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.”

Law & the Courts

This Day in Liberal Judicial Activism—December 5

(Shutterstock)

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.

2018—No Catholics need apply? In written questions following his hearing, Democratic senators Kamala Harris and Mazie Hirono grill Brian C. Buescher, a nominee to a district-judge seat in Nebraska, about his membership in the Knights of Columbus, the world’s largest Catholic fraternal organization.

In response, Democratic congresswoman Tulsi Gabbard will strongly condemn Hirono and Harris for “fomenting religious bigotry.” (In July 2019, the Senate will confirm Buescher’s nomination.)

Law & the Courts

Judicial Confirmation Status and Expectations

(Carlos Jasso/Reuters)

Three months ago, when the Senate returned from the August recess, I wrote about what to expect from the judicial confirmation process for the rest of the 116th Congress. With the Senate back from the Thanksgiving recess, let’s take another look.

Persistence by the Senate leadership has paid off, with the percentage of judicial positions currently vacant declining from 12 percent to 10.5 percent. This is still substantially higher than the vacancy rate at this point under the previous five administrations. Vacancies are 34 percent higher than September 2015, when Senator Patrick Leahy (D., Vt.) said that we were “heading into a vacancy crisis.”

The federal judiciary’s administrative office designates certain vacancies as “emergencies” because they have been open so long and have a negative effect on judicial caseloads. The percentage of current vacancies in this emergency category has increased from August, and the current 56.7 percent is much higher than the previous average of 39.4 percent. These judicial emergency vacancies have been open an average of 935 days, compared to 744 days at this point under President Barack Obama.

During the final 13 months of the previous five presidents’ first term, the Judiciary Committee held an average of 15 confirmation hearings for 51 judicial nominees. And during that period, the Senate confirmed an average of 5.8 percent of the judiciary, which today would be an additional 50 judges.

The fourth year of Obama’s first term, when his own party controlled the Senate, might also be a useful guide. In 2012, the Senate confirmed 64 judges, and both hearings and confirmations continued into December.

By now, the record is well-established that Trump’s judicial nominees face, by orders of magnitude, unprecedented obstruction and opposition. Even though the liberal ABA gives Trump nominees comparable or higher ratings, for example, Democrats have forced the Senate to take a separate vote to end debate, known as a cloture vote, on 129 Trump nominees, or 75 percent of his confirmed judges. During the entire first term of the previous five presidents, the Senate took a cloture vote on an average of 1.5 percent.

Ten Democrats serving in the Senate today were here during the first three years (2001–03) of the previous Republican administration. The Senate confirmed the same number of judges in both periods. These ten Democrats – including current Minority Leader Chuck Schumer (D., N.Y.) — voted against an average of five percent of President George W. Bush’s judges, but have voted against an average of 50 percent of Trump’s judges. So this is not simply ordinary, garden-variety partisanship.

These strong confirmation headwinds are likely to continue, and perhaps even intensify. But the Senate can and should continue to make progress filling vacancies and equipping the judiciary to do its job.

Law & the Courts

Left Desperately Distorts Mitch McConnell on Scalia Vacancy

Fearful that a Supreme Court vacancy will arise in 2020, the Left is desperately distorting Senate majority leader Mitch McConnell’s decision to keep the Scalia vacancy open through the election year of 2016. And politically savvy reporters who ought to know better are somehow embracing the distortion.

Let’s run through the basics:

1. After Justice Scalia died in February 2016, three essential facts combined to drive Senate Republicans to commit to keep the resulting vacancy open through the November elections.

First and most importantly, President Obama and the Senate majority were from opposing political parties. Indeed, this was the first vacancy since Justice Thurgood Marshall’s resignation in 1991 in which a president of one party would be making a nomination to a Senate controlled by the opposing party. The confirmation battles had markedly escalated since then, and this opposite-party configuration obviously presented the greatest potential for conflict.

Second, a successful appointment to the vacancy threatened to shift the ideological makeup of the Supreme Court. It would move the Court from what had long been a 4-1-4 divide to a dominant liberal majority. This second feature, it’s important to emphasize, is intertwined with the first: It’s only in the opposite-party context that a president’s nominee to the Supreme Court would be expected to move the Court in an ideological direction that the Senate majority disfavors.

Third, the vacancy arose in a presidential-election year. It’s no coincidence that it was in this same opposite-party context in a presidential-election year, way back in 1992, that Senator Joe Biden, then chairman of the Senate Judiciary Committee, delivered a Senate floor statement in which he urged President George H.W. Bush not to make a nomination if a Supreme Court vacancy arose and threatened not to hold a hearing on any nominee until after the election. It was also in this same context—anticipating a Supreme Court nomination by a president of the opposite party in an election year—that Democratic senator Chuck Schumer, in late July 2007, publicly stated that the Senate “should not confirm another U.S. Supreme Court nominee under President [George W.] Bush ‘except in extraordinary circumstances.’”

To reiterate the overwhelming significance of the opposite-party context: Just as it’s unimaginable that Joe Biden in 1992 or Chuck Schumer in 2007 would have made their threats if a Democrat were president, it’s unimaginable that Mitch McConnell would have committed to keep the Scalia vacancy open if a Republican were president. (I’ll be amused to see who professes to be shocked by the elementary reality that the political process of Senate confirmation involves politics.)

2. Here is what Senate majority leader McConnell said at his first press conference in February 2016 after returning from the Senate recess during which Scalia died:

What’s the way forward? And as you all know, I have the view and expressed it early on that the next president should make this nomination. The — that certainly is supported by precedent. You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year.

In 1988, Justice Kennedy in early ’88 was confirmed, but that was a vacancy created six months before that to which Bork was nominated and subsequently defeated; [Douglas] Ginsburg was nominated and subsequently withdrew. The vacancy had existed for quite some time prior to the presidential election.

So the question is: Who should make the decision? And my view, and I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president the people elect in the election that’s underway right now. In fact, we’ve had three of them already in Iowa, New Hampshire and South Carolina. There’s one going on today in Nevada. The election is well underway. So, I believe the overwhelming view of the Republican Conference of the Senate, in the Senate, is that this nomination should not be filled, this vacancy should not be filled by this lame-duck president.

That was the view of Joe Biden when he was chairman of the Judiciary Committee in 1992. Chuck Schumer who I assume will be my counterpart next year had the view that you shouldn’t fill a vacancy in the last 18 months going into a presidential election year. And certainly that was Senator Reid’s view as well in a different era.

McConnell added:

We know what would happen if the shoe was on the other foot. We know what would happen. A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.

3. In short, from the outset McConnell expressly tied his position that “the next president should make this nomination” to the fact that the Senate majority was “of a different party from the president.” In context, it’s precisely because the presidency and Senate were held by members of different political parties that McConnell proposed that “the nomination should be made by the president the people elect in the [2016] election.” McConnell further made clear that he understood that Biden’s and Schumer’s threats arose, and would have been applied, in that same opposite-party context.

Thus, it is entirely consistent with his position in 2016 for McConnell to take the position now that a Republican-controlled Senate would confirm a Supreme Court nomination made by a same-party president if a vacancy arises in 2020. Again, it’s unimaginable that Joe Biden or Chuck Schumer would have made their threats against a Democratic president.

4. Let’s now look at a couple recent examples of the Left’s distortions:

The title of this New York Times article on Saturday by NYT’s veteran Washington reporter Carl Hulse asks, “Would Republicans Follow Their Garland Rule for the Court in 2020?” According to Hulse, “Let the people decide” was “the Republican mantra” on the Scalia vacancy in 2016. Ten paragraphs in, Hulse states that “Republicans say the difference between 2016 and 2020 is one of political alignment,” but he hastens to assert that “in 2016, Republicans focused most of their argument against taking up Mr. Obama’s nominee not on party control, but on the basis of the approaching presidential election.” He then warns that Republicans “would face thunderous charges of hypocrisy if they took up a nomination next year.”

Any such “thunderous charges of hypocrisy” would be badly confused. Political slogans like “Let the people decide” were distillations of the fuller position that McConnell presented, based on the predicate that the Senate majority was “of a different party from the president.” The assertion that “Republicans focused most of their argument against taking up Mr. Obama’s nominee not on party control, but on the basis of the approaching presidential election” presents a false dichotomy: McConnell’s argument was that because party control of the presidency and the Senate was divided, the nomination should be made by whoever was elected in November 2016.

Here’s how Alexander Bolton, writing in The Hill, summarizes McConnell’s position on the Scalia vacancy: “McConnell argued at the time that voters should have a chance to weigh in on the balance of the court.” Ah, yes, that really captures McConnell’s argument, doesn’t it? Bolton goes on to state that “[p]rogressive groups say McConnell should apply that same thinking if there is a vacancy between now and Election Day,” and he quotes a progressive activist’s assertion that McConnell claimed in 2016 that “the American people should have a say in the election who the next Supreme Court justice is.” He nowhere provides the context that severely limits that claim, nor does he present anyone who disputes it.

Stripping political slogans out of the context that defined their meaning produces absurdities. “Re-elect the President” was the rallying cry of Republicans in favor of Richard Nixon in 1972. Did those same Republicans somehow invite “thunderous charges of hypocrisy” when they failed to repeat the mantra “Re-elect the President” during Jimmy Carter’s re-election campaign in 1980?

5. If there is one group that is actually at risk of earning “thunderous charges of hypocrisy,” it would be the hundreds of law professors who put their names to a letter claiming that the Senate has a “constitutional duty to give President Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Their position was, to be sure, indefensible (and in some instances—e.g., Erwin Chemerinsky’s—contrary to their own previously stated positions), but so far as I’m aware, none of them other than Larry Tribe has repudiated it. So surely they would maintain that position amidst a confirmation battle in 2020, right? Right?

Law & the Courts

This Day in Liberal Judicial Activism—December 3

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 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

Judicial-Nominations Update

Today the Senate returns from Thanksgiving recess after a productive November with a busy agenda. On November 21, Senator McConnell filed cloture on eight district court nominees. That same day, the Senate Judiciary Committee reported out on a party line vote Ninth Circuit nominees Lawrence VanDyke and Patrick Bumatay, who are slated to become the 49th and 50th federal court of appeals judges appointed by President Trump. So December should begin with a good number of confirmations.

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

Current and known future vacancies:  116

Courts of Appeals:  4

District/Specialty Courts*: 112

Pending nominees for current and known future vacancies:  57

Courts of Appeals: 4

District/Specialty Courts*:  53

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
Andrew Brasher (11th) 11/21/19 11 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
Halil Suleyman “Sul” Ozerden (5th) 6/24/19 161 7/17/19

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Patrick Bumatay (9th) 10/15/19 48 11/21/2019
Lawrence VanDyke (9th) 10/15/19 48 11/21/2019

 Nominees Awaiting Floor Votes: 31

Courts of Appeals: 2

District/Specialty Courts*: 29

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 6
  • # of pending nominees originally nominated > 400 days ago: 6
  • # of pending nominees originally nominated > 300 days ago: 11

Nominees Confirmed by the Senate during the 116th Congress: 82

Supreme Court: 0

Courts of Appeals: 18

District/Specialty Courts*: 64

Nominees Confirmed by the Senate since Inauguration Day: 167

Supreme Court: 2

Courts of Appeals: 48

District/Specialty Courts*: 117

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

Law & the Courts

Overbroad Protective Order Conceals Important Evidence in Louisiana Abortion Case

In March, the Supreme Court will hear oral argument in June Medical Services v. Gee. In that case, the Court has granted both the petition of abortion providers challenging a Louisiana law on hospital admitting privileges and the state of Louisiana’s cross-petition challenging the proposition that the abortion providers have “third-party standing” to represent their patients’ interests. As the cross-petition explains, this proposition deviates from the third-party standing rules that apply to everyone else.

An opinion last week by Fifth Circuit judge Jennifer Elrod (at pp. 3-10 here) indicates that a “remarkably overbroad” protective order entered by the district judge in a related case would prevent the state of Louisiana from presenting evidence to the Supreme Court that is “directly relevant” to the question whether abortion providers adequately represent the interests of their patients. As Judge Elrod discusses, one document subject to the protective order is the deposition of plaintiff-physician Doe 2:

According to Louisiana, Doe 2 testified during his deposition that another Louisiana abortion provider, Doe 5, violates the standard of care for second-trimester abortions. Doe 2 also testified that the standard of care for second-trimester abortions is dilation and evacuation. Yet Doe 2 also testified that Doe 5 performed induction abortions through 19 weeks of gestation. Louisiana points out that Doe 2 testified that a 19-week fetus delivered intact “can show signs of the heartbeat and rudimentary movements” and that Doe 2 had personally experienced a live birth between 14 and 15 weeks. Doe 2 stated that with the labor induction method, such live births are “certainly a possibility.” A licensed physician violating the standard of care is directly relevant to whether that physician adequately represents the interests of his or her patients. That question is relevant to [Louisiana’s] challenge to third-party standing in June Med. Servs. L.L.C. v. Gee, a case involving many of these same parties, currently before the Supreme Court. Yet [Louisiana] is unable to submit this deposition to the Supreme Court in June [Med. Servs.] because of the district court’s protective order in this case. [Emphasis added; citations simplified.]

Further, that deposition may also shed important light on Doe 2’s own fitness to represent the interests of his patients:

Louisiana also argues that the same deposition may provide support for the proposition that Doe 2 committed crimes in connection with his abortion practice. According to Louisiana, in one incident, Doe 2 may have failed to report the forcible rape of a fourteen-year-old girl. Cf. La. Stat. Ann. § 14:403 (requiring mandatory reporters to report sexual abuse of a minor). In another, Louisiana proffers that Doe 2 may have knowingly performed an abortion on a minor without parental consent or judicial bypass. Cf. La. Stat. Ann. § 40:1061.14. Louisiana also contends that Doe 2 may also have failed to maintain medical records, in violation of state law. Cf. La. Stat. Ann. § 40:1061.19.

Law & the Courts

This Day in Liberal Judicial Activism—December 2

(Photo Illustration: NRO)

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

This Day in Liberal Judicial Activism—November 30

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

This Day in Liberal Judicial Activism—November 29

(Shutterstock)

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 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

The First Thanksgiving at Plymouth, by Jennie A. Brownscombe (1914) (Wikimedia Commons)

2019—Happy Thanksgiving! Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast. In the words of Washington:

Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness”:

Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.

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.”

Law & the Courts

Ruth Marcus Has Strong Opinions but Bad Facts

Supreme Court Associate Justice Brett M. Kavanaugh waits at the U.S. Capitol Rotunda on Capitol Hill on Monday, Dec. 03, 2018 in Washington, DC. (Jabin Botsford/Reuters)

Washington Post editor Ruth Marcus’s forthcoming book on the Kavanaugh confirmation has not been released to the public, but it has already come under fire in a report by Brian Flood for spreading fake news. I recently obtained a copy of Marcus’s book and can confirm that there are even more errors that have yet to be discussed, and since some of them concern me and my friends, I am in a position to correct the record.

A summary of the book by Robert Barnes suggested that Marcus’s book would seek to undermine the conservative legal movement, and especially Leonard Leo’s influence in the judicial nomination and confirmation process. Having made my way through the book, I can say that it is even more catty and obsessive about Leo than the excerpts suggest. The cattiness and obsession play out in the form of jabs at his personality, and anecdotes seemingly fabricated by sources with an ax to grind. For example, Marcus asserts that after multiple allegations were lodged against Kavanaugh, Leo started panicking and told a Senate staffer it was time to “pull the plug” on the nomination. The claim is laughable, which is why it was immediately debunked by Leo and the most senior officials involved in the process.

In the process of writing our own bestselling book on the Kavanaugh confirmation, Justice on Trial, Mollie Hemingway and I spoke to every single major official and decision-maker in the legislative and executive branches, up to and including the president. Our reporting lined up with Flood’s, showing Leo to have been one of the justice’s fiercest defenders, someone who never wavered. Marcus is fuzzy about her sourcing on the claims against Leo, but there may not have been more than one source, and that person must have been confused or driving an agenda.

So perhaps I shouldn’t have been shocked when I read Marcus making similar groundless allegations about me. She describes me as “surprisingly noncommittal” when asked on MSNBC on the day before the reopened hearings about whether Kavanaugh should be confirmed. Funny.

I encourage you to watch the interview to which she points. It focused on the Julie Swetnick allegations, which had been revealed literally immediately before I went on air, while I was waiting in the green room. Only an agenda-driven advocate would argue that I was running away from Kavanaugh.  I pointed out repeatedly that the new allegations did not yet have any corroboration and that Michael Avenatti’s pattern of releasing them via Twitter rather than to the FBI or the committee was suspect. I also described how the two previous allegations had followed a pattern of lack of corroboration and had eventually unraveled with alleged witnesses failing to remember the event at all.

This is the quote on which Marcus relies: “I think we have to look into this further. From what we know so far, we don’t have corroboration yet. If the Senate votes on this soon, I think they would have to go on what they know so far. I know the Senate Judiciary Committee is going to look into this before they would move forward to a vote.” So, while I said this brand-new allegation should be evaluated — I’ve never proposed that allegations should be reflexively dismissed — there wasn’t corroboration, and without corroboration, it shouldn’t impact the nomination.

At the time, MSNBC seized on this interview to temporarily halt JCN ads running in favor of Kavanaugh, claiming I had disavowed them. Also not true. At the time, I responded immediately with a tweet making my own and JCN’s continued support crystal clear. I clarified that the further investigation to which I had referred was the Senate looking into corroborating evidence and that I still fully supported Kavanaugh.

Despite the contemporaneous clarification that was included in the Huffington Post article Marcus cited, she suggested I was abandoning Kavanaugh — perhaps because that fit with her equally implausible narrative about Leo going wobbly.

It’s just laughably untrue. After MSNBC in the afternoon, I was on CNN again that same night defending him. I was on Fox News the next morning explaining that the Senate Judiciary Committee could take sworn testimony from the other accusers that has the same penalty as perjury and that there was no need to delay the Friday committee vote. I said the same thing on Fox again that night — that uncorroborated smears shouldn’t be allowed to delay a vote. Are those the actions of someone who is noncommittal about confirmation?

This sort of dishonest reporting is precisely why I refused to speak with her, and it might also explain why she was unable to access the most of the top officials involved in the process. Marcus is entitled to her opinions about the conservative legal movement, but she isn’t entitled to her own facts.  ​

Law & the Courts

Judge Elrod on Federal Judges and the Federalist Society

A follow-up to my two posts (Part 1 and Part 2) yesterday.

I’ve learned that Fifth Circuit judge Jennifer Elrod, who is a member of the Committee on Codes of Conduct of the Judicial Conference of the United States, recently opined publicly that the Committee’s Advisory Opinion No. 116 does not bar federal judges from taking part in Federalist Society events. Here’s what she had to say ten days ago in the course of moderating a panel on ethics at the Federalist Society’s annual convention:

As another side note, there may be an elephant in the room for some of you, wondering, “What in the world is a federal judge doing moderating a Federalist Society panel?” You may have seen some things in the newspaper about such things. I want you to know that I take ethical responsibilities very seriously, and in fact, I am privileged to be an appointee on the Judicial Codes of Conduct Committee appointed by the Chief Justice. So I have personally studied Advisory Opinion 116. And I can’t speak for others, but I can speak for myself and I believe it is entirely ethical to be engaged with lawyers and scholars leading in the field in nonpartisan fashion in the wonderful way that the Federalist Society does. So I am glad to be here. [Video at 3:25-4:22.]

Law & the Courts

Federal Judges and the Federalist Society—Part 2

The American Bar Association clearly fares much worse overall on the factors set forth in Advisory Opinion 116 than the Federalist Society does. (See Part 1 post.) Among other things:

Factor 3: The ABA engages in lobbying members of Congress. Indeed, it has a Governmental Affairs Office in D.C. that has the express purpose of “serv[ing] as the focal point for the [ABA’s] advocacy efforts before Congress, the Executive Branch and other governmental entities on diverse issues of importance to the legal profession.”

Those “diverse issues of importance to the legal profession” need have nothing to do with the interests of the legal profession itself. As I am writing this post, the items on the Governmental Affairs Office’s webpage concern commenting on “proposed special immigrant juvenile classification amendments,” “urging action on two bills to protect tribal communities from government shutdowns,” and “thanking House members for introducing the Stamp Out Elder Abuse Act.”

The ABA also rates every federal judicial nomination, sends its ratings to the Senate Judiciary Committee, and sends representatives to testify in support of those ratings.

Through its Grassroots Action Center, the ABA also tries to mobilize the public “to send messages directly to your elected officials.” E.g., “Tell Congress the Border Needs Help.”

Factor 5: The ABA frequently files amicus briefs, including in hot-button cases, in the Supreme Court and in the federal courts of appeals. (It even has a Standing Committee on Amicus Curiae Briefs.) To take just two of countless examples: the ABA’s amicus brief in the Title VII cases pending in the Supreme Court urges the Court to adopt the claim of the employees that Title VII forbids discrimination on the basis of sexual orientation or transgender status, and its amicus brief in Fisher v. University of Texas defended the constitutionality of racial preferences in college admissions.

Factor 7: The ABA “advocates for specific outcomes on legal [and] political issues.” That is clear from its amicus briefs and from its lobbying. It’s also clear from the many resolutions that the ABA routinely adopts.

Here are excerpts from the ABA Journal’s selective preview of resolutions that were to be considered at its summer meeting on “a range of significant issues including criminal justice, advance care planning, pay equity, intellectual property, sexual assault and immigration”:

Resolution 101 urges the federal government to immediately implement the First Step Act—which was adopted in 2018 to shorten some federal sentences and give federal judges more discretion to bypass mandatory minimum sentences for some offenders—by providing all necessary funding….

The Criminal Justice Section is also sponsoring Resolution 104, which calls on Congress to enact legislation that exempts the production, distribution, possession and use of marijuana from the Controlled Substances Act in order to resolve conflicts in state and federal law.

The Standing Committee on Gun Violence, along with co-sponsors the Criminal Justice Section, the Civil Rights and Social Justice Section, the Commission on Domestic and Sexual Violence and the Judicial Division, is asking jurisdictions in Resolution 105 to limit the possession of firearms in courthouses and judicial centers to courtroom security and law enforcement officers….

Resolution 115B is sponsored by the Civil Rights and Social Justice Section and urges Congress, states and territories to pass legislation that provides stronger remedies and protections against pay discrimination on the basis of sex, race and ethnicity.

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