later in reversing Henderson:

“A denial of equal protection entails, at a minimum, a classification that treats individuals unequally.… Impediments to preferential treatment do not deny equal protection.… That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.”

Law & the Courts

Left-Wing Groups Are Telling Democrats to Slow the Judicial-Confirmation Process

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

When it comes to confirming President Trump’s judicial nominees, left-wing groups say “Jump” and Senate Democrats ask “How high?” The groups have told Democrats to slow down the judicial-confirmation process and they are doing what they are told.

The slow slog to confirmation begins as soon as a nomination makes it out of the Judiciary Committee. Democrats have found several ways to make the confirmation process more cumbersome and time-consuming than ever.

First, Democrats have forced the Senate to take a separate vote to invoke cloture, or end debate, on 48 judicial nominees. That’s nearly ten times more than during the first two years of the previous nine newly elected presidents combined.

Second, Democrats have forced the Senate to take a formal roll-call vote to confirm a higher percentage of judicial nominees from Trump than from any new president in history. What difference does it make? Rather than confirm nominees by a voice vote that takes about 30 seconds and does not require the presence of senators, the Senate must use a roll-call vote that takes about 35 minutes and requires that all senators show up.

Third, Democrats have opposed Trump’s judicial nominees far more than any president in history. In fact, 46 Trump nominees received negative confirmation votes, compared to 45 nominees during the first two years of the previous 23 newly elected presidents combined. That’s going back to before Abraham Lincoln.

Or look at this wave of opposition in a different way. Trump’s 85 judges received more total negative votes for confirmation than all 2,653 judges confirmed during the entire 20th century combined.

Which brings us to the latest category of unprecedented obstruction. Senate Rule 31 requires that nominations that are neither confirmed nor rejected during the two-year Congress in which they are made expire and must be returned to the president. Traditionally, the minority party agrees to confirm at least some of these pending nominations in the final days before adjournment. Today, however, the groups have told Democrats to oppose any such confirmation package and, of course, Democrats have complied.

Let’s compare 2014, the last mid-term election year, when the partisan roles were reversed. Democrats controlled the White House and Senate, Republicans were in the minority. By the last two weeks of the 113th Congress, the Senate had confirmed 115 of President Obama’s judicial nominees, and judicial vacancies were down to about 65. Yet in those last two weeks, the Senate found time to confirm 17 more judges — 15 of them without a roll call vote.

Today, in the closing days of the 115th Congress, the Senate has confirmed 85 Trump nominees, and vacancies top 130. Yet, as one news report put it, Democrats will not agree to “a customary year-end package of judicial nominees” because of “pressure from left wing groups.” How noble.

This is what a fit of partisan spite looks like. Even though confirmations are down and vacancies are up, Democrats would rather keep the judiciary understaffed and overworked than cooperate with Republicans.

Law & the Courts

Year-End Invitation

Please indulge my once-a-year pitch:

If you enjoy my posts here on Bench Memos and appreciate the impact that I’ve had over the years on the broader debate on constitutional issues and judicial confirmations, then I invite you to support the Ethics and Public Policy Center (in addition to supporting National Review). It’s my full-time position as president of EPPC that pays my salary and enables me to carry out my work, both here and elsewhere. Plus, I have a great team of colleagues at EPPC, including frequent NRO contributors George Weigel, Mona Charen, Yuval Levin, Henry Olsen, and Stanley Kurtz.

Law & the Courts

Judicial Nominations Stalled on Senate Floor

Two months ago, there was good reason to hope that the Senate would confirm as many as 57 judges this November and December. But so far, there has been only a single confirmation in that period—Jonathan Kobes to the Eighth Circuit.

One big part of the problem has been Senator Flake’s refusal to vote for any nominee in committee or on the floor unless the Senate voted on his proposal to protect special counsel Robert Mueller. Flake’s unsuccessful gambit meant that twenty-five nominees (six appellate and nineteen district) didn’t get reported out of committee, and it, along with Senator Scott’s unjustified reversal, also prevented the confirmation of federal district nominee Thomas Farr.

Another big part of the problem is that some thirty other district-court nominations seem stuck in limbo on the Senate floor. About half of these nominations arrived on the Senate floor between January and July of this year, with the other half all arriving by October 11. Few if any of these nominations present any controversy. Indeed, the seven for New York were part of a package deal with Senator Schumer and include a mix of liberals and conservatives. But the onerous cloture rules (e.g., 30 hours of post-cloture debate) make obstruction easy. So majority leader McConnell’s real leverage comes only at the end of the session, when he can threaten to keep senators in Washington when they would prefer to go home.

If these thirty pending district-court nominations are not confirmed in the coming days, look for Senate Democrats to require the return of the nominations to the president, thus imposing yet further delay as renominations and a second set of committee votes reporting the nominations to the Senate floor would be required in the New Year.

Law & the Courts

This Day in Liberal Judicial Activism—December 19

(Chip East/Reuters)

2002—On remand from a U.S. Supreme Court decision holding that Erie’s ban on public nudity does not violate the First Amendment, the Pennsylvania supreme court rules (in Pap’s A.M. v. City of Erie) that the ban’s targeting of nude dancing violates the state constitution’s guarantee of freedom of expression (which provides that “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty”).

2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to restore the state’s definition of marriage as a male-female union.

Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the supreme court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California: one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

2013—The five justices of the New Mexico supreme court unanimously rule (in Griego v. Oliver) that the New Mexico constitution requires that “same-gender couples” be allowed to marry.

2017—By a 5-4 vote, the Oklahoma supreme court holds (in Hunsucker v. Fallin) that attorneys specializing in DUI cases have “public interest standing” to challenge the state’s recently enacted Impaired Driving Elimination Act; that the Act violates the state constitution’s single-subject rule; and that one provision of the Act that authorizes the seizure and immediate destruction of the driver’s license of a driver who fails a breath test (along with simultaneous issuance of a temporary license) violates substantive due process.

In dissent, Justice Patrick Wyrick objects that the majority’s “boundless” exception to the court’s ordinary standing rules fails to meet the state constitutional standard for justiciability. Further, its permissive standing rules combine with its amorphous and malleable single-subject decisions to create “a potent one-two punch that allows the Court to judicially veto virtually any of the Legislature’s and People’s laws so long as someone files the proper papers in the clerk’s office to initiate suit.”

The majority’s substantive due process holding is also wrong, Wyrick explains, “both as a matter of process and as a matter of substance”: among other things, the majority rules on a claim that no one even argued; it contradicts its own previous ruling; it reinstates a prior scheme that has the same supposedly defective feature; and, while purporting to exercise rational-basis review, it fails to conceive of, much less address, legitimate reasons for the challenged provision.

Law & the Courts

This Day in Liberal Judicial Activism—December 18


1997Best is worst. Best v. Taylor Machine Works, that is.

In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation.

In twisted confusion over which branch has the authority to make law, the court also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.” Under the “special” legislation pretense, it further strikes down the act’s abolition of the common-law doctrine of joint and several liability. And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”

Law & the Courts

This Day in Liberal Judicial Activism—December 15

(Yong Hian Lim/Dreamstime)

2015—In the face of uniform rulings of the federal courts of appeals holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, California federal district judge Dean D. Pregerson rules that Title IX’s bar on sex discrimination by schools receiving federal funds is a bar on sexual-orientation discrimination.

Pregerson doesn’t suggest that there is any reason to read Title IX differently from Title VII on this point. On the contrary, he invokes Ninth Circuit precedent holding that the legislative history of Title IX “strongly suggests that Congress meant for similar substantive standards” to apply under the two statutes, and he affirmatively relies on the EEOC’s recent Title VII ruling that contradicts the uniform federal appellate rulings.

Law & the Courts

This Day in Liberal Judicial Activism—December 14

(Lucas Jackson/Reuters)

2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth: The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.” Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations. The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

Law & the Courts

The Most Wonderful Time of the Year — for Religious Legal Disputes

A Christmas nativity scene outside a home in the Sleepy Hollow area of Torrance, Calif., December 15, 2015. (Lucy Nicholson/Reuters )

The holiday season has arrived, and along with it comes a cherished annual tradition — legal disputes over religious displays on public property. This year, a New Hampshire town’s refusal to allow a menorah display in a public park gained the most publicity. Similar conflicts arose in other states, including New York and Illinois. These annual fights could be avoided if governmental entities understood the relevant law.

Government representatives often claim that they can allow secular displays while banning religious displays as long as the ban applies to all faiths. This view is incorrect. If a government creates a forum in which some members of the public are allowed to speak, the freedom of speech protected by the First Amendment requires governmental entities to treat religious and secular speakers equally.

In the New Hampshire case, the town allows citizens to utilize a public park for private purposes. However, the town denied a rabbi’s request to participate in that program by displaying a menorah in Memorial Park.  The town administrator explained that one of the reasons for denying the rabbi’s application was that, “the town does not allow the display of any overtly religious symbols on town property.” Various members of the town’s Human Rights Commission indicated that they could justify refusing the rabbi if they applied their ban to all religious displays.

This argument boils down to a claim that a government entity may discriminatorily censor Jewish speech so long as it also discriminates against other religious groups. Fortunately, this position is not legally sound. Prohibiting all religious symbols while continuing to allow secular displays does not alleviate the town’s problem. It exacerbates the constitutional violation by adding more religions to the list of groups whom the town muzzles.

The town’s confusion seems to stem from conflating the First Amendment’s prohibition on the establishment of religion with its protection of the freedom of speech. The town needs to satisfy both provisions, and it cannot satisfy the Free Speech Clause no matter how evenhandedly it silences religious speakers.

Government entities may be correct in their claim that, under the Establishment Clause, if they allow one religious message, they cannot discriminate against other religious messages. However, in response to that problem, the government cannot discriminate against all religious speakers in favor of secular ones. The answer to the problem of discrimination is not more discrimination. Religious speakers, no less than secular speakers, have a First Amendment right to express themselves in public forums.

In Good News Club v. Milford Central School, the Supreme Court held that a public school violated the First Amendment’s free speech clause by opening its facilities to secular speakers and banning religious speakers. The school had adopted a policy allowing after-school events aimed at “instruction in any branch of education, learning, or the arts” as well as any uses “pertaining to the welfare of the community.” However, the school excluded religious groups from participation.

The Supreme Court concluded that the school had created a “limited public forum.” In such a forum, the school could limit speakers to its chosen subject matter, but it could not discriminate based on the speaker’s viewpoints. Without violating the Constitution, the school could limit speakers to discussing “education, learning, or the arts” and exclude groups discussing unrelated topics. But the school could not require speakers to espouse its preferred positions on the permissible subject matters. This includes favoring secular positions over religious ones.

According to the Supreme Court excluding speakers based on their religious message was an example of impressible viewpoint discrimination. The religious group intended to discuss permissible subject matter — they simply wanted to speak from a religious perspective.

The school had maintained that religious viewpoints were qualitatively different than secular ones and could therefore be excluded. The Supreme Court rejected the notion that a speaker’s religious motivation “taints” his speech or makes it less “pure.” The First Amendment did not allow the school to ban religious groups from participating in the program simply because the school preferred secular messages.

Lower courts have applied similar reasoning to menorah displays on government property. In Grossbaum v. Indianapolis-Marion County Building Authority, the Seventh Circuit Court of Appeals held that the Indianapolis-Marion County Building Authority had violated a rabbi’s free speech rights by refusing to allow him to place a menorah in a government building. The government allowed seasonable displays but prohibited religious displays. The court concluded that “the prohibition of the menorah’s message because of its religious perspective was unconstitutional under the First Amendment’s Free Speech Clause.”

The same reasoning applies in the New Hampshire menorah case as well as all of the other cases that arise each year. Allowing citizens to use public property to promote secular messages while excluding religious speakers raises serious concerns under the First Amendment’s Free Speech clause. Religious speakers may not be relegated to second-class status because of their faith.

There may be other relevant legal issues in this case. The Supreme Court’s Establishment Clause jurisprudence is a mess, and hopefully the Court will fix that problem this term. The town claims that it has public safety concerns regarding vandals attacking the menorah. Maybe that claim has merit and maybe it does not. But it is important to separate that analysis from the distinct question of whether a town may categorically ban all religious speakers in favor of secular speakers. It may not.

Governmental claims that they can prohibit the display of menorahs on public property as long as they also prohibit the display of Christmas trees or other Christian symbols are one holiday tradition that Americans ought to retire once and for all.

Law & the Courts

This Day in Liberal Judicial Activism—December 12

President Obama nominating law professor Cornelia Pillard to D.C. Circuit. ( Mark Wilson/Getty Images)

2013—Some things are most fittingly done in the dark of night. Shortly after midnight, the Senate, with 51 yea votes, confirms President Obama’s nomination of hard-left law professor Cornelia Pillard to the D.C. Circuit.

The confirmation of Pillard follows in the wake of Senate Democrats’ abolition of the judicial filibuster. Even three Senate Democrats vote against the Pillard nomination, and not a single Republican votes for it.

During her confirmation process, Pillard was described by some lawyers who know her well as “Reinhardt in a skirt but less moderate” (that’s a reference to Ninth Circuit arch-activist Stephen Reinhardt) and as someone who threatens to be “the most left-wing judge in the history of the Republic.”

Justice Thomas to Justices Roberts and Kavanaugh: We’re Here to Do a Job

The Supreme Court has denied certiorari in Gee v. Planned Parenthood of Gulf Coast, and three justices have dissented from the denial in an opinion issued today by Justice Clarence Thomas. Justices Samuel Alito and Neil Gorsuch joined his dissent, and because four votes are required to grant certiorari, that means both Chief Justice John Roberts and Justice Brett Kavanaugh voted along with the Court’s liberal bloc not to take the case.

Although Planned Parenthood is a party, this case does not directly involve abortion. The question presented is one that has arisen, and will continue to arise, in numerous federal cases: whether Medicaid patients can bring an action to challenge a state’s determination as to who constitutes a “qualified” Medicaid provider under federal law.

Then again, this issue does indirectly involve abortion. It is being litigated because several states cut off the nation’s largest abortion provider as a state Medicaid provider after finding that Planned Parenthood affiliates had engaged in “the illegal sale of fetal organs” and “fraudulent billing practices.”

What is mystifying about the Court’s refusal to take the case are the two factors that most consistently persuade the justices to take an appeal: there is a stark split among the circuits on the question, and as Thomas put it, “This question is important and recurring.” It is difficult to imagine any of the other justices disagreeing on those points. The approximately 70 million Medicaid patients in the United States are affected by a state’s decision to remove their health care providers, and patients in different states have different rights to challenge such decisions.

Thomas also noted why the states need the Court to resolve the issue:

Under the current majority rule, a State faces the threat of a federal lawsuit—and its attendant costs and fees—whenever it changes providers of medical products or services for its Medicaid recipients. . . . Not only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest. State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers. . . . Moreover, allowing patients to bring these claims directly in federal court reduces the ability of States to manage Medicaid, as the suits give Medicaid providers “an end run around the administrative exhaustion requirements in [the] state’s statutory scheme.” [citations omitted]

To top things off, the failure to decide this issue has implications for clarifying the standard to determine when someone could sue under § 1983, which provides for the enforcement of rights established under federal law. On that subject, Thomas asserted bluntly, “this Court made a mess of the issue. We have acknowledged as much . . . .”

Neither did Thomas flinch from identifying why the Court was punting on this appeal: “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’” It did not matter that the case was “not about abortion rights,” or that Planned Parenthood’s ability to sue was not involved—only that of individual patients. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background.”

But that appears to have been precisely what kept the Court from doing its job in this case, and it is unfortunate that neither Roberts nor Kavanaugh could bring themselves to make what in any other context would have been a slam dunk to grant certiorari.

Law & the Courts

This Day in Liberal Judicial Activism—December 9

1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing marijuana plants) since he should reasonably have foreseen that the yard could be viewed over the fence or from aircraft. In dissent, then-chief justice Rosemary Barkett confuses the threshold issue whether a reasonable expectation of privacy existed with the logically subsequent question whether a police search based on an anonymous tip was reasonable.

Law & the Courts

This Day in Liberal Judicial Activism—December 8


1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude.

In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.”

Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing. The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.” Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.” Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

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