Law & the Courts

This Day in Liberal Judicial Activism—October 14

(Photo Illustration: NRO)

1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.

Law & the Courts

15 More Judicial Confirmations, with More to Come

Yesterday Senate majority leader Mitch McConnell and minority leader Chuck Schumer struck a deal in which Senate Democrats agreed to allow confirmation votes on 15 pending judicial nominees in exchange for an early recess in advance of November’s elections.

All 15 judicial nominees were confirmed yesterday. The group includes three federal appellate nominees—David Porter (CA3/PA), Ryan Nelson (CA9/ID), and Richard Sullivan (CA2/NY)—and twelve district-court nominees (William Ray, Liles Burke, Michael Juneau, Mark Norris, Eli Richardson, Thomas Kleeh, Peter Phipps, Susan Brnovich, Chad Kenney, Jeremy Kernodle, Lance Walker, and James Hanlon).

That takes President Trump’s total federal judicial appointments to 84—two Supreme Court justices, 29 federal appellate judges, and 53 federal district judges.

Even better: The Senate isn’t close to being done yet for the year. Senate Judiciary Committee chairman Chuck Grassley stated yesterday that he expects the Senate to confirm all the judicial nominations that remain on the Senate floor, plus any other nominations that the committee processes before the end of the year.

There are 32 judicial nominations pending on the Senate floor (one appellate and 31 district), and there are seven judicial nominations (two appellate and five district) ready to be reported out of committee. In addition, there are 14 more judicial nominations (four appellate and ten district) on which a committee hearing has been expected to occur by mid-November.

If all of these nominations are confirmed by year-end, that would take President Trump’s total to 137—two Supreme Court justices, 36 federal appellate judges, and 99 federal district judges.

For sake of comparison: President Obama’s total during his first two years was 62—two Supreme Court justices, 16 federal appellate judges, and 44 federal district judges.

President Trump, Senator McConnell, and Senator Grassley deserve huge congratulations.

Whether this tremendous progress continues over the next two years or instead comes to a screeching halt depends on whether or not Republicans retain control of the Senate going into the next Congress.

Law & the Courts

This Day in Liberal Judicial Activism—October 12

(Shutterstock)

1985—In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.

Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:

When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.

But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.

Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

Law & the Courts

A Look at President Trump’s Nominees to the Second and Ninth Circuits

This evening, President Trump announced his 18th wave of judicial nominees, including two nominees to the U.S. Court of Appeals for the Second Circuit and three nominees to the U.S. Court of Appeals for the Ninth Circuit.  With this announcement, only a handful of federal court of appeals vacancies lacking named nominees remain.

Filling these instrumental federal judicial appointments is a significant accomplishment by the President, as well as Senator Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley.

And the President continues his trend of making outstanding nominations to the courts of appeal.  The nominees announced today will bring significant experience and desperately needed philosophical diversity to the Second and Ninth Circuits.

Below are links to bios of the five new appellate court nominees announced today.

Joseph Bianco (Second Circuit)

Michael Park (Second Circuit)

Patrick Bumatay (Ninth Circuit)

Dan Collins (Ninth Circuit)

Ken Lee (Ninth Circuit)

Law & the Courts

Who is Joseph Bianco?

Judge Joseph Bianco is President Trump’s nominee to the U.S. Court of Appeals for the Second Circuit from New York.   

Age: 52

Current Position: U.S. District Judge, Eastern District of New York (New York, NY)

Education:

  • B.A., Georgetown University; magna cum laude (1988)
  • J.D., Columbia Law School; Kent Scholar (outstanding academic achievement); Editor, Columbia Law Review (1991)

Judicial Clerkships: Judge Peter K. Leisure, U.S. District Court for the Eastern District of New York (1992-1993)

Experience:

  • 1991-1992, 1993-1994: Associate, Simpson Thatcher LLP (New York, NY)
  • 1994-2003: Assistant U.S. Attorney, U.S. Attorney’s Office for the Southern District of New York (New York, NY)
  • 2003-2004: Counsel, Debevoise & Plimpton LLP (New York, NY)
  • 2004-2006: Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice (Washington, D.C.)
  • 2006-Present: U.S. District Judge, Eastern District of New York (New York, NY)

Career Notes:

  • President George W. Bush nominated Bianco to be a U.S. District Judge in 2005, and he was confirmed by voice vote on January 3, 2006.
  • As a political appointee in President George W. Bush’s Department of Justice, Bianco supervised the Counterterrorism Section, the Fraud Section, the Appellate Section, and the Capital Case Unit.
  • Judge Bianco has taught courses at St. John’s University School of Law, Hofstra University School of Law, and Touro Law Center on topics including Counterterrorism Law, Sentencing, and Criminal Procedure. 

Professional Activities

  • Judge Bianco is a frequent speaker and panelist at Federalist Society events on topics including Federalism and Separation of Powers, National Security Law, Government Enforcement and the Financial Sector.

Biographical Notes

  • Judge Bianco is a native of Flushing, New York and is an ordained Deacon in the Roman Catholic Church. He and his wife have six children.

 

Law & the Courts

Who is Michael Park?

Michael Park is President Trump’s nominee to the U.S. Court of Appeals for the Second Circuit from New York.

Age: 42

Current Position: Partner, Consovoy, McCarthy & Park LLP

Education:

  • B.A., Princeton University, magna cum laude (1998)
  • J.D., Yale Law School (2001); Managing Editor, Yale Law Journal

Judicial Clerkships: Judge Samuel Alito, U.S. Court of Appeals for the Third Circuit (2001-2002); Associate Justice Samuel Alito, U.S. Supreme Court (2008-2009)

Experience:

  • 2002-2006: Associate, WilmerHale LLP (New York, NY)
  • 2006-2008: Attorney Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)
  • 2009-2015: Partner, Dechert LLP (New York, NY)
  • 2015-Present: Partner, Consovoy, McCarthy & Park LLP (New York, NY)

Career Notes:

  • In private practice, Mr. Park has represented clients before the SEC, FINRA, and other federal and state regulators in a wide array of subject areas, including securities, criminal, commercial, administrative, and constitutional law.
  • While serving in the Office of Legal Counsel at the Department of Justice, Mr. Park advised White House and other Executive Branch officials on a variety of complex matters, including national security issues, constitutional questions, and congressional investigations.
  • Park is an adjunct professor at the Antonin Scalia Law School at George Mason University.

Professional Activities

  • Park is a member of the Board of Trustees of the Supreme Court Historical Society, the Board of Directors of Operation Exodus Inner City, and the Asian American Bar Association of New York.
  • Park is listed as an expert for The Federalist Society.

Awards

  • Park is a recipient of the National Asian Pacific American Bar Association’s “2013 Best Lawyers Under 40” award recognizing attorneys who have demonstrated prominence in the practice of law and dedication to the Asian Pacific American community.
Law & the Courts

Who is Patrick Bumatay?

Patrick Bumatay is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from California.

Age:  40 (approximate)

Current Position:  Mr. Bumatay is currently detailed from the U.S. Attorney’s Office for the Southern District of California in San Diego to the Office of the Attorney General, U.S. Department of Justice (Washington, D.C.).

Education:

  • B.A., Yale University; cum laude (2000); Phi Beta Kappa
  • J.D., Harvard Law School (2006), Articles Editor, Harvard Journal of Law & Public Policy (a leading law journal for conservative and libertarian legal scholarship)

Judicial Clerkship: Judge Timothy M. Tymkovich, U.S. Court of Appeals for the Tenth Circuit (2000-2001); Judge Sandra Townes, U.S. District Court for the Eastern District of New York (2009-2010)

Professional Experience:

  • February 2018-Present: Counselor to the Attorney General, Office of the Attorney General, U.S. Department of Justice (Washington, D.C.)
  • May 2017-February 2018: Senior Counsel to the Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.)
  • February 2017-April 2017; 2007-2008: Counsel, Office of Legal Policy, U.S. Department of Justice (Washington, D.C.)
  • 2012-Present: Assistant U.S. Attorney, U.S. Attorney’s Office for the Southern District of California (San Diego, CA)
  • 2010-2012: Associate, Morvillo Abramowitz Grand Iason Anello & Bohrer, P.C.(New York, NY)
  • 2008-2009: Counsel, Associate Attorney General, Office of the Associate Attorney General, U.S. Department of Justice (Washington, D.C.)

Career Notes:

  • As a federal prosecutor in the criminal enterprises and narcotics sections of the U.S. Attorney’s Office in San Diego, Mr. Bumatay has participated as lead counsel or second chair in nine bench and jury trials. He has also argued before Ninth Circuit Court of Appeals.
  • In the Attorney General’s Office, Mr. Bumatay advises the Attorney General on criminal matters, national opioid strategy, transnational organized crime, and prison and reentry policies.
  • Bumatay has worked on the confirmations of Chief Justice John Roberts, Justice Samuel Alito, Justice Neil Gorsuch, and Attorney General Michael Mukasey.
  • In private practice, Mr. Bumatay represented clients in criminal, regulatory, and civil matters involving allegations of market manipulation, credit ratings fraud, procurement fraud, collateralized debt obligation fraud, mortgage-backed securities fraud, insider trading, and obstruction of justice.

Professional Associations:

  • Bumatay is an active member of The Federalist Society. He is also a member of the Federal Bar Association, the National Asian Pacific American Bar Association, and the National Asian Pacific Islander Prosecutors Association
Law & the Courts

Who is Dan Collins?

Dan Collins is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from California.

Age:  55 (approximate)

Current Position:  Partner, Munger, Tolles & Olson LLP (Los Angeles, CA) 

Education:

  • B.A., Harvard University; summa cum laude (1985); Phi Beta Kappa
  • J.D., Stanford Law School (1999), with distinction; Order of the Coif; Notes Editor, Stanford Law Review

Judicial Clerkships: Judge Dorothy Nelson, U.S. Court of Appeals for the Ninth Circuit (1988-1989); Associate Justice Antonin Scalia, U.S. Supreme Court (1991-1992)

Professional Experience:

  • 1991-1996; 2003-Present: Partner, Munger, Tolles & Olson LLP (Los Angeles, CA)
  • 2001-2003: Associate Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.)
  • 1992-1996: Assistant U.S. Attorney, U.S. Attorney’s Office for the Central District of California (Los Angeles, CA)
  • 1989-1991: Attorney-Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)

Career Notes:

  • Collins’ practice at Munger, Tolles & Olson focuses on appellate and complex commercial litigation. Over the course of his career, he has argued 36 cases in the Ninth Circuit, including two before the en banc court, and four cases in the California Supreme Court. Mr. Collins has also argued before the International Court of Justice in The Hague.
  • In 2008, Mr. Collins obtained a complete reversal of the largest civil judgment in U.S. history (more than $603 million).
  • While serving in the Deputy Attorney General’s office, Mr. Collins coordinated the DOJ’s efforts on several major legislative and policy initiatives and testified multiple times before the House and Senate Judiciary Committees.
  • As a federal prosecutor in Los Angeles, Mr. Collins prosecuted more than 60 criminal cases, including eight jury trials. Collins was a member of the criminal appeals section, where he supervised the preparation of more than 100 appellate briefs and argued numerous cases before the Ninth Circuit.

Honors:

  • Collins has been recognized nationwide and in California as a leading appellate lawyer by Chambers USA.

 

Law & the Courts

Who Is Ken Lee?

Ken Lee is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from California.

Age:  43 (approximate)

Current Position:  Partner, Jenner & Block LLP (Los Angeles, CA)

Education:

  • B.A., Cornell University; summa cum laude (1997); Phi Beta Kappa
  • J.D., Harvard Law School (2000), magna cum laude

Judicial Clerkship: Judge Emilio Garza, U.S. Court of Appeals for the Fifth Circuit (2000-2001)

Professional Experience:

  • 2009-Present: Partner, Jenner & Block LLP (Los Angeles, CA)
  • 2006-2009: Associate Counsel to the President, The White House (Washington, D.C.)
  • July 2005-September 2005: Special Counsel, U.S. Senate Judiciary Committee (Washington, D.C.)
  • 2001-2005: Wachtell, Lipton, Rosen & Katz LLP (New York, NY)

Career Notes:

  • Lee has litigated dozens of consumer class action lawsuits in California, Florida, New York on behalf of companies in a wide variety of industries, including food, technology, and healthcare.
  • He has served as lead counsel in class action and other business litigation matters, and first-chaired jury trials, bench trials, and arbitrations.
  • Lee has also briefed and argued appeals before various federal circuit courts, including the Second Circuit, Fifth Circuit, and the Ninth Circuit.
  • During his tenure in The White House Counsel’s Office, Mr. Lee represented the White House in congressional and other governmental investigations, and provided advice for the President and senior White House officials on a host of legal and compliance issues.
  • Lee has maintained a robust pro bono practice, and has represented several indigent and incarcerated individuals in constitutional litigation.

Professional Associations:

  • Lee is listed as an expert for The Federalist Society and has been a speaker and panelist on the topics of Food & Drug Law, Class Actions, and the Constitutionality of the Affordable Care Act.
  • Lee serves on the Food Law Committee of the Litigation Section of the California State Bar

Honors:

  • In 2018, Los Angeles Business Journal named Mr. Lee one of its “Most Influential Minority Attorneys”
  • In 2015, Mr. Lee was profiled in Super Lawyers and was praised for his “creative strategies” and for “making things happen quietly.”
  • In 2014, The Daily Journal (the largest legal newspaper in California) named Mr.

Lee one of its “Top 20 Lawyers under 40” in California for his class action defense work on behalf of food companies.

Law & the Courts

Judicial Nominations Update

On Saturday, the Senate voted to confirm Brett Kavanaugh to the Supreme Court.  With Justice Kavanaugh’s confirmation, a total of 69 of President Trump’s nominees have been confirmed to the federal bench to date.

Now Senate Judiciary Committee Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell will return to the task of processing the federal judicial nominees who are still pending before the end of the 115th Congress.

Tomorrow, the Senate Judiciary Committee will hold a hearing on the nominations of Eric Murphy and Chad Readler to the U.S. Court of Appeals for the Sixth Circuit.  This hearing was thrice rescheduled on account of schedule disruptions due to the supplemental hearing held for Kavanaugh in late September.

Here is this week’s update on federal judicial nominations:

Current and known future vacancies:  168

Courts of Appeals:  18

District/Specialty Courts*: 150

Pending nominees for current and known future vacancies:  77

Courts of Appeals:  10

District/Specialty Courts:  67

* 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
Paul Matey (3rd) 4/12/2018 180 No Not yet scheduled
Eric Murphy (6th) 6/18/2018 113 No 10/10/2018
Chad Readler (6th) 6/18/2018 113 No 10/10/2018
Eric Miller (9th) 7/19/2018 82 No Not yet scheduled
Bridget Shelton Bade (9th) 8/27/2018 43 No Not yet scheduled
Allison Jones Rushing (4th) 8/27/2018 43 Yes Not yet scheduled

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Jonathan Kobes (8th) 6/11/2018 120 8/22/2018

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
David Porter (3rd) 4/12/2018 180 7/19/2018
Ryan Nelson (9th) 5/15/2018 147 9/13/2018
Richard Sullivan (2nd) 5/7/2018 155 9/13/2018

Nominees Awaiting Floor Votes: 38

Courts of Appeals:  3

District/Specialty Courts:  35

Nominees Confirmed by the Senate: 69

Supreme Court: 2

Courts of Appeals: 26

District/Specialty Courts:  41

Law & the Courts

Upcoming Senate Action on DOJ AAG Nominations

After the Senate’s vote on Saturday confirming Brett Kavanaugh’s nomination to the Supreme Court, Senate majority leader Mitch McConnell filed cloture motions on the extremely-long-pending nominations of Jeffrey Clark and Eric Dreiband to the positions, respectively, of Assistant Attorney General for DOJ’s Environment and Natural Resources divisions and Assistant Attorney General for DOJ’s Civil Rights Division. The votes on the cloture motions should occur on Wednesday morning.

Both Clark and Dreiband were first nominated in June 2017, some sixteen months ago.

Law & the Courts

This Day in Liberal Judicial Activism—October 9

(Shutterstock)

1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”

Law & the Courts

This Day in Liberal Judicial Activism—October 8

The New York Times Building in New York City. (Brendan McDermid/Reuters)

2006New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….  Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

Law & the Courts

This Day in Liberal Judicial Activism—October 6

2000—Liberal judicial activists eagerly seize opportunities to expand unsound or dubious precedents. In 1971, the Supreme Court had ruled in Bivens v. Six Unknown Federal Narcotics Agents that the Constitution confers a claim for damages against a federal agent for allegedly unconstitutional conduct. Writing for a Second Circuit panel in Malesko v. Correctional Services Corp., Judge Sonia Sotomayor rules that a Bivens claim may also be made against a private corporation acting under color of federal law.

One year later, the Supreme Court will reverse the Second Circuit ruling by a 5-4 vote.

Law & the Courts

This Day in Liberal Judicial Activism—October 5

Judge Stephen Reinhardt

1995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.” In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.

Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.” Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”: “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.” Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures.

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Arizona) shows. In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit: “The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.” Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains. First, the cause of action under which the plaintiff sued creates no remedy against a state. Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor. Ginsburg notes this “lapse” in Reinhardt’s reasoning: “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision. Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

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