Law & the Courts

This Day in Liberal Judicial Activism—November 9

1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially identical to the provisions held to be constitutionally permissible in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey—continues for seven years, until the Seventh Circuit reverses his rulings.

In March 2009, President Obama makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2015—Longtime Wisconsin supreme court justice Shirley Abrahamson drops her appeal of a district-court ruling (by an Obama appointee, no less) that rejected her patently frivolous (and evidently perjured) lawsuit against the operation of a voter-adopted referendum that effectively displaced her as chief justice. So now everyone can agree that Abrahamson is not appealing.

Law & the Courts

Judicial Council’s Public Reprimand of District Judge Carlos Murguia

I somehow missed the news a month or so ago that the Judicial Council of the Tenth Circuit had used its “most severe sanction”—a public reprimand—against federal district judge Carlos Murguia of the District of Kansas for three types of judicial misconduct: “(1) sexually harassing Judiciary employees; (2) engaging in an extramarital sexual relationship with an individual who had been convicted of felonies in state court and was then on probation; and (3) demonstrating habitual tardiness for court engagements.” Murguia was appointed a federal judge by President Clinton in 1999. (He is the brother of Ninth Circuit judge Mary Murguia.)

On the first category of misconduct:

Judge Murguia gave preferential treatment and unwanted attention to female employees of the Judiciary in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night. All of the harassed employees stated that they were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge. One of the employees eventually told him explicitly to stop his harassing conduct, but he continued.

On the second:

Judge Murguia engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions. A judge’s sexual affair does not constitute misconduct in all cases; whether a judge’s affair, even with a convicted felon, is misconduct depends on the circumstances surrounding the relationship. But the Special Committee found, and the Council agrees, that Judge Murguia placed himself in such a compromised position that he made himself susceptible to extortion.

On the third:

Judge Murguia has been habitually late for court proceedings and meetings for years. The Special Committee found general agreement among witnesses that Judge Murguia was frequently late for court proceedings, often requiring attorneys, parties, and juries to wait, and sometimes making attorneys late for proceedings in other courtrooms. A repeated cause of this tardiness was Judge Murguia’s regularly scheduled lunchtime basketball games on days when he had hearings or trials, leaving the jury and others waiting for him to return. Judge Murguia was counseled about his tardiness fairly early in his federal judicial career, but his conduct persisted nonetheless.


Judge Murguia was less than candid with the Special Committee. When initially confronted with the allegations, he did not fully disclose the extent of his misconduct. He tended to admit to allegations only when confronted with supporting documentary evidence. His apologies appeared more tied to his regret that his actions were brought to light than an awareness of, and regret for, the harm he caused to the individuals involved and to the integrity of his office.

Law & the Courts

Thank You, Harry Reid!

In this week in which the White House has celebrated President Trump’s impressive record of achievement on judicial appointments, I’d like to pay tribute to the unsung hero who did more than anyone to make this all possible: former Senate Democrat leader Harry Reid.

Back in November 2013 when he was Senate majority leader, Reid pushed his fellow Democrats to abolish the filibuster (the 60-vote cloture threshold) for lower-court nominations. Never mind that Senate Republicans had defeated a grand total of seven cloture motions on President Obama’s nominees, while Reid himself had voted against cloture at least 25 times on 13 different nominees of George W. Bush.

As I explained back then, I welcomed the abolition of the judicial filibuster and its long-term consequences for the judicial-confirmation process. Above all, the abolition of the lower-court filibuster created the only promising scenario for real improvement in the courts: confirmation by a Senate Republican majority of the strong nominees of a Republican president. I further pointed out that Reid’s action paved the way for the abolition of the filibuster on Supreme Court nominees.

Imagine how very different things would have been if Reid hadn’t abolished the lower-court filibuster. It’s farfetched to think that Senate Republicans would have done so during Trump’s presidency. Recall that quite a few Senate Republicans were eager to restore the judicial filibuster after they regained control of the Senate in the 2014 elections. Recall further that back in 2005, when there were 55 Republican senators and when Republicans had for two years been unable to overcome the Democrats’ unprecedented campaign of filibusters, the Republican effort to abolish the filibuster failed. John McCain, Susan Collins, Lindsey Graham, and others instead struck the Gang of 14 deal. With the 51 senators in the Republican contingent in 2017-2018 and even with the 53 now, I don’t see how the votes would be there.

The abolition of the filibuster also meant that outstanding candidates, knowing that the process would likely be short and successful, would offer themselves up for nomination to the courts of appeals.

Without Reid’s action, I wonder whether President Trump would have a dozen federal appellate appointees by now, and the overall caliber of those nominees whom Democrats would allow to be confirmed would surely have been much lower.

More importantly, Reid’s action also made possible the Supreme Court confirmations of Neil Gorsuch and Brett Kavanaugh. By filibustering Gorsuch—a stellar candidate with strong support from liberals in the legal community—Senate Democrats signaled to senators like McCain that they wouldn’t let any judicial conservative get confirmed to the Supreme Court. They gave him and others no choice but to extend Reid’s action to Supreme Court nominations, and there is no way that they would have succeeded in doing so if Reid hadn’t already cleared the path. Perhaps Gorsuch would have been able to overcome the Democratic filibuster against him. But there is obviously no way that Kavanaugh would have been able to get 60 votes for cloture.

So, once again, a huge shout-out of thanks to Harry Reid!

Law & the Courts

District-Court Ruling Against HHS Conscience Rule

On Wednesday, federal district judge Paul A. Engelmayer (of the Southern District of New York) issued a 147-page opinion ordering that the Department of Health and Human Services’ May 2019 rule on “Protecting Statutory Conscience Rights in Health Care” be vacated in its entirety. I’m still wading through the opinion, but figured I would offer some preliminary comments.

I’ll begin with a high-level summary.

As HHS explains, its Conscience Rule “revises existing regulations to ensure vigorous enforcement of Federal conscience and anti‐discrimination laws applicable to the Department, its programs, and recipients of HHS funds.” Those laws (in Engelmayer’s words) “principally, although not exclusively, address objections to abortion, sterilization, and assisted suicide, in addition to counseling and referrals related to these services.”

Plaintiffs (including 19 states and abortion providers) argued that the Conscience Rule was issued in violation of the Administrative Procedure Act and is unconstitutional. Engelmayer devotes the bulk of his opinion (pp. 39-115) to the APA claims. He opines that HHS, in issuing the Conscience Rule, exceeded its statutory authority (pp. 39-69), acted contrary to law (pp. 69-78), was arbitrary and capricious (pp. 78-109), and adopted a definition of discrimination that “was not a logical outgrowth” of its notice of proposed rulemaking (pp. 109-115). On the constitutional claims, Engelmayer concludes that the provision in the Conscience Rule that authorizes HHS to withhold or terminate all of a recipient’s funding as a penalty for noncompliance with the Rule violates the separation of powers (pp. 115-117) and the Spending Clause (pp. 117-134).

With the caveat that I do not claim to be expert in the nitty gritty of administrative law, I find myself puzzled by much of Engelmayer’s opinion. A few examples:

1. In summarizing the statutory conscience protections, Engelmayer repeatedly emphasizes that various of the statutes do not define key terms (such as “discriminate”) and do not “expressly” grant rulemaking authority to HHS. (See, e.g., pp. 8, 12.) I would have thought that these facts together strongly suggest an implied delegation of rulemaking authority to HHS. How, after all, can HHS administer these statutes without defining those key terms? But Engelmayer adopts a very stingy view of implied delegation (pp. 60-64).

2. Engelmayer finds it especially troublesome that the Conscience Rule doesn’t follow the “reasonable accommodation/undue hardship framework” that applies to employers generally under Title VII of the Civil Rights Act of 1964. Indeed, his lead ground for concluding that the Conscience Rule is “contrary to law” is that it supposedly “conflicts with Title VII.” Set aside that four justices have recently questioned the soundness of that Title VII framework. How is there an actual conflict between the Conscience Rule and Title VII? Doesn’t an entity that complies with the former necessarily comply with the latter? And what reason is there to assume that Congress wouldn’t allow greater protections of conscience rights for employees of entities receiving federal funds and carrying out federal programs than Title VII provides?

3. Engelmayer’s everything-and-the-kitchen-sink approach might be seen by some as thoroughness, but his microscopic scrutiny of HHS does not strike me as the usual judicial approach to review of administrative action. And his mischaracterization of Roe v. Wade as having “invalidated prohibitions on abortion in the first trimester”—the sort of claim that some abortion advocates make to obscure the breadth of the Roe holding—makes me wonder how much he can be trusted in his citations of other authorities. (Somehow I think that if Engelmayer were reviewing a prohibition on abortion in the second trimester, he would recognize that Roe forbids that.)

4. Engelmayer’s “separation of powers” holding sounds momentous, but it turns out to be nothing more than a recasting of his APA holding. In his view, any agency action that exceeds the agency’s authority also “is inconsistent with the separation of powers.”

Law & the Courts

Ninth Circuit Dissent: Don’t Gut the Ministerial Exception

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

In two recent cases, the Ninth Circuit delivered a blow to the “ministerial exception” enjoyed by religious institutions under the First Amendment and recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012). That case involved a teacher at a Lutheran school whose duties included teaching religion class and leading her students in prayer, and who challenged her dismissal by the church under the Americans with Disabilities Act (ADA). The Court unanimously rejected her claim, holding that the ministerial exception precludes the application of employment discrimination laws to questions involving “the employment relationship between a religious institution and its ministers.” Additionally, the government is not permitted to “contradict a church’s determination of who can act as its ministers.”

Two very similar cases in the Ninth Circuit involving teachers who sued Catholic schools after their contracts were not renewed reached the opposite outcome. Both Biel v. St. James School and Morrissey-Berru v. Our Lady of Guadalupe School involved fifth-grade teachers at Catholic elementary schools whose responsibilities included teaching religious instruction, leading their students in daily prayer, and whose employment contracts required them to incorporate Catholic teachings into their work. Biel, who sued under the ADA, was required to teach religion at least 200 minutes per week and to escort her students to school-wide monthly Mass. Morrissey-Berru, who sued under the Age Discrimination in Employment Act, taught a course on the history of the Catholic Church, was in charge of liturgy planning for a monthly Mass, and directed and produced a student performance during the school’s annual Easter celebration.

Two panels of the Ninth Circuit reversed district court opinions granting the schools summary judgment in the respective cases, concluding that under the “totality of the circumstances,” the teachers did not qualify for the ministerial exception. The Ninth Circuit denied a petition for an en banc rehearing in Biel, and nine judges dissented in an opinion written by Judge Ryan Nelson.

The court, Nelson observed, did not hold Biel to be a “minister” because her employment circumstances “were not a carbon copy of the plaintiff’s circumstances” in Hosanna-Tabor, a conclusion that clearly “departed from the plain direction of the Supreme Court.” Consider the similarity of the job of the teacher in the Supreme Court case: she had taught a variety of classes to kindergarten and fourth grade students, including religion class four days a week; led the students in daily prayer and devotional exercises; and attended a weekly school-wide chapel service, which she led herself about twice a year. She did have a distinctive formal title —“ called teacher” — that was lacking in the Catholic school context.

Justice Alito had noted in his Hosanna-Tabor concurrence, which was joined by Justice Kagan, the importance of function over nomenclature: The term “minister,” commonly used in Protestant denominations, “is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.” But the Ninth Circuit did not seem to grasp this, treating Hosanna-Tabor as if it set a legal floor for the exception to apply, which it did not. The appeals court “diverged from the function-focused approach” taken by other circuits and a number of state supreme courts and focused on other considerations, Nelson charged, “all of which relate to Biel’s title.”

The dissent extended its rebuke of the Ninth Circuit to Morrissey-Berru, which presented an “even stronger” case to apply the ministerial exception. “Now thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally,” Nelson lamented. The court would have done better to follow Alito’s explicit extension of the ministerial exception “to 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.”

Nelson had been nominated to the Ninth Circuit by President Trump, as had Judges Mark Bennett, Bridget Bade, and Daniel Collins, who joined his dissent along with five judges who had been appointed by George W. Bush. The Becket Fund, which represents the Catholic schools in both cases, has filed a cert petition to the Supreme Court.

Law & the Courts

Seventh Circuit Judges on Pre-Enforcement Injunctions Against Abortion Laws

A law enacted in Indiana in 2017 provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.” In August, a divided panel of the Seventh Circuit affirmed a preliminary injunction that prevented that provision from ever taking effect. In dissent, Judge Kanne objected that because the law was enjoined before it had ever been enforced, there was no evidence that it would operate as an undue burden.

Last week, by a vote of 6 to 5, the Seventh Circuit declined to rehear the case en banc. In his brief dissent (joined by Judges Flaum, Barrett, Brennan, and Scudder), Judge Kanne stated:

This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect? Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.

Judge Easterbrook, joined by Judge Sykes, concurred in the denial of rehearing en banc (and either of them can therefore be regarded as providing the decisive vote against rehearing).* Essentially endorsing Kanne’s panel dissent, Easterbrook argued that pre-enforcement injunctions should be strongly disfavored:

Unless a baleful outcome is either highly likely or ruinous even if less likely, a federal court should allow a state law (on the subject of abortion or anything else) to go into force; otherwise the prediction cannot be evaluated properly. And principles of federalism should allow the states that much leeway. Talk of the states as laboratories is hollow if federal courts enjoin experiments before the results are in.

At the same time, Easterbrook explained why he opposed en banc rehearing. One big part of Easterbrook’s argument is that the “undue burden” standard set forth in Planned Parenthood v. Casey has no meaningful content: it “does not call on a court of appeals to interpret a text … [n]or does it produce a result through interpretation of the Supreme Court’s opinions”:

Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute, such as the one Indiana has enacted. Three circuit judges already have guessed how that inquiry would come out; they did not agree. The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.

Alas, Easterbrook’s vote to deny en banc rehearing makes it much less likely that the Supreme Court will decide to address “this dispute” (though, as he points out, it is possible that the Court’s ruling in the pending case of June Medical Services v. Gee will provide guidance on when pre-enforcement injunctive relief is proper). I wish very much that he had instead voted to grant en banc rehearing and had ultimately set forth his presumption against pre-enforcement relief, and his criticism of the undue-burden standard, in an en banc majority opinion that vacated the preliminary injunction against the Indiana law.

* One Trump appointee, Judge St. Eve, was also part of the majority denying en banc review.

Law & the Courts

This Day in Liberal Judicial Activism—November 7

(Photo Illustration: NRO)

2000—So much for respecting a capital inmate’s final wishes.

Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief. But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.” Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.

Law & the Courts

Michigan’s Feeble ‘Emergency’ Motion to Stay Preliminary Injunction

On September 26, federal judge Robert J. Jonker entered a preliminary injunction that enables St. Vincent Catholic Charities to continue providing foster and adoptive services to children in Michigan’s child-welfare system. Jonker’s opinion explains that the Michigan legislature enacted legislation in 2015 that allows St. Vincent to decline to decide whether to endorse an unmarried or same-sex couple as foster or adoptive parents and instead to refer such cases to other agencies for decision. But after running an election campaign in which she attacked the 2015 law and condemned St. Vincent as “hate mongers,” new Michigan attorney general Dana Nessel “put St. Vincent in the position of either giving up its belief [about marriage] or giving up its contract with the State.” Jonker concluded that Nessel’s position amounted to “religious targeting” of St. Vincent and could not survive strict scrutiny.

The state of Michigan waited a full two weeks before asking Jonker to stay his injunction pending appeal. And one week after Jonker denied its request, it filed an “emergency motion” with the Sixth Circuit asking it to stay Jonker’s injunction pending appeal.

It would be very strange if the Sixth Circuit were to grant Michigan’s motion.

The fact that Michigan waited two weeks to ask Jonker for a stay belies the notion that it faces any genuine emergency. And nothing in its motion meaningfully suggests otherwise.

The preliminary injunction enables St. Vincent to continue providing the services that it has provided for years, and it preserves (in Jonker’s words) “a carefully balanced and established practice that ensures non-discrimination in child placements while still accommodating traditional Catholic religious beliefs on marriage.” As the Becket Fund argues on behalf of St. Vincent, it is St. Vincent, and “the families and children who rely on St. Vincent,” that would face irreparable harm if the injunction were blocked.

Thus, even without getting to the underlying merits (which I believe also strongly favor the injunction), the Sixth Circuit has compelling reasons to deny Michigan’s motion.

Law & the Courts

‘Antonin Scalia and James Wilson: on Faith, on Justice, on Judging’

That’s the title of an event that I’ll be taking part in tomorrow (Thursday) evening in D.C., sponsored by the James Wilson Institute. Professor Mark Hall will discuss the role that the Christian faith of Founding Father, and early Supreme Court justice, James Wilson played in his conception of justice and judging. I’ll do likewise for Justice Scalia.

Copies of Scalia’s On Faith: Lessons from an American Believer, which I co-edited with Christopher J. Scalia, will be available for purchase (and, for anyone who wishes, signing by yours truly).

Law & the Courts

On C-SPAN on Trump’s Judicial Appointments

I had the pleasure of appearing on C-SPAN’s Washington Journal for 45 minutes this morning to discuss President Trump’s record of judicial appointments. Thanks to host Bill Scanlan for the opportunity.

Law & the Courts

This Day in Liberal Judicial Activism—November 6

Judge William Pryor Jr. (Photo: Wikimedia)

2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit. Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it.

In February 2004, President Bush recess-appoints Pryor to the seat. And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat.

2017—In a unanimous ruling in Kernan v. Cuero, the Supreme Court summarily reverses a ruling by Ninth Circuit judge Kim McLane Wardlaw that granted habeas relief to a state prisoner. Employing understatement, the Court observes, “There are several problems with the Ninth Circuit’s reasoning below.”

Summary reversals—that is, reversals without the Court’s seeing any need for briefing on the merits or oral argument—generally reflect very poorly on the judge who authored the opinion below. But Wardlaw seems to be competing for a Lifetime Summary Reversal Award, as this is at least the fourth time she has had a ruling unanimously summarily reversed by the Court.

Law & the Courts

Here’s the Tale of the Judicial Confirmation Tape

U.S. Capitol in Washington, D.C., 2019 (Joshua Roberts/Reuters)

Today the Senate takes up the next group of judicial nominations, including two each to the U.S. Court of Appeals and U.S. District Court. Here’s the tale of the confirmation tape when they are confirmed.

“Takes up,” of course, means first jumping through the cloture hoop. Democrats have forced the Senate to take a separate vote to end debate before deciding on final confirmation for 118 of the 161 nominees confirmed so far. By comparison, the Senate had taken four cloture votes on confirmed judicial nominees at this point — for all previous presidents combined.

And remember, Trump is the first president elected since November 2013, when Democrats used a parliamentary gimmick to abolish nomination filibusters. Since then, these time-consuming cloture votes can be used to delay, but not to defeat, nominations.

With these confirmations, Trump’s judicial appointment total will be 161, or 18.7 percent of the life-tenured federal judiciary. The previous five presidents appointed an average of 16.7 percent at this point. Trump’s percentage is higher than Obama, Bush 41, and Reagan and below Bush 43 and Clinton.

Trump is making these strides against the strongest confirmation headwinds any president has ever faced. At this point under the previous five presidents, for example, only 5.5 percent of their appointed judges had received even a single vote against confirmation. That figure is 70.8 percent during the current administration.

Let’s assume that the four nominees this week will be confirmed with the average number of negative votes that Trump’s nominees have received this year. Trump’s judges will have received, on average, 18 TIMES the opposition as the judges appointed by his five predecessors at this point.

In fact, it took the Senate more than 225 years to rack up as many negative confirmation votes as Trump’s judicial nominees have received in less than three years.

Some claim that opposition to Trump’s judicial nominees simply reflects their qualifications. For those who still put any stock in the American Bar Association’s ratings, 65 percent of Trump nominees have received a “well qualified” rating, within less than three percentage points of his predecessors during their first terms. That’s a distinction without a difference. And, bear in mind that four academic studies (here, here, here, and here) have found systematic ratings bias by the ABA against Republican judicial nominees. So take that for what it’s worth.

The suggestion that higher opposition reflects lower quality is bogus for another reason. The only thing Democrats care about is the president who made the nominations. Trump’s “well qualified” nominees receive as much, or more, opposition as any others. It’s almost as if the qualifications of Trump nominees really don’t matter at all.

For the first time in three years, judicial vacancies are finally out of triple digits. This is in spite of, rather than because of, Senate Democrats who have weaponized the confirmation process to fight the president rather than fulfill their constitutional responsibility.

Law & the Courts

This Day in Liberal Judicial Activism—November 5

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

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

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

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

Law & the Courts

Judicial-Nominations Update

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

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

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

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

 Current and known future vacancies: 122

Courts of Appeals:  9

District/Specialty Courts*: 113

Pending nominees for current and known future vacancies:  55

Courts of Appeals: 8

District/Specialty Courts*:  47

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination


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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Halil Suleyman “Sul” Ozerden (5th) 6/24/19 133 7/17/19
Steven Menashi (2nd) 9/9/19 56 9/11/19
Barbara Lagoa (11th) 10/15/19


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


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

 Court of Appeals Nominees Awaiting Senate Floor Votes

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

 Nominees Awaiting Floor Votes: 26

Courts of Appeals: 2

District/Specialty Courts*: 28

Days Pending

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

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

Supreme Court: 0

Courts of Appeals: 13

District/Specialty Courts*: 61

Nominees Confirmed by the Senate since Inauguration Day: 159

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts*: 114

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

Law & the Courts

Re: Judge Barron’s Barren Reasoning

A follow-up to this post from last Thursday:

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

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

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

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

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

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

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

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In early October, Elizabeth Warren hit her stride. Her stock in the Democratic primary had been climbing steadily since midsummer, and as Joe Biden continued to lag, the Massachusetts senator became the first presidential hopeful to overtake him as front-runner in the RealClearPolitics polling average. She’s ... Read More

Clint Eastwood’s Messy, Nuanced Triumph

After a pipe bomb exploded at a concert held to celebrate the 1996 Olympics in Atlanta’s Centennial Park, the FBI came to suspect that the security guard who discovered the device might have planted it to gain a reputation as a hero. The knotty story of that security guard, Richard Jewell, does not lend itself ... Read More

Clint Eastwood’s Messy, Nuanced Triumph

After a pipe bomb exploded at a concert held to celebrate the 1996 Olympics in Atlanta’s Centennial Park, the FBI came to suspect that the security guard who discovered the device might have planted it to gain a reputation as a hero. The knotty story of that security guard, Richard Jewell, does not lend itself ... Read More

A Feeble Fox News Attack at the Movies

Don’t hold your breath waiting for Oscar-winning talents to rip the lid off the scandal at NBC News, whose bosses still have suffered no repercussions for their part in the Harvey Weinstein matter and other sleazy deeds — but at least Hollywood has finally let us know how they feel about Fox News ... Read More

A Feeble Fox News Attack at the Movies

Don’t hold your breath waiting for Oscar-winning talents to rip the lid off the scandal at NBC News, whose bosses still have suffered no repercussions for their part in the Harvey Weinstein matter and other sleazy deeds — but at least Hollywood has finally let us know how they feel about Fox News ... Read More