Politics & Policy

Creating New Judgeships

The 115th Congress is wrapping up its legislative business. What will the 116th bring?

One likelihood is a bill to expand the federal judiciary. Here’s how Congress should handle it.

Two months ago, retiring Representatives Darrell Issa (R-Calif.) and Bob Goodlatte (R-Va.) introduced H.R.6755, the Judiciary Reforms, Organization and Operational Modernization Act of 2018. Title II incorporates an earlier recommendation of the Judicial Conference to create 52 new judgeships on the U.S. District Court and convert eight temporary district court judgeships to permanent status.

It is impossible to know whether the judiciary needs more judgeships, when nearly 16 percent of the judgeships it already has are empty. We are in the longest period of triple-digit judicial vacancies since the early 1990s.

A total of 48 vacancies already exist across 16 of the 23 judicial districts slated for new judgeships under this legislation. Overall, new case filings in these 23 districts have risen 15 percent in the last five years.

The central district of California, for example, has seven vacancies today. This bill would add seven more judgeships even though new filings have risen less than 4 percent.

The southern district of California has four current vacancies, with another opening next month. This bill would add three more judgeships to a court where new cases have actually decreased over the last five years.

The middle district of Florida would get six more judgeships, even though it already has two vacancies and the number of new cases has risen just three percent since 2013.

The eastern district of Texas has three current vacancies but would still get two more judgeships even though new case filings have plunged 21 percent in the last five years.

Put it all together, and the case for needing all these new judges seems weak.

And then there’s the cost. Expanding the federal government never comes cheap. The Congressional Budget Office estimates that the proposed expansion would cost approximately $500 million per year for additional salaries, benefits, courthouse modifications, and administrative costs. CBO estimates for previous judiciary-expansion legislation and Senate Judiciary Committee hearing testimony suggest that this is a conservative estimate.

It’s common sense to obtain an accurate diagnosis before getting a prescription. In this case, that does not mean that judicial vacancies must reach absolute zero. But vacancies averaged 6 percent of the judiciary in 1989, the year before Congress last created a significant number of judgeships. The vacancy rate this year has averaged more than 16 percent. There’s just no way to reliably assess how much the judiciary should expand when it’s currently deflated.

Title III of the Issa-Goodlatte bill covered issues related to court operations such as video recording and internet streaming of federal court proceedings. The number of judges and how they must run their courtrooms, however, are fundamentally different issues and, therefore, should be addressed separately.

If similar legislation is introduced next year, Congress should put off creating more judicial vacancies through new judgeships until the president and Senate fill the 100+ current judicial vacancies.

Law & the Courts

Cleaning Up the Establishment Clause Mess

A month ago, the Supreme Court granted two certiorari petitions that seek review of a Fourth Circuit ruling that illustrates the sorry mess of the Court’s existing Establishment Clause precedents. At its conference tomorrow, it should grant review of an Eleventh Circuit ruling that does likewise. Reviewing these rulings together will give the Court a real opportunity to begin setting things right.

Let’s start with the Fourth Circuit’s ruling in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Applying the amply criticized (and awful) Lemon test—from the Court’s 1971 ruling in Lemon v. Kurtzman—a liberal Fourth Circuit majority ruled that the Establishment Clause requires removal or destruction of a 93-year-old memorial to American servicemen who died in World War I because that memorial is in the shape of a cross. Applying that same test, the very liberal Judge Roger Gregory, in dissent, ruled that the memorial does not violate the Establishment Clause.

It was twenty-five years ago, in one of his most colorful opinions, that Justice Scalia called for the Court to overrule Lemon:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under…. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart …,  and a sixth has joined an opinion doing so.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts.” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. [Citations omitted.]

The granted petitions give the Court the opportunity to bury Lemon permanently.

In Kondrat’yev v. City of Pensacola, an Eleventh Circuit panel ruled that a cross that has stood in a city park without controversy for over 75 years violates the Establishment Clause. The panel determined that circuit precedent, which two of three panel members declared to be wrong, required its ruling.

Law professor (and Establishment Clause expert) Michael McConnell and the Becket Fund for Religious Liberty have filed a certiorari petition on behalf of the city of Pensacola in Kondrat’yev. As they explain in their reply brief, hearing their case in tandem with the case from the Fourth Circuit would ensure that the Court is able to clear up the Establishment Clause mess. For starters, their case tees up the threshold issue of whether mere “offended observers” have standing to bring Establishment Clause challenges. Further, it presents a different and, they argue, “a more representative” set of facts on passive religious displays, so considering it along with the Fourth Circuit case would ensure that the Court provides useful guidance to the lower courts.

Law & the Courts

This Day in Liberal Judicial Activism—December 5

1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist. Consider future-Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona.

Florida’s speedy-trial rule generally provided that every person charged with a felony shall be brought to trial within 180 days of the charge or be forever protected from prosecution on that charge. Under an express exception ((b)(1)) to the rule, a “person who is … incarcerated in a jail or correctional institution outside the jurisdiction of this State … is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending.” But Barkett rules that the 180-day period for a person who had been charged with bank robbery in Florida ran while he was incarcerated in California, as she reads into the (b)(1) exception the additional requirement that the person have been incarcerated on charges pending in the other state.

Some two years later, the Florida Supreme Court unanimously reverses Barkett’s ruling. “The language of (b)(1),” it concludes, “is without ambiguity…. Clearer language than this is difficult to envisage. Yet the lower court [i.e., Barkett] puts a gloss on it, unwarranted by anything that appears in [the speedy-trial rule].”

2002—Liberal judicial activists, usually so dismissive of originalist jurisprudence, will resort to originalist, or at least originalist-sounding, arguments when it suits them.

In a lengthy historical exegesis in Silveira v. Lockyer, Ninth Circuit judge Stephen Reinhardt concludes that the Second Amendment does not confer any individual right to own or possess any firearms but instead “affords only a collective right.” Among other things, Reinhardt determines that the term “bear arms” “generally referred to the carrying of arms in military service—not the private use of arms for personal purposes,” and that the term “keep” (in “keep and bear arms”) was not broader in scope than “bear.”

Dissenting months later from the denial of rehearing en banc, Judge Alex Kozinski observes:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text.… But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”

In another opinion dissenting from the denial of rehearing en banc, Judge Andrew Kleinfeld (joined by Kozinski and two other judges) criticizes Reinhardt for “swim[ming] against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article”—by a former Reinhardt clerk, as it happens—“that claims ‘keep and bear’ means the same thing as ‘bear,’ which itself means only to carry arms as part of a military unit.” “The military meaning,” Kleinfeld acknowledges, “is certainly among the meanings of ‘bear,’ as is ‘large, heavily built, furry, four-legged mammal,’ and ‘investor pessimistic about the stock market.’ But the primary meaning of ‘bear’ is ‘to carry,’ as when we arrive at our host’s home ‘bearing gifts’ and arrive at the airport ‘bearing burdens.’” And “keep,” Kleinfeld points out, has the primary meaning of “to retain possession of”—and poses an interpretive challenge only for “those who have chosen in advance to evade the ordinary meaning of the word.” Kleinfeld also explains that the phrase “the right of the people”—which Reinhardt “simply skips over”—refers to an individual right in the usage of the Bill of Rights.

In June 2008, in District of Columbia v. Heller, all nine justices will reject Reinhardt’s “collective right” position (even as they split 5-4 on the scope of the individual Second Amendment right).

2008—Montana trial judge Dorothy McCarter rules (in Baxter v. Montana) that the provisions of the Montana constitution that state that the “dignity of the human being is inviolable” and that set forth a “right of individual privacy” confer a constitutional right to physician-assisted suicide. Never mind the longtime prohibition in Montana law, and Anglo-American law more generally, on assisted suicide.

One year later, the Montana supreme court will decline to ratify McCarter’s constitutional frolic, as a narrow majority instead misconstrues Montana statutory law to protect a physician from prosecution for aiding a person to commit suicide.

2017—Federal district judge William Alsup files in the Supreme Court his own brief disputing the federal government’s motion for a stay of his order that would have required it to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrival (“DACA”) policy. Two weeks later, in a unanimous opinion, the Court will grant the government’s motion.

Law & the Courts

Judicial Nominations Update

Thanks to Senator Jeff Flake, the Senate’s lame duck session is turning out to be a disappointment on the judicial nominations front thus far.

Last Thursday, Senate Judiciary Committee Chairman Chuck Grassley cancelled the Committee’s executive business meeting as a result of Sen. Flake’s continuing hold on judicial nominees, which Flake announced on November 14th.  Sen. Flake said that he would oppose all of President Trump’s judicial nominees until legislation to protect Special Counsel Robert Mueller from being fired was brought to a vote on the Senate Floor.  (Note that such a bill is widely viewed to be unconstitutional.)

Sen. Flake sits on the Senate Judiciary Committee and without his vote, a total of 21 judicial nominees (including six circuit court nominees and 15 district court nominees) remain stranded in the Committee, which Republicans control by a one-vote margin.  This is to say nothing of the 33 judicial nominees who are currently waiting on the Senate Floor for confirmation votes.​  Up until now, the nominations process has been running smoothly and has been an exceptional example of cooperation between the White House and GOP Senators.  It is a shame to see this process breaking down during the lame duck session.

This week, the Senate is expected to vote on the confirmation of Jonathan Kobes, President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit.  Last Thursday, the Senate narrowly voted to end debate on the Kobes nomination, with Vice President Pence breaking the tie—again because of Sen. Flake’s opposition. (Because Senator Jim Inhofe had to miss the vote, Sen. Flake did, however, agree to vote live pair, or present, to offset Inhofe’s missed “yea” vote.)

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

Current and known future vacancies:  159

Courts of Appeals:  16

District/Specialty Courts*: 143

Pending nominees for current and known future vacancies:  73

Courts of Appeals:  13

District/Specialty Courts*:  60

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Joseph Bianco (2nd) 11/13/2018 21 No Not yet scheduled
Michael Park (2nd) 11/13/2018 21 No Not yet scheduled
Patrick Bumatay (9th) 11/13/2018 21 No Not yet scheduled
Dan Collins (9th) 11/13/2018 21 No Not yet scheduled
Ken Lee (9th) 11/13/2018 21 No Not yet scheduled
Neomi Rao (DC) 11/14/2018 20 N/A Not yet scheduled

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Eric Murphy (6th) 6/18/2018 169 10/10/2018
Chad Readler (6th) 6/18/2018 169 10/10/2018
Eric Miller (9th) 7/19/2018 138 10/24/2018
Bridget Shelton Bade (9th) 8/27/2018 99 10/24/2018
Allison Jones Rushing (4th) 8/27/2018 99 10/17/2018
Paul Matey (3rd) 4/12/2018 236 11/14/2018

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Jonathan Kobes (8th) 6/11/2018 176 10/11/2018

 Nominees Awaiting Floor Votes: 33

Courts of Appeals:  1

District/Specialty Courts:  32

Nominees Confirmed by the Senate: 84

Supreme Court: 2

Courts of Appeals: 29

District/Specialty Courts:  53

Law & the Courts

Do ‘Acting’ Agency Heads Require the Senate’s Advice and Consent?

The question in this post’s title is the topic of a panel discussion that I’ll be taking part in this Friday with law professors Marty Lederman and Jennifer Mascott and constitutional lawyer David Rivkin. (I summarized here the Office of Legal Counsel’s recent opinion answering the question in the negative.)

The panel closes out an impressive day-long conference—“New Normals? The Trump Administration, the Courts, and Administrative Law”—that Adam White has organized in his capacity as director of the C. Boyden Gray Center for the Study of the Administrative State at Antonin Scalia Law School.

Law & the Courts

This Day in Liberal Judicial Activism—December 3

Police officers in Chicago, 2012 (Reuters phoot: Eric Thayer)

2012—A Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt, rules that a police officer was not entitled to qualified immunity on a plaintiff’s claim that he had violated her constitutional rights by entering her yard in pursuit of a suspect. Under clearly established law, Reinhardt maintains, the police officer should have known that his entry was unconstitutional.

One year later, the Supreme Court summarily reverses Reinhardt in a unanimous per curiam ruling (in Stanton v. Sims). Here’s how the Court summarizes the actual state of this supposedly “clearly established” body of law:

“Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.”

Law & the Courts

This Day in Liberal Judicial Activism—December 2


2009—In an opinion concerning the Court’s denial of certiorari in Johnson v. Bredesen, Justice Stevens, joined by Justice Breyer, opines that Tennessee violated a death-row inmate’s Eighth Amendment rights when it delayed carrying out his execution “for nearly 29 years.” Justice Thomas responds:

In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery. He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. His challenges were unsuccessful. He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the “lengthy and inhumane delay” occasioned by his appeals would violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

It has been 14 years since Justice Stevens proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.

Law & the Courts

Re: Senator Scott Falls for Farr-Fetched Smear

Here is how the print edition* of today’s Wall Street Journal explains Senator Tim Scott’s decision to vote against the nomination of Thomas Farr to a federal district judgeship:

Mr. Farr served as a legal adviser to the late Republican Sen. Jesse Helms in his 1990 re-election campaign, which was sued by the Justice Department for mailing postcards allegedly aimed at intimidating black voters. The case was ultimately settled.

In written answers to the Senate Judiciary Committee, Mr. Farr said he wasn’t aware of the mailing until after the cards were sent.

In announcing his opposition, Mr. Scott cited a 1991 Justice Department memo that called into question whether Mr. Farr told the truth about his involvement with the postcards.

During the confirmation process, he told senators he had nothing to do with them. The memo suggests he was the “primary coordinator” of those efforts, according to a congressional aide who had seen it.

If this is Senator Scott’s actual thinking, it reflects an elementary confusion between the 1984 Helms campaign and the 1990 Helms campaign. The 1991 DOJ memo states in a footnote (page 12, note 7) that “Farr was the primary coordinator of the 1984 ‘ballot security’ program.” This is entirely consistent with Farr’s testimony. In a letter to Senator Booker last December (discussed more fully in this post of mine), Farr stated that he “managed a ballot security program” in the 1984 campaign—and that “[t]here were no complaints about the legality of the 1984 mailings.”

In short, contrary to WSJ’s account of Scott’s thinking, there is nothing in the 1991 DOJ memo that “call[s] into question” Farr’s testimony that he had no involvement with the postcards that the 1990 campaign sent out.

* The online version of the article originally contained a similar passage, but after I pointed out the confusion, the reporters eliminated the error, even as they, in the version I now see, falsely credit Scott’s claim that the 1991 memo “shed additional light” on Farr’s work. As I explain here, there is nothing in the 1991 memo that wasn’t known a year ago, and that memo confirms Farr’s testimony.

Law & the Courts

Senator Scott Falls for Farr-Fetched Smear

Per this Washington Post article, Senator Tim Scott, in explaining his decision to vote against, and thereby kill, the nomination of Thomas Farr to a federal district judgeship, asserts that a long 1991 Department of Justice memo that was leaked a few days ago “shed new light on Mr. Farr’s activities” during the 1990 Helms campaign. But I have no idea what “new light” Scott thinks the memo shed or how there is anything new in it that reflects unfavorably on Farr.

As I explained a year ago, Farr was among those who attended a meeting in mid-October 1990 with a consultant who was proposing to do a ballot-security program for the campaign. As Farr explained a year ago in a letter to Senator Booker, he told the meeting participants that “there was no reason to do a card mailing in 1990 because North Carolina law had been changed and returned cards could not be used to challenge voters.” The discussion on pages 12 to 13 of the DOJ memo is entirely consistent with Farr’s explanation from a year ago and, so far as I can see, does not cast any negative light on Farr.

The subject of the DOJ complaint against some members of the campaign team concerned postcards that the campaign drafted in late October 1990. One year ago, campaign manager Carter Wrenn confirmed Farr’s testimony that Farr had no knowledge of those postcards: “Tom hadn’t seen the card that had been mailed, did not know it had been mailed, or know who it was mailed.” Nothing in the DOJ memo suggests otherwise—which explains why DOJ’s complaint did not name Farr as a defendant.

As Farr explained a year ago:

When I first saw the language on the card after it had been mailed and was advised as to whom it had been mailed, I was appalled. I immediately recommended that the Helms Committee cancel their 1990 ballot security program which they did. I then spent the next several months working with the Justice Department to resolve the matter with a consent decree.

As with the Ryan Bounds fiasco last summer, it appears that Senator Scott has allowed himself to be snookered.


Law & the Courts

This Day in Liberal Judicial Activism—November 30

Justice Anthony Kennedy (Chip Somodevilla/Getty)

1979—President Carter nominates This Day Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit.

1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. Ginsburg’s decision not to proceed with his intended nomination, President Reagan nominates Ninth Circuit judge Anthony M. Kennedy to fill the seat vacated by retired Justice Lewis F. Powell Jr.

1989—By a vote of 4 to 3, the Florida supreme court concocts a categorical rule that police violate the Fourth Amendment when they conduct drug searches by boarding intercity buses and questioning passengers. In her melodramatic majority opinion (in Bostick v. State), Justice Rosemary Barkett posits that the “intrusion upon privacy rights caused by the [practice] is too great for democracy to sustain,” and she equates the police conduct with methods employed by Nazi Germany.

On review, the Supreme Court (in Florida v. Bostick) rejects Barkett’s rule by a 6 to 3 vote (with Marshall, Stevens, and Blackmun in dissent). Justice O’Connor’s majority opinion determines that the same totality-of-the-circumstances inquiry that governs whether “encounters that take place on a city street or an airport lobby” constitute a seizure “applies equally to encounters on a bus.”

On remand, Barkett again concludes that an unlawful seizure occurred. This time, though, she is in dissent.

Law & the Courts

Democrats Are Projecting Their Opposition to Trump on Judicial Nominees

(Carlos Jasso/REUTERS)

With Vice President Mike Pence breaking the tie, the Senate on November 28 voted 51-50 to end debate on the nomination of Thomas Farr to the U.S. District Court for the Eastern District of North Carolina. On the one hand, this was unprecedented: Never before has the Senate needed a tie-breaker to either invoke cloture or confirm a federal judge. On the other hand, it was entirely predictable, given the intransience of Senate Democrats, who persist in taking out their opposition to Donald Trump on his nominees.

The seat to which Farr is nominated has been open since the end of 2005 and has been designated a “judicial emergency” vacancy since July 2007. George W. Bush nominated Farr to this seat in 2007 but Democrats, who controlled the Senate, refused to give him a hearing. Donald Trump nominated Farr to the same position in July 2017.

Farr has practiced law in North Carolina for 35 years. His critics accuse him of complicity in certain “voter suppression” tactics during the 1984 and 1990 re-election campaigns of Senator Jesse Helms, R-N.C. Farr was general counsel for those campaigns.

Such accusations have become all too predictable as well. Incendiary allegations are made against a judicial nominee, who then becomes guilty until proven innocent. That disreputable tactic is no more legitimate against Farr than it was against Justice Brett Kavanaugh. There’s no evidence to contradict Farr’s denial that he had anything to do with those campaign activities, and only found out about them afterward.

That should be enough, but there’s more. Folks may remember the flap earlier this year about the so-called “blue slip” process. That’s the piece of blue paper on which senators indicate support or opposition for someone nominated to a judicial vacancy in their state. Senate Democrats argued that home-state senators’ views should determine whether the process proceeds or stops.

On May 8, 2018, for example, Senator Patrick Leahy, D-Vt., explained that home-state senators “know our states. We know who is qualified to fill lifetime appointments to the bench.” He said the same thing on June 7 and July 18.

Previously, on March 6, 2012, when he chaired the Judiciary Committee, Leahy similarly emphasized “the long tradition of deference on district court nominees to the home state senators.” A week later, Leahy again explained that nominations to the U.S. District Court “have always been considered with deference to the home state senators who know the nominees and their states best.”

That’s a fine sentiment, at least when senators want to block nominees of the other party or promote nominees of their own. But if that’s a legitimate standard, if it’s even a little bit more than partisan politics, then it applies today as well because Farr’s home state senators, Richard Burr and Thom Tillis, strongly support his nomination.

One more thing. Democrats, including Leahy, have repeatedly pronounced American Bar Association ratings to be the “gold standard” for evaluating judicial nominees. The ABA committee awarded Farr its top “well qualified” rating — unanimously. In fact, it’s done so twice, in both 2007 and 2017. The ABA’s rating covers “judicial temperament” which includes a nominee’s “freedom from bias” and “commitment to equal justice under the law.”

No one accuses the ABA of being conservative. Indeed, at least four studies (here, here, here, and here) have found systematic bias against Republican nominees in the ABA’s ratings. So for Farr to have his commitment to equal justice praised so highly by a liberal lawyers’ group, that commitment has to be really strong.

Clearly something other than the merits or qualifications of nominees is driving the opposition nominees. Eighty-three percent of Trump’s appointees to the U.S. Court of Appeals have been rated “well qualified” by the ABA. Yet these same appointees have received an average of 32 votes against confirmation. To put that in context, consider that only 69 percent of Barack Obama’s appellate court judges were rated “well qualified” in his first two years, yet they received, on average, just seven votes against.

Senate Democrats have each voted, on average, against 29 Trump judicial nominees. In fact, more than three in five have opposed a majority of them. Until this Congress, no senator in history had ever voted against more than six judicial nominees during a president’s first two years in office.

There’s no explanation for this radical change except raw partisan politics. Senate Democrats are using Trump’s nominees as proxies for Trump himself; voting against them means voting against him. This is the ultimate politicization of the judicial appointment process.

Law & the Courts

Yoo/Phillips Chart a Path Ahead for Roberts Court

From the beginning of Chief Justice Roberts’s tenure in 2005 through the most recent Supreme Court term, Justice Kennedy almost always provided the decisive vote in sharply divided cases. For that reason, I did not think that the convention of referring to the Court by the name of the Chief Justice was fair to Roberts. But with the replacement of Justice Kennedy by Justice Kavanaugh, the Chief Justice is far more likely to have a working conservative majority that is broadly aligned with his jurisprudential vision. Indeed, he has presumably replaced Kennedy as the median member of the Court. So now—and, I hope, for many years to come—it’s time to see what a real Roberts Court is like.

In an ongoing series (five to date) of interesting and insightful essays over several weeks on National Review’s home page, law professor John Yoo and attorney James C. Phillips are setting forth a project of “constitutional restoration” for the Roberts Court—a path by which “the Court can systematically begin to restore the Constitution to its original meaning.” While no one is likely to agree with every single proposal they make, their essays deserve careful consideration. In order of appearance, they address (1) the Left’s and the Right’s different visions of the courts and distinct approaches to judging; (2) how to tame the administrative state; (3) rethinking so-called “privacy” jurisprudence on abortion and other matters; (4) protecting Second Amendment rights; and (5) restoring the original meaning of the First Amendment’s Religion Clauses.

Law & the Courts

Justice Scalia’s New ‘On Faith: Lessons from an American Believer’

I am very pleased to announce the forthcoming publication of another collection of Justice Scalia’s work, titled On Faith: Lessons from an American Believer. Just as with the New York Times bestselling Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, Christopher J. Scalia (a son of the Justice) and I had the privilege of co-editing this collection. Both volumes are published by Crown Forum, an imprint of Penguin Random House.

As the double meaning of the book’s subtitle suggests, On Faith collects Justice Scalia’s thoughts both about religious belief and about the place of religion in American public life. The collection includes speeches (mostly drawn from Scalia Speaks), excerpts from some of Justice Scalia’s Supreme Court opinions, and reflections on his faith by his friends, colleagues, law clerks, and family.

On Faith also features a beautiful foreword by Justice Thomas (filling the role that Justice Ginsburg so generously played in Scalia Speaks), a moving introduction by Fr. Paul Scalia, and Fr. Scalia’s powerful homily at his father’s funeral Mass.

So pre-order now. And while you’re at it, buy several Scalia Speaks as Christmas gifts for your friends and loved ones (and, if you haven’t done so already, as a special treat for yourself).

Law & the Courts

This Day in Liberal Judicial Activism—November 29

Army recruits train at Fort Jackson, S.C., 2006 (Photo: Staff Sergeant Shawn Weismiller)

2004—Objecting to governing law on homosexuals in the military, many law schools restricted the access of military recruiters to their students. In response, Congress enacted the Solomon Amendment, which provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.

In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.” According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.

On review, the Supreme Court unanimously reverses, in an opinion by Chief Justice Roberts. Roberts makes short work of the Third Circuit’s reasoning. The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.” Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.

2016—Having earlier found North Carolina’s legislative districts to be the product of an unconstitutional racial gerrymander, a three-judge panel in the Middle District of North Carolina (in Covington v. North Carolina) orders the state to hold a special election in the fall of 2017, smack in the middle of the two-year term of the legislators elected in November 2016. In addition to cutting the legislators’ terms in half, the court order would also suspend the candidate-residency requirements in the state constitution for legislative candidates in the special election.

Six weeks later, the Supreme Court will block the panel’s order, and in June 2017, in a unanimous summary per curiam ruling, the Court will vacate the order. The Court chastises the panel for “address[ing] the balance of equities in only the most cursory fashion,” and it says that it lacks “confidence that the court adequately grappled with the interests on both sides of the remedial question before us.”

Law & the Courts

This Day in Liberal Judicial Activism—November 28

Retired Supreme Court Justice John Paul Stevens departs the funeral of Supreme Court Associate Justice Antonin Scalia at the Basilica of the National Shrine of the Immaculate Conception in Washington, February 20, 2016. (Carlos Barria/Reuters)

1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas. Not long before his death at the end of 2006, Ford rashly states that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause. But Ford’s actions belie his words, for (as this essay of mine explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law.

2016—In what Fourth Amendment expert Orin Kerr will critique as yet another “very unpersuasive” opinion, magistrate judge James Orenstein rejects the government’s application for a search warrant on the spurious ground that the target of the search had consented to the search. Orenstein, Kerr observes, is “a leader in the Magistrate’s Revolt, a small group of federal magistrate judges who have often come up with unexpected theories to reject court-order applications in computer search and surveillance cases.”

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