2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other … and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunk rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex.
1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”
The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.
2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.”
In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding.
Reinhardt will remain in active status on the Ninth Circuit until his death in March 2018.
2017—The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder.
The crystalline clarity of this provision somehow doesn’t stop federal district judge Joseph H. Leeson, Jr. In Blatt v. Cabela’s Retail, Inc., Leeson denies an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition.
Among Leeson’s somersaults of reasoning: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”
What?!? We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders?
Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability?
1. For reasons I explained more fully in my Senate Judiciary Committee testimony in 2005, I believe that the case for overruling Roe v. Wade and Planned Parenthood v. Casey is overwhelming. Here is an excerpt:
Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.
See part 2 of that testimony for some devastating criticisms of Roe from liberals who support a right to abortion.
2. The wave of protective pro-life legislation demonstrates that Planned Parenthood v. Casey’s effort to preserve Roe has failed. As Harvard law professor Adrian Vermeule succinctly explained in a tweet the other day (my underlining):
The premise of Planned Parenthood v. Casey was that the Court’s abortion jurisprudence could succeed in “call[ing] the contending sides of a national controversy to end their national division.” Doesn’t seem to have worked. Casey fails its own test.
3. We often hear from the Left pleas for “judicial statesmanship” to preserve liberal precedents. But real judicial statesmanship would be for the liberals on the Court to recognize that Roe is a dismal failure and to forge a unanimous ruling against it.
4. All the clamor over the Alabama and Georgia laws ignores that there are certiorari petitions pending before the Court right now that provide the opportunity to erode or overrule Roe.
One petition (which the Court has been sitting on for months now) presents the questions (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus.
Another presents the question whether a state may require an ultrasound at least eighteen hours before an abortion.
And yet another challenges a Fifth Circuit decision that upheld a Louisiana law that requires physicians who perform abortions to have admitting privileges at a local hospital. This is the law that the liberal justices, together with the Chief, blocked from taking effect, so it’s a safe bet that certiorari will be granted in the case.
5. Any justices who recognize that Roe should be overruled but who are waiting for just the right occasion to do so are fooling themselves. There will never be a perfect time, and stretching things out unnecessarily just means that the Court will be a fat political target. That doesn’t mean that the Court necessarily needs to overrule Roe at the first opportunity, but it shouldn’t shy from the challenge.
1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”
1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”
Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.
2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.
Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.
Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition.
Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple:
“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.”
Yesterday the Senate confirmed President Trump’s nomination of Kenneth Kiyul Lee to the Ninth Circuit. The vote was 52-45, entirely along partisan lines.
One added delight in Lee’s confirmation is that Lee will be filling the seat held for decades (from 1979 until last year) by arch-activist Stephen Reinhardt.
Up soon for a floor vote—next week, I hope—should be Ninth Circuit nominee Daniel P. Collins. [Update (3 p.m.): Cloture has been filed on the Collins nomination, so it should be voted on next week.] Collins would fill the seat long held by Harry Pregerson, the Ninth Circuit judge with the strongest claim to rival Reinhardt in lawless willfulness.
The appointments of Lee and Collins would give the Ninth Circuit 11 Republican appointees versus 16 Democratic appointees, with two remaining vacancies. At the start of the Trump administration, the Ninth Circuit had 19 Democratic appointees, only 6 Republican appointees, and four vacancies.
Daniel Bress has already been nominated to one of the vacancies (Alex Kozinski’s former seat). I hope that he receives his committee hearing very soon. [Update (3:20 p.m.): The hearing on the Bress nomination will take place next Wednesday.]
The other opening is for the putative Oregon seat vacated by the excellent Diarmuid O’Scannlain. A smear campaign somehow defeated Ryan Bounds’s nomination to this seat. I understand that Bounds will not be renominated.
If and when these vacancies are filled, the Ninth Circuit will have 13 Republican appointees to go with its 16 Democratic appointees.
Eight of the 16 Democratic appointees are eligible to take senior status, and a ninth soon will be, but there is no particular reason to expect any of them to elect that option.
2011—In United States v. C.R., senior federal district judge Jack B. Weinstein issues a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibits applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaces his discussion of the ruling:
“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.”
Some two years later, a Second Circuit panel will unanimously reverse Weinstein’s ruling.
I’m pleased to learn from this Washington Post article that federal district judge Henry E. Hudson has rescinded his ruling last week that held that a 1975 Virginia law that allows only licensed physicians to perform abortions cannot be enforced against abortions in the first trimester. (In this post, I explained why I found Judge Hudson’s initial ruling deeply troublesome in several respects.)
Kudos to Judge Hudson for having the humility to recognize his error and to correct it.
According to the article, Hudson intends to address at trial factual disputes that supposedly bear on whether the physicians-only law imposes an “undue burden.” For the reasons stated in point 1 of my previous post, I believe that existing Supreme Court precedents entitle Virginia to a ruling in its favor as a matter of law.
2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.
Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage (but that will itself later become the victim of egregious acts of judicial activism).
Job-performance evaluations are routine for many Americans. Well, the American people have, in a sense, hired the president and the Senate, and they need to evaluate their performance when it comes to appointing federal judges.
The tough part is finding the right standard or criteria. It’s easy to find a yardstick that looks objective, but is really just a self-serving partisan benchmark. So to be on the safe side, let’s use standards offered by the Obama administration.
In July 2012, for example, White House Counsel Kathy Ruemmler issued a statement claiming that the “judicial vacancy rate has never been this high for this long.” That claim was not even close to being true when she made it; vacancies had declined steadily for the previous 18 months and, at 76, were the lowest in three years. In any event, there are 133 judicial vacancies today, 25 percent higher than when Trump took office.
In that same statement, Ruemmler claimed that “there are 20 judicial nominees waiting for consideration by the Senate, half of whom would fill vacancies deemed judicial emergencies.” Today, 36 judicial nominees are on the Senate’s executive calendar awaiting confirmation, 64 percent of them to judicial emergency vacancies.
In March 2013, the Obama White House released an infographic about his judicial nominees that included a section on “Delays in the Senate.” It criticized “unprecedented delays in the Senate confirmation process” resulting in 80.5 percent of Obama’s judicial nominees being confirmed. As the Heritage Foundation’s Judicial Appointment Tracker shows, that figure is only 56.5 percent for President Donald Trump’s judicial nominees.
In November 2013, Obama himself complained that judicial nominees who are confirmed with little dissent still have a long wait for a final vote. “So this isn’t obstruction on substance, on qualifications,” he said, it’s “just to gum up the works.” By then, five years into his presidency, the Senate had taken 12 votes to invoke cloture, or end debate, on judicial nominations, and only six of those votes failed. Only six filibusters – even when Senate rules allowed using a cloture vote to block a nomination.
In less than half the time under Trump, Obama’s party has forced the Senate to take 69 cloture votes on judicial nominations. And today, thanks to Democrats changing Senate rules, cloture votes can be used only to delay, but not to defeat, nominations. If 12 meaningful cloture votes served only to “gum up the works,” as Obama put it, what are six times as many meaningless cloture votes?
These are just a few of the criteria that the Obama administration used to evaluate how the Senate was conducting its part of the judicial appointment process. By these measures, the situation is much more serious today. Yet instead of helping to alleviate the problem, Democrats are making it worse.
1969—Mired in scandal, Supreme Court justice Abe Fortas announces his resignation from the Court. Fortas’s resignation comes less than a year after President Lyndon B. Johnson’s unsuccessful effort to have Fortas succeed Earl Warren as chief justice.
1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.
2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.
But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.
In a docket entry, the Ninth Circuit clerk’s office has taken responsibility for (and has corrected) the strange glitches in Judge Fletcher’s opinion in Kayer v. Ryan, so I have modified and updated my original post, which stated that “Fletcher and Judge Michelle T. Friedland and their law clerks … appear to have done some very poor proofreading.” My apologies for that mistaken speculation.
In a recent interview with the Washington Post, retired Supreme Court Justice John Paul Stevens, whose memoir is being released tomorrow, shows why the conflict over the kind of judge a president appoints is so important.
President Richard Nixon appointed Stevens, who turned 99 last month, to the U.S. Court of Appeals in 1970 and, five years later, President Gerald Ford appointed him to the Supreme Court. The Senate confirmed him to both judicial positions without any opposition. Stevens is the third longest serving member of the Supreme Court in American history.
Judges decide cases by interpreting and applying law to the facts and can best be evaluated by the process they follow in those tasks. Impartial judges interpret the law, such as the Constitution or statutes, as written and apply it without regard for which side wins or which interests might be advanced. Political judges interpret the law as they want it to be and apply it with an eye toward which party might benefit or the impact of their decisions.
Stevens’s Post interview made clear which side he’s on. He said that the 2008 decision in District of Columbia v. Heller was “[u]nquestionably the most clearly incorrect decision that the Supreme Court during my tenure on the bench.” In Heller, the Supreme Court voted 5-4 to embrace the “original understanding of the Second Amendment.” That amendment, the court said, protects an individual’s right to possess a firearm and to use it for traditionally lawful purposes such as self-defense.
The problem is not that Stevens thinks Heller was wrongly decided; after all, he wrote the primary dissenting opinion. No, the most important thing, as it is for every judge in every case, is the basis for that conclusion. Stevens revealed it in his Post interview.
“I think,” he said, “there’s no need for all the guns we have in the country and if I could get rid of one thing, it would be to get rid of that whole gun climate . . . [I]t seems to me we don’t have to have this kind of thing in this country, and we should do everything we can to try to change it.”
There you have it. The Heller decision was “clearly incorrect,” according to Stevens, because it has “such disastrous practical effects.” In fact, he was so driven by the effects he anticipated that he circulated his dissenting opinion weeks before the majority opinion was finished. In other words, he lobbied his colleagues to “do everything we can” to “get rid of that whole gun climate.”
But when the Constitution divides government power into three branches, to which does it give the power to decide what kind of climate we want in this country? Which branch has the power to consider the effects of different policies? Stevens, and judges like him, believe that the answer includes the one branch that the people do not elect.
The idea that any five members of the Supreme Court can, as Thomas Jefferson wrote, treat the Constitution like a “mere thing of wax,” twisting it into the form they need to accomplish their ends, is incompatible with the liberty our system of government was designed to provide. This is why the conflict over the appointment of judges is a conflict over the power of judges.
Daniel Webster, Senator from two states and Secretary of State under three presidents, said in 1837 that “good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” Judges must never be our masters.
Writing for a Ninth Circuit panel majority in Kayer v. Ryan, Judge William Fletcher begins his opinion with this curious sentence: “George Russell Kayer was convicted of little evidence to support the argument.”
Fortunately for Judge Fletcher and many of his Ninth Circuit colleagues, there appears not to be a crime of providing “little evidence to support the argument.”
Fletcher and Judge Michelle T. Friedland and their law clerks instead appear to have done some very poor proofreading. [Update (5/14, 7 a.m.): I have learned that the Ninth Circuit clerk’s office has taken responsibility for the glitches, so I am striking through the preceding sentence and a passage below.] Indeed, just two paragraphs later comes this mess (emphasis added):
Second, in the alternative, the Court held that even if there first degree murder [sic] and sentenced to death in Arizona Superior Court in 1997. During a brief penalty-phase hearing, Kayer’s counsel argued as a mitigating circumstance that Kayer suffered from mental illness and was a substance abuser, but provided very had been non-speculative evidence [sic] of the existence of such impairment, Kayer had failed to establish a “causal nexus” between the alleged impairment and the murder.
[Update (7:10 p.m.): The glitches appear to have been fixed.]
Untrustworthy in small things, untrustworthy in large. It seems likely that Fletcher also botched the ruling, as Judge John B. Owens (an Obama appointee but much sounder than Fletcher or Friedland) explains in his brief dissent that the majority’s reversal of Kayer’s death sentence flouts the highly deferential standard of AEDPA and ignores that the critical facts “are remarkably similar” to a previous case (Woodford v. Visciotti) in which the Supreme Court summarily reversed the Ninth Circuit.
Mark this one for another summary reversal.
Last week, the Senate voted to confirm Joseph Bianco and Michael Park — President Trump’s 38th and 39th circuit court judges, respectively — since Inauguration Day. By comparison, only 18 circuit court judges had been confirmed by this point in President Obama’s first term.
Also last week, Senate majority leader Mitch McConnell filed for cloture to end debate on the nomination of Ken Lee, one of President Trump’s currently pending nominees to the U.S. Court of Appeals for the Ninth Circuit. The Senate is also expected to vote this week on the confirmations of two district court nominees.
Here is a full update on the status of President Trump’s federal judicial nominations:
Current and known future vacancies: 158
Courts of Appeals: 8
District/Specialty Courts*: 150
Pending nominees for current and known future vacancies: 57
Courts of Appeals: 3
District/Specialty Courts*: 54
* Includes the Court of Federal Claims and the International Trade Court
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|
|Dan Bress (9th)||2/6/2019||96||No||Not yet scheduled|
Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes
|Nominee (Circuit)||Original Nomination Date||Days Since Original Nomination||Judiciary Committee Hearing Date|
Court of Appeals Nominees Awaiting Senate Floor Votes
|Nominee (Circuit)||Nomination Date||Days Since Original Nomination||Date Reported to Senate Floor|
|Dan Collins (9th)||11/13/2018||181||4/4/2019|
|Ken Lee (9th)||11/13/2018||181||4/4/2019|
Nominees Awaiting Floor Votes:40
Courts of Appeals: 2
District/Specialty Courts: 38
- # of pending nominees originally nominated > 600 days ago: 1
- # of pending nominees originally nominated > 500 days ago: 3
- # of pending nominees originally nominated > 400 days ago: 5
- # of pending nominees originally nominated > 300 days ago: 23
Nominees Confirmed by the Senate during the 116th Congress: 19
Supreme Court: 0
Courts of Appeals: 9
District/Specialty Courts: 10
Nominees Confirmed by the Senate since Inauguration Day: 104
Supreme Court: 2
Courts of Appeals: 39
District/Specialty Courts: 63
1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.
To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.