Law & the Courts

Judge James Ho on Judge Carlton Reeves’s ‘Alarming Disrespect’ for Opponents of Abortion

A year ago, I highlighted an opinion by federal district judge Carlton W. Reeves in which he entered a permanent injunction against a Mississippi law that prohibits abortions after 15 weeks of gestation. As I noted, while Reeves’s bottom-line ruling struck me as a straightforward application of the Supreme Court’s existing (but deeply unsound) abortion regime, it was lamentable that Reeves couldn’t refrain from littering his opinion with various injudicious remarks.

On Friday, a Fifth Circuit panel affirmed Reeves’s ruling. In a noteworthy separate opinion concurring in the judgment (beginning on page 17 here), Judge James C. Ho explained why he was “deeply troubled by how the district court [Judge Reeves] handled this case.” Some excerpts (citations simplified):

The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life….

The district court no doubt believes that its opinion faithfully reflects one side of the debate—the side that believes that abortion is a necessary component of a woman’s personal autonomy. But the Supreme Court has made clear that both sides of the debate deserve respect. “Men and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy.” Planned Parenthood v. Casey (1992). Countless Americans believe in good faith that abortion is “nothing short of an act of violence against innocent human life.” The majority in Casey even acknowledged that “[s]ome of us as individuals find abortion offensive to our most basic principles of morality.”

Instead of respecting all sides, the district court opinion disparages the Mississippi legislation as “pure gaslighting.” It equates a belief in the sanctity of life with sexism, disregarding the millions of women who strongly oppose abortion. And, without a hint of irony, it smears Mississippi legislators by linking House Bill 1510 to the state’s tragic history of race relations, while ignoring abortion’s own checkered racial past.

(See pp. 27-31 for Judge Ho’s elaboration of these points.)

Ho’s opinion also draws on the history of litigation that preceded Brown v. Board of Education to explain why it would be proper for a district court to allow discovery on a state’s interest in preventing abortions that cause gratuitous pain to unborn babies. (See pp. 21-25.)

Law & the Courts

This Day in Liberal Judicial Activism—December 15

1995—The Minnesota supreme court rules (in Women of the State of Minnesota v. Gomez) that the state constitution requires public funding of supposedly “therapeutic” abortions when the state funds childbirth-related medical services.

In dissent, Justice Mary Jeanne Coyne points out that the majority’s suggestion that “only abortions necessitated by significant health considerations will be state-funded” is misleading, as it is “more than likely that [any woman seeking an abortion] will find a physician who will agree that the stress of continuing an unwanted pregnancy justifies an abortion.” Indeed, she observes, the majority “frankly extols abortion as a positive good,” and its holding is “driven more by enthusiasm for the underlying right of privacy recognized in Roe v. Wade”—that is, the right to an abortion—“than by a principled understanding of the actual holding of Roe and of the relationship between a constitutional right and government funding.”

Justice Coyne’s prediction that the “therapeutic” restriction will be illusory will quickly prove to be true. In the last full year under the pre-Gomez regime, Minnesota taxpayers paid for 23 abortions for low-income women in cases of rape, incest, or threats to the life of the mother. In 1996, Minnesota taxpayers will pay for 3,340 abortions for low-income women. That number will grow to 4,407 by 2018.

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

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

Law & the Courts

This Day in Liberal Judicial Activism—December 14

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

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

Law & the Courts

Sixth Circuit Grants En Banc Rehearing on Ohio Abortion Law

As I discussed more fully in this post, in October a divided panel of the Sixth Circuit barred the state of Ohio from enforcing its law that prohibits medical providers from performing an abortion if they have “knowledge that the pregnant woman is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome.

I’m pleased to report that the Sixth Circuit has granted the state of Ohio’s petition for rehearing en banc. In its petition, the state argued that the panel majority erred when it concluded that Supreme Court precedent creates a “categorical” right to a pre-viability abortion. It also emphasized the state’s “critically important” interests in protecting the dignity of people with Down syndrome and in preventing the medical profession from promoting eugenic “solutions.”

Oral argument before the en banc court will take place on March 11.

Law & the Courts

En Banc Eleventh Circuit Dismisses Equal-Protection Challenge to Alabama Minimum-Wage Law

In July 2018, a panel of the Eleventh Circuit ruled (in Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act “have stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.” In my critique back then, I explained that the panel’s reasoning struck me as farfetched, with radical implications for future judicial intrusion on the legislative processes.

Today the en banc Eleventh Circuit ruled, by a vote of 7 to 5, that the plaintiff employees did not have Article III standing to sue the state attorney general. It therefore found it unnecessary to reach the equal-protection claim. On the standing question, the en banc majority ruled that plaintiffs failed to satisfy the “traceability” and “redressability” components of standing. That is, they could not trace their injuries (alleged lower wages) to anything that the state attorney general did wrong (slip op. at pp. 13-23), and a judgment against the state attorney general would not plausibly have led their employers to pay a higher wage (pp. 23-33). I’ll leave it to standing mavens to sort through the competing arguments made by the majority and the dissenters.

Law & the Courts

Year-End Invitation

Please indulge my once-a-year pitch:

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

Law & the Courts

Christmas Books

Are you looking for books to give to family members or friends? Or to suggest that they give you? Well, I have a couple of recommendations for you—two books of Justice Scalia’s writings that I had the privilege of co-editing:

One is On Faith: Lessons from an American Believer. 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, 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, a moving introduction by Fr. Paul Scalia, and Fr. Scalia’s powerful homily at his father’s funeral Mass.

The second is the New York Times bestselling Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, a delightful collection of dozens of Justice Scalia’s speeches on on topics as varied as the law, faith, virtue, pastimes, and heroes and friends. This volume features a touching foreword by Justice Ginsburg.

Law & the Courts

This Day in Liberal Judicial Activism—December 13

(Brendan McDermid/Reuters)

1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972.

In the meantime, the Court will issue its ruling in Eisenstadt v. Baird, which extends a right to contraception to unmarried persons. (See This Day for March 22, 1972.) Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple of extraneous words: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

2013—“To put it simply, polygamy is now lawful in Utah.” That’s how the winning attorney for Cody Brown and his “Sister Wives” of reality-show fame celebrates federal district judge (and Bush 43 appointee) Clark Waddoups’s remarkably strange and rambling opinion in Brown v. Buhman.

Beyond relying extensively on leftist academic Edward Said’s theory of “orientalism,” Waddoups rejects the Utah supreme court’s authoritative reading of one part of Utah’s anti-bigamy statute, and he unpersuasively concludes that the cohabitation prong of the statute has been enforced in a discriminatory manner against those engaged in “religious cohabitation.”

In May 2016, the Tenth Circuit will rule that Waddoups should have dismissed the case as moot after prosecutors adopted a policy under which Brown and his wives would not face prosecution. The Tenth Circuit orders Waddoups to vacate his judgment.

Law & the Courts

On Confirmations of District Judges

Lots of attention has properly been paid to President Trump’s remarkable record of achievement on federal appellate nominations. Over the course of three years, Trump has now had 50 appellate nominees confirmed. That compares very favorably to President Obama’s total of 55 over his eight years in office. Plus, Trump’s appellate nominees have, overall, been of a remarkably high caliber. Even Ian Millhiser, an outspoken critic of judicial conservatism, acknowledges in this interesting Vox article that Trump has “identif[ied] many of the most talented conservative stalwarts in the entire legal profession to place on the bench” and that “based solely on objective legal credentials, the average Trump [appellate] appointee has a far more impressive résumé than any past president’s [appellate] nominees.”

That said, I’ll offer a few quick observations here on district-court nominations:

1. One critical fact to keep in mind on district-court nominations is that the Senate Judiciary Committee’s blue-slip policy remains in full force on those nominations. That means that home-state senators have an effective veto over district-court nominees. So in “blue states” (which I will define here to mean states with two Democratic senators) and in “purple states” (states with one Democratic senator), the White House has to strike deals with Democratic senators if it wants to get district-court nominees confirmed. That’s why you’ll find examples of Trump’s district-court nominees who are essentially the picks of home-state Democratic senators.

2. The Senate has confirmed 120 of Trump’s district-judge nominees. (President Obama had 97 confirmed in his first three years.) More than half—67—of those confirmations have occurred over the past eight months, in the aftermath of the Senate’s adoption of a rule limiting the (never or rarely used) hours of post-cloture debate on district-court nominations.

There are currently 18 district-court nominations awaiting action on the Senate floor. Of the 18, 13 are from blue or purple states (and have thus already cleared the blue-slip hurdle), so you’d think that there would be a deal to get most or all confirmed before the Senate recesses for the year (probably at the end of next week). But we’ll see.

There are 7 district-court nominees who will soon be reported out of committee and 17 more who await their committee hearing.

3. There are some 50 or so district-court vacancies (both for current vacancies and declared future vacancies) for which there are not nominations. That includes, for example, six vacancies in the District of New Jersey, two of which date back to early 2015.

On longstanding vacancies on which the White House and home-state Democratic senators haven’t yet been able to strike a deal, it seems unlikely that they will be able to do so before the 2020 elections.

Law & the Courts

This Day in Liberal Judicial Activism—December 12

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

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

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

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

Law & the Courts

Here’s What Senator Blumenthal Did Not Tell You

Senator Richard Blumenthal (D., Conn.) on Capitol Hill in Washington, D.C., May 1, 2019. (Aaron P. Bernstein/Reuters)

On Dec. 10, Senator Richard Blumenthal (D., Conn.) argued against confirming Lawrence VanDyke to the U.S. Court of Appeals. Doing so, he said, would depart from “bedrock principles that once guided the exercise of the Senate’s constitutional duty to advise and consent” on the president’s nominations. Blumenthal neglected to mention some important information that puts his criticisms in a very different light.

First, Blumenthal said that Van Dyke does not have the support of his home state senators. He failed to explain that, while such support has long been critical for nominees to the U.S. District Court, it is less important for appellate court nominees such as Van Dyke. The reason is obvious. Judicial districts do not extend beyond the borders of a single state, while appeals court circuits include multiple states.

Blumenthal also said nothing about his own voting record. This year alone, he has voted against nearly three dozen district court nominees, each of whom was supported by both home state senators.

Second, Blumenthal noted that the American Bar Association rated Van Dyke “not qualified” for the Ninth Circuit. If past confirmation practice is as important as Blumenthal says, however, this would not disqualify Van Dyke. During the last four administrations, two Republican and two Democrat, 19 judicial nominees have received a “not qualified” rating from the ABA. The Senate confirmed 13 of them, nine of those without any opposition.

Blumenthal knows first hand about the Senate’s treatment of nominees with “not qualified” ABA ratings. In 2006, President George W. Bush nominated Vanessa Bryant to the U.S. District Court in Connecticut. Her ABA rating was identical to Van Dyke’s. The Connecticut Attorney General not only supported Bryant’s nomination, but criticized the ABA’s evaluating and rating process. In particular, he expressed great concern “with the credibility of anonymous sources when those sources are used as evidence for a subjective characteristics such as judicial temperament.” That AG was Richard Blumenthal.

In addition, so far in 2019, Blumenthal has voted against 40 judicial nominees who had been rated “well qualified” by the ABA. Perhaps that ABA rating just isn’t as big a deal as Blumenthal now suggests.

Third, Blumenthal claimed that, as a judge, Van Dyke would handle issues the same way he had as a lawyer in private practice or as Solicitor General of Nevada and Montana. It is common for the Left to say that judges decide cases based on their personal views and to virtually ignore the distinction between the advocate who appears before the bench and the judge who sits behind it. The oath of judicial office required by federal statute, however, requires judges to decide cases impartially and to do equal justice to every litigant — exactly the opposite of the politicized judicial process Blumenthal apparently advocates.

Law & the Courts

Appellate Confirmations Keep Humming Along

This afternoon the Senate will vote on President Trump’s nomination of Lawrence VanDyke to the Ninth Circuit. If, as expected, VanDyke’s confirmation is confirmed, VanDyke will become the seventh federal appellate nominee confirmed in the past five weeks, after Danielle Hunsaker (CA9), William Nardini (CA2), Steven Menashi (CA2), Robert Luck (CA11), Barbara Lagoa (CA11), and Patrick Bumatay (CA9) yesterday. [Update (4:50 p.m.): The Senate confirmed VanDyke by a 51-44 vote. He becomes President Trump’s 50th confirmed appellate nominee.]

For these seven nominees, the average time from the White House’s announcement of their intended nomination until Senate confirmation was 76 days (range from 68 to 92 days), and the average time from actual nomination until Senate confirmation was 50 days (range from 35 to 66 days).

Law & the Courts

This Day in Liberal Judicial Activism—December 11

(Pixabay)

2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years earlier—when it first ruled that Ohio’s existing system of financing its public-school system somehow violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.” The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.

Some six months later, the court will finally end the litigation. Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.

2009—Federal district judge Nina Gershon rules that a provision of federal appropriations law that restricts funding of the scandal-plagued ACORN organization is an unconstitutional bill of attainder. In holding that the deprivation of the opportunity to apply for discretionary federal funds “falls within the historical meaning of legislative punishment,” Gershon finds “particularly instructive” the Supreme Court’s 1946 ruling in United States v. Lovett. But Lovett involved a permanent proscription on further employment in the federal government of three federal employees, not a temporary bar on applications for federal funding by an organization. Somehow Gershon doesn’t see fit to explore carefully whether these obvious differences matter.

In August 2010, a unanimous Second Circuit panel will reverse Gershon’s ruling.

Law & the Courts

This Day in Liberal Judicial Activism—December 9

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

Law & the Courts

This Day in Liberal Judicial Activism—December 8

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

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

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

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