Law & the Courts

This Day in Liberal Judicial Activism—February 12

(Kevork Djansezian)

2015—Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.

Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state marriage laws wouldn’t be accepted by the country. (Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what the American public will acquiesce in are closely linked to her view of what the Court should impose.)

Law & the Courts

New Jersey Event on Judicial Nominations

Weather allowing, EVENT CANCELED I will be speaking to the New Jersey lawyers chapter of the Federalist Society tomorrow (Tuesday) evening on the topic “Judicial Nominations and the New Congress.” The event will take place at the Morris Museum in Morristown. More information here.

Law & the Courts

This Day in Liberal Judicial Activism—February 10

(Photo: Lucian Milasan/Dreamstime)

1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

Law & the Courts

This Day in Liberal Judicial Activism—February 9

(Stephen Lam/REUTERS)

2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson—issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.”

Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”

In May 2011, by a 5-4 vote (in Brown v. Plata), the Supreme Court will affirm the district court’s judgment.

In the aftermath of the Court’s ruling, the district court will repeatedly be forced to extend its deadline for compliance with its ruling. Only in March 2016—nearly five years after the Court’s ruling—will the district court determine that California is in compliance. Even then, the district court will retain control over the matter and require California to submit monthly reports.

Law & the Courts

Observations on the Supreme Court’s Order Blocking Louisiana’s Abortion Law—Part 2

A few additional observations (numbered serially from my Part 1 post):

4. The Louisiana law that the Supreme Court has temporarily blocked from going into effect would require abortion providers to have admitting privileges at a hospital located within thirty miles of the clinic where they do abortions. In the grand scheme of things, laws like this ought to be of third-order importance at best. (Indeed, both the Fifth Circuit’s opinion below and Louisiana’s argument in favor of the law being allowed to go into effect turned on how little impact the law was likely to have on the provision of abortion.) Instead, Louisiana ought to be able to enact and enforce a general ban on abortion, subject to the limited exceptions it sees fit to adopt. But, of course, the illegitimate Roe/Casey regime continues to make that impossible.

5. There is no obvious “best path” to overturning Roe and to restoring abortion policy to the democratic processes. Nor, much as he might wish otherwise, does the Chief Justice have much control over which cases will be teed up for the Court’s consideration. In particular, the fact that it takes only four justices to grant certiorari means that the four liberals can force the Court to review opinions they don’t like. And ditto for the Chief’s four conservative colleagues.

6. Pending before the Court for action is the state of Indiana’s certiorari petition (which I discussed in this post) that presents the questions (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus. I hope very much that the Court grants review on both questions.

Law & the Courts

Observations on the Supreme Court’s Order Blocking Louisiana’s Abortion Law—Part 1

Last night, by a vote of 5 to 4 (in June Medical Services v. Gee), the Supreme Court granted the request of abortion providers to block a Louisiana law from taking effect until the Court acts on their intended petition for certiorari seeking review of the Fifth Circuit decision below. Chief Justice Roberts joined the four liberal justices in granting the stay. Justice Kavanaugh wrote a brief dissent setting forth the very narrow grounds on which he voted to deny the request. Justice Thomas, Justice Alito, and Justice Gorsuch dissented without further explanation (as is common on such requests).

Much as I was hoping that the Supreme Court would deny the abortion providers’ request, I think that those who discern grand significance in yesterday’s order are reading the tea leaves with far too much assurance. In this post, I will offer some observations on the actions of the Chief Justice and Justice Kavanaugh. I will offer some broader observations in a second post.

1. I see several possible (and overlapping) explanations for why the Chief Justice voted as he did.

First, it is eminently plausible that the Chief genuinely concluded that the abortion providers had satisfied the three-part test for granting a stay pending filing of a certiorari petition. The first part of that test is that there must be a reasonable probability that four members of the Court would vote to grant certiorari. It’s safe to assume that his four liberal colleagues made clear that they would vote to grant cert. The second element is that there must be a “significant possibility” that the lower court’s decision would be reversed. Although I’ve explained why I think that this element wasn’t satisfied, the standard is so indeterminate that there’s plenty of room for someone to conclude otherwise. The third element is a likelihood of “irreparable harm” if the decision is not stayed. The parties’ competing claims about the likely effect of the Louisiana law also allow reasonable room for disagreement on whether this element is satisfied. (Given existing precedent, the state did not argue that making abortion more difficult to obtain did not qualify as a cognizable harm.)

Second, knowing that his four liberal colleagues would provide the votes needed to grant certiorari in the case, the Chief might well have figured that preserving the case in the procedural posture of a facial challenge to Louisiana’s law was sensible. Among other things, that posture offers the best opportunity for the Court to establish clearly that in a facial challenge to abortion laws, the plaintiff bears the usual burden of establishing that no set of facts exists under which the challenged law would be valid. That would be an important advance. (I discuss this facial-challenge issue more extensively in this essay.) By contrast, if the Louisiana law were to go into effect, the abortion providers’ challenge to it could easily morph into an as-applied challenge.

Third, the Chief might hope that by accommodating the liberal justices on process, he will build good will that will give him more leeway to set things right. Or, to modify the point somewhat, he might hope that his vote enhances the perceived legitimacy of the Court. For what it’s worth, I think that concerns about perceived legitimacy involve impossible calculations and too readily collapse into trying to satisfy the New York Times editorial board.

2. I don’t think that the Chief’s vote signals anything about how he will rule on the merits of the case. I would be very surprised if he regards the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt (from which he dissented) as sound precedent. Nor should he. (Note, as one point of comparison, that the liberal justices haven’t regarded Citizens United v. FEC as binding precedent.)

3. In his three-page dissent, Justice Kavanaugh explains that “the status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period” and that he would therefore “deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction” at the end of that transition period. Kavanaugh notes that all parties “agree that Whole Woman’s Health is the governing precedent for purposes of this stay application” and proceeds to apply that precedent.

Amazingly, on the basis of this very narrow opinion, some folks on the Left are making frantic charges that Kavanaugh “has declared war on Roe,” and they are trying to beat up Senator Susan Collins for voting for his confirmation. (To be clear: My own expectations for Kavanaugh are very different from those that Senator Collins has voiced. His dissent yesterday, though, does not speak meaningfully to the question of whose expectations will be vindicated.)

Law & the Courts

This Day in Liberal Judicial Activism—February 8

Judge Brett Kavanaugh

2016—By a vote of six to four (in Wesby v. District of Columbia), the D.C. Circuit denies en banc rehearing of a rogue panel decision authored by Judge Cornelia Pillard. As Judge Brett Kavanaugh objects in his lengthy dissent from the denial, the panel ruling subjects two police officers to liability for nearly one million dollars for “arresting for trespassing a group of people who were partying late at night with drugs and strippers in a vacant house that the partiers did not own or rent.” Kavanaugh argues both that the police officers had probable cause to make the arrests and that the panel’s holding that they were not entitled to qualified immunity “contravenes … emphatic Supreme Court directives.”

Nearly two years later, without any dissent, the Supreme Court will embrace Kavanaugh’s positions and reverse the panel ruling.

Law & the Courts

The Battle for Judicial Confirmations Commences

The judicial confirmation train has left the station.

The Senate Judiciary Committee today reported 44 judicial nominees to the full Senate, as well Bill Barr’s nomination for attorney general.

It’s the first batch of judicial nominations to advance under the chairmanship of Sen. Lindsey Graham (R., S.C.).

That’s the good news. But it’s not as encouraging as it might sound.

First, all of the judicial nominees are actually re-nominees. During the 115th Congress, President Trump made more nominations than any of his predecessors had. But the Senate confirmed a historically smaller percentage of them. As a result, a record 69 judicial nominations expired without final Senate action and were returned to the president.

With a new Congress in town, Trump renominated 54 nominees who had been left hanging last year. All those approved by the committee today were in that batch. Each had a hearing last year, and 18 had already been approved by the Judiciary Committee.

Now they are before the full Senate, ready to be confirmed. Unfortunately, we can expect the Democrats’ obstruction tactics to continue.

Those tactics have been destructively effective. They have left more than 16 percent of the federal judiciary vacant. Vacancies are now nearly 30 percent higher than when Trump took office. We remain mired in the longest period of triple-digit judicial vacancies in 25 years.

Yet some Democrats seem determined to deploy new obstructionist tactics. Senate rules prohibit committees from meeting longer than two hours after the full Senate comes into session. That rule is routinely waived by unanimous consent, but today Democrats objected to waiving it. That meant that, since the Senate began at noon, the Judiciary Committee’s business meeting would have to stop at 2 p.m.

Democratic senators tried to make the meeting last that long. They indulged in seemingly endless speechifying and forced the committee to take separate roll-call votes on more than three dozen nominations. Thankfully, enough members remained to maintain a quorum, and Chairman Graham kept the votes humming so the committee could report the full roster of nominees.

There was a disturbing pattern to the voting, however. More than a dozen nominees to the U.S. District Court were approved by a party-line vote. Senator Patrick Leahy (D., Vt.), who chaired the committee under Presidents George W. Bush and Barack Obama, once criticized Republicans for this practice.

District-court nominees always have the support of their home-state senators and nearly always have strong bipartisan support. The meeting today signaled that indiscriminate, unprecedented opposition will continue for even the least controversial Trump nominees.

In addition to these re-nominations, Trump started making new nominations on January 17, and the Judiciary Committee’s hearing schedule can’t start soon enough.

Judge Ho’s Excellent Opinion on Title VII, Sexual Orientation, and Gender Identity—Part 2

Judge Ho’s excellent account of the proper meaning of Title VII came in his separate opinion concurring in his own unanimous panel opinion in Wittmer v. Phillips 66 Co. In that panel opinion, Judge Ho ruled that, on an employee’s claim of discrimination on the basis of transgender status, the district court had correctly granted summary judgment for the employer (on the ground that the employee had failed to present sufficient evidence of discrimination to get the matter to a jury). On the district court’s threshold assumption that Title VII prohibits discrimination on the basis of transgender status, Judge Ho faulted the district court for ignoring binding Fifth Circuit precedent from 1979 that held that Title VII does not bar discrimination on the basis of sexual orientation.

Judge Ho’s determination for the panel that the district court’s grant of summary judgment should be affirmed means, of course, that the analysis in his concurring opinion about the proper meaning of Title VII was not necessary to the disposition of the case. Ho has already received some criticism for penning that concurring opinion, so I figured that I would briefly address the thorny question of whether and when it is proper for a judge (or justice) to opine on matters that are not necessary to the decision of a case.

I don’t think that this is an easy question to answer, and I have only some tentative thoughts to offer:

1. A test of necessity is unattractive. If, for example, a district judge determines that a party should lose for four separate reasons, it is unnecessary to address three of the reasons. But addressing all four together tees things up for the appellate court to resolve the whole matter.

2. Writing beyond what is necessary is routine. Indeed, the quality of unnecessariness would seem to inhere in every properly denominated concurring opinion (as distinct from opinions concurring in the judgment). Any judge or justice who joins a majority opinion and chooses to write a separate concurring opinion is acknowledging that the concurring opinion is not necessary.

3. Writing beyond what is necessary often provides useful guidance. That, to take just one of countless possible examples, is presumably why Justice Kagan, joined by her three liberal colleagues, wrote a concurring opinion in Gill v. Whitford last year spelling out her view of how plaintiffs asserting a partisan gerrymandering claim could establish standing.

More generally, there are lots of tricky legal puzzles. The more that judges provide intelligent assessments of how those puzzles should be solved, the more likely it is that they will be solved correctly.

4. Writing a majority opinion that goes beyond what is necessary is, all other things being equal, more problematic than writing a concurring or dissenting opinion that does so, as dicta in a majority opinion might well be mistaken for part of the court’s holding.

5. Everyone’s reaction (yes, including my own) to a particular instance of an unnecessary opinion is likely to be shaped by one’s assessment of the substantive merits of that opinion. That’s entirely sensible, for if one of the strongest arguments in favor of such opinions is that they can provide valuable guidance, the extent to which they actually do so matters considerably.

It’s on the basis of this last point that I’m especially glad that Judge Ho wrote his concurring opinion.

Law & the Courts

Orthodox Jews Protest Against Anti-Religious Bigotry in Judicial-Confirmation Process

In response to recent episodes of anti-Catholic bigotry on the part of Democratic senators on the Senate Judiciary Committee, the Union of Orthodox Jewish Congregations of America has sent this letter to committee chairman Lindsey Graham and ranking member Dianne (“The dogma lives loudly within you”) Feinstein. An excerpt:

We write to you to express our grave concern with recent incidents of apparent religious intolerance in the proceedings of the Judiciary Committee.

Much to our surprise, in the course of the Committee’s consideration of some judicial nominees over the past year, some Senators on the Committee have suggested through their questioning that a nominee’s religious faith or membership in a religious organization disqualified the nominee.

This line of questioning amounts to a religious test for office – something which, as you know, is explicitly prohibited by Article VI of the U.S. Constitution.

While this objectionable line of questioning has, most recently, been put to nominees who are Catholic, we – especially as members of a minority faith community – must convey our alarm; for we know that intolerance applied to one faith community endangers the religious liberty of all faith communities.

Law & the Courts

Judge Ho’s Excellent Opinion on Title VII, Sexual Orientation, and Gender Identity—Part 1

In a concurring opinion yesterday in Wittmer v. Phillips 66 Co. (see pp. 9-22), Fifth Circuit judge James C. Ho provided a clear, crisp, and compelling explanation of why Title VII’s ban on discrimination on the basis of “sex” should not be read to ban discrimination on the basis of sexual orientation or gender identity. In this post, I will present Judge Ho’s opinion. In a second post, I will address the question when it is proper for a judge (or justice) to opine on a matter that is not necessary to the decision of a case.

Judge Ho begins by presenting the “two competing schools of thought” on what Title VII’s ban on “discriminat[ion] because of sex” means. Under the anti-favoritism theory, Title VII “prohibits employers from favoring men over women, or vice versa.” Under the blindness theory, employers must be “entirely blind to a person’s sex.” Separate bathrooms by sex are permitted under the anti-favoritism theory but not under the blindness theory.

Here are substantial excerpts (citations omitted; paragraph breaks altered) from the remainder of Ho’s opinion:

Although judges in other circuits are divided over their interpretation of Title VII, they are united as to the original public meaning of Title VII. No one seriously contends that, at the time of enactment, the public meaning and understanding of Title VII included sexual orientation or transgender discrimination. To the contrary, there is a judicial consensus that the public meaning of Title VII in 1964 did not include sexual orientation or transgender discrimination.

This consensus about the original understanding of Title VII is further bolstered by four decades of case law. During that time, every federal circuit to address the issue—including the First through Eleventh Circuits—rejected attempts to construe Title VII to prohibit discrimination on the basis of either sexual orientation or transgender status….

The traditional understanding of Title VII is further bolstered by other established principles of statutory interpretation. As the Supreme Court has repeatedly observed, Congress “does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” The Court typically invokes the “elephants” canon when it is asked to construe an ambiguous statute to reach a matter of great policy consequence….

The elephants canon easily applies here. No one could seriously dispute the importance of the issues presented in this case, as reflected by the amicus and en banc attention these issues have attracted in other circuits. What’s more, this case is about more than sexual orientation or transgender discrimination. If we accept the blindness theory of Title VII, what else are employers prohibited from doing? As I noted earlier, employers would also be forbidden from maintaining separate bathrooms and changing rooms for men and women—even though the purpose of separate bathrooms and changing rooms is not favoritism toward either sex, but respect for the privacy of employees and customers of both sexes….

So this case does not simply concern sexual orientation and transgender discrimination. It affects every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym. What’s more, because federal statutes governing educational institutions employ language indistinguishable from Title VII, this debate also affects virtually every school, college, dormitory, athletic activity, and locker room in America….

The traditional interpretation of Title VII is also the only reading that comports with common usage. When construing statutes, courts presume that lawmakers use words in light of their natural and ordinary meaning, rather than resort to more cryptic formulations. If Congress had meant to prohibit sexual orientation or transgender discrimination, surely the most straightforward way to do so would have been to say so—to add “sexual orientation” or “transgender status” or “gender identity” to the list of classifications protected under Title VII. It would defy common sense to imagine that lawmakers labored to assemble a majority coalition to eradicate sexual orientation and transgender discrimination from the workplace—only to select the most oblique formulation they could think of (“because of sex”) and then hope for the best that courts would understand what they meant.

Opponents of the traditional approach to Title VII nevertheless contend that their position is compelled by the Supreme Court’s decision in Price Waterhouse v. Hopkins (1989)…. But here’s the problem with this theory: Price Waterhouse doesn’t make sex stereotyping per se unlawful under Title VII. To the contrary, under Price Waterhouse, sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other.

Law & the Courts

This Day in Liberal Judicial Activism—February 7

Senate Minority Leader Chuck Schumer (Reuters photo: Yuri Gripas)

2017—In his desperate effort to obstruct the Supreme Court nomination of Neil Gorsuch, Senate minority leader Chuck Schumer continues to propagate the myth that a 60-vote standard exists for Supreme Court nominees. Never mind that even the Washington Post’s Fact Checker has explained that no such standard exists.

Meanwhile, Democratic senator Jeanne Shaheen declares on the Senate floor that neither she nor any of her fellow Democrats she’s talked to have any intention of filibustering the Gorsuch nomination.

Two months later, Shaheen and 43 of her fellow Democrats will vote to filibuster the Gorsuch nomination. But the Schumer-led gambit will backfire spectacularly, as Senate Republicans, following the precedent Democratic leader Harry Reid set in November 2013 on lower-court judicial nominations and executive-branch nominations, will proceed to abolish the filibuster for Supreme Court nominations.

Law & the Courts

Supreme Court Should Deny Stay Request in Louisiana Abortion Case

Defenders of the Supreme Court’s illegitimate Roe/Casey regime are thundering over the prospect that the Court might deny an “emergency application” in which abortion providers seek to block a Louisiana law from taking effect. But that is exactly what the Court should do.

Last September, a divided panel of the Fifth Circuit, in June Medical Services v. Gee, ruled that a Louisiana law that requires abortion providers to have admitting privileges at a hospital located within thirty miles of the clinic where they do abortions complies with the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt (“WWH”). Specifically, the majority (written by Judge Jerry Smith and joined by Judge Edith Clement) determined that “the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH” and that the Louisiana law “does not impose a substantial burden on a large fraction of women under WWH and other controlling Supreme Court authority.” Judge Patrick Higginbotham dissented.

When the abortion providers sought en banc review, the Fifth Circuit denied their request by a vote of nine to six.

In order to grant the stay request, the Supreme Court would need to determine (among other things) that there is “a significant possibility of reversal of the lower court’s decision.” The state’s brief in opposition explains why there is no such possibility even if the Court were to adhere to WWF.

But there is no reason for the Court, in the context of this stay request, to get into the weeds of the competing views of Fifth Circuit judges over how WWH applies to the Louisiana law. The justices, unlike the Fifth Circuit judges, are not required to regard WWH as sound precedent. Nor should they.

WWH, issued months after Justice Scalia’s death, was decided by a 5-3 margin. In his dissent (joined by the Chief Justice and Justice Thomas), Justice Alito vigorously disagreed that, under the Court’s precedents governing facial challenges to state abortion laws, the Texas law imposed an “undue burden” on women seeking abortion. (See dissent at pp. 24-37.) He further disputed that the abortion providers would, in any event, be entitled to a statewide injunction against the law. (See dissent at 37-43.)

For the reasons they embraced in dissent in WWH, and without needing to address at this point the broader illegitimacy of the Roe/Casey regime, the Chief Justice, Justice Thomas, and Justice Alito should not regard WWH as precedent that they should adopt and apply. If Justice Gorsuch and Justice Kavanaugh reach the same position—as they should—that would mean that five justices regard WWH as unsound and unworthy of being extended to another state’s law. The positions of those five justices would mean that there is no significant possibility that the Fifth Circuit would be reversed.

(There are additional reasons the Court should deny the stay application, as the state’s brief in opposition spells out.)

Law & the Courts

This Day in Liberal Judicial Activism—February 6

H. Lee Sarokin

1992—Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case. The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality. Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994. The ABA gives Sarokin its highest “well qualified” rating. Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

Law & the Courts

This Day in Liberal Judicial Activism—February 5

(Win McNamee/Pool/Reuters)

1996—In a muddled speech on the “majesty of the law” at Suffolk University law school, then-district judge Sonia Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law”—indefiniteness that sometimes results from the fact that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for judges to “develop a novel approach” that “pushes the law in a new direction.” Instead, she complains about “recurring public criticism about the judicial process.” The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of [the] liberal ideology of Clinton judicial appointments and [of the] American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges.

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