Law & the Courts

This Day in Liberal Judicial Activism—November 23

1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.” To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy: as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”

Never mind that the supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.” (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).

A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.” He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”

Law & the Courts

This Day in Liberal Judicial Activism—November 22

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

2006—It’s monkey business as usual at the Ninth Circuit. A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable. Judge Kozinski concludes his thorough dissent with this summary:

“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”

2018—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.

Law & the Courts

More Judicial Grandstanding

In an order yesterday (in Jackson Women’s Health Organization v. Currier), federal district judge Carlton W. Reeves entered a permanent injunction against a Mississippi law that prohibits abortions after 15 weeks of gestation. Reeves’s bottom-line ruling strikes me as a straightforward application of the Supreme Court’s existing (but deeply unsound) abortion regime, and I therefore do not take issue with it.

But Reeves’s opinion is flawed in two respects. First, he could not refrain from littering his opinion with various injudicious remarks. He contends, for example, that the Mississippi legislature’s professed interest in women’s health “is pure gaslighting” and that the law he is reviewing “is closer to the old Mississippi—the Mississippi bent on controlling women and minorities.” He similarly opines that “[t]he fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court.” And further:

As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion. Respecting her autonomy demands that this statute be enjoined.

Reeves’s views are half-baked at best. Reeves seems not to have contemplated that many women in Mississippi supported the law that he enjoined, or that the legality of abortion is a matter susceptible to moral reasoning by men and women, or that a permissive abortion regime might well multiply the instances in which a woman experiences the “anxiety and turmoil” that he rightly deplores.

There are of course plenty of reasonable replies to these objections of mine. My limited point here is that Reeves marred and discredited his own ruling by his gratuitous editorializing.

The second defect in Reeves’s opinion is his sloppy conflation of the Constitution with Supreme Court decisions. Reeves asks at the outset whether the law “infringe[s] on the Fourteenth Amendment due process rights of women,” and he answers, “It does, unequivocally.” But the proposition that the law is “unequivocally” inconsistent with the Roe/Casey regime is very different from the proposition that it is “unequivocally” inconsistent with the Due Process Clause. It’s fine for Reeves, as a lower-court judge, to confine himself to the former question, but he shouldn’t confuse it with the latter.

Similarly, Reeves asserts that he “follows the commands of the Supreme Court and the dictates of the United States Constitution.” He thus obscures the reality that he will follow the “commands of the Supreme Court” whether or not those commands are faithful to the “dictates of the United States Constitution.”

Or at least Reeves will follow the Supreme Court’s commands when those commands lead to results he favors. Reeves, appointed by President Obama in 2010, was happy to get ahead of the Supreme Court when he ruled in 2014—in advance of the Court’s 2015 ruling in Obergefell v. Hodges (and contrary to the Court’s precedent in Baker v. Nelson)—that Mississippi’s definition of marriage violated the federal Constitution. And he didn’t pay much attention to the Court’s commands on standing when he ruled in 2016 that a Mississippi law protecting religious liberty was unconstitutional. (A Fifth Circuit panel reversed him a year later on the ground that the plaintiffs lacked standing.)

Law & the Courts

This Day in Liberal Judicial Activism—November 21

(Photo Illustration: NRO)

2013—By a 52-48 vote (with all Republicans and three Democrats voting no), the Senate abolishes the filibuster—the 60-vote cloture threshold—for lower-court and executive-branch nominees. The immediate effect of the abolition is to enable the confirmation of three D.C. Circuit nominees.

More broadly, Senate Democrats succeed in proving that they can dish it out but can’t take it. A decade earlier, now-Senate majority leader Harry Reid and other leading Democrats launched their unprecedented campaign of partisan filibusters against President George W. Bush’s judicial nominees, and they bitterly (and successfully) resisted Republican efforts in 2005 to abolish the filibuster. Reid, for example, voted against cloture at least 25 times on 13 different Bush nominees, but he is outraged that Republicans defeated a grand total of seven cloture motions on President Obama’s nominees.

Law & the Courts

Judicial Nominations Update

Last week Senate Majority Leader Mitch McConnell filed motions to invoke cloture (end debate) on two judicial nominations (including that of Jonathan Kobes, President Trump’s nominee to the Eighth Circuit).  This will set up a confirmation vote for Kobes sometime the week of November 26th after the Senate returns from its Thanksgiving recess.

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

Current and known future vacancies:  158

Courts of Appeals:  15

District/Specialty Courts*: 143

Pending nominees for current and known future vacancies:  73

Courts of Appeals:  13

District/Specialty Courts*:  60

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Joseph Bianco (2nd) 11/13/2018 6 No Not yet scheduled
Michael Park (2nd) 11/13/2018 6 No Not yet scheduled
Patrick Bumatay (9th) 11/13/2018 6 No Not yet scheduled
Dan Collins (9th) 11/13/2018 6 No Not yet scheduled
Ken Lee (9th) 11/13/2018 6 No Not yet scheduled
Neomi Rao (DC) 11/14/2018 5 N/A Not yet scheduled

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Eric Murphy (6th) 6/18/2018 154 10/10/2018
Chad Readler (6th) 6/18/2018 154 10/10/2018
Eric Miller (9th) 7/19/2018 123 10/24/2018
Bridget Shelton Bade (9th) 8/27/2018 84 10/24/2018
Allison Jones Rushing (4th) 8/27/2018 84 10/17/2018
Paul Matey (3rd) 4/12/2018 221 11/14/2018

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Jonathan Kobes (8th) 6/11/2018 161 10/11/2018

 Nominees Awaiting Floor Votes: 34

Courts of Appeals:  1

District/Specialty Courts:  33

Nominees Confirmed by the Senate: 84

Supreme Court: 2

Courts of Appeals: 29

District/Specialty Courts:  53

Law & the Courts

‘The Virtues of Judicial Self-Restraint’

That’s the title of this long and insightful essay by William J. Haun in the current issue of National Affairs, the outstanding quarterly journal founded and edited by my Ethics and Public Policy Center colleague Yuval Levin. Here’s an excerpt:

Originalism cannot give a full account of the Constitution without protecting both individual liberty and the liberty to make laws, nor can it combat the judicial supremacy that the founding generation plainly did not desire. It is therefore critical for conservatism — a project also committed to constitutional conservation — to appreciate the need for harmony between judicial self-restraint and originalism. An originalism (and more broadly, a conservatism) that myopically focuses on vindicating a theory of individual liberty misses the role of the people in addressing unforeseen changes, the different values beyond individual liberty that give life to a community, and the key insight that only the people — not the courts — can save self-government.

At this moment in American history, with conservative successes in judicial nominations and with some on the political left abandoning self-government, one can understand the temptation to view the judiciary as a better steward of the founding than the people. But early legal conservatives knew better. Their wisdom is confirmed by their understanding of the virtues of judicial self-restraint. Conservatives and originalists today would be wise to recall those virtues.

Law & the Courts

This Day in Liberal Judicial Activism—November 18

(Chip East/Reuters)

2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution. The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.

Law & the Courts

This Day in Liberal Judicial Activism—November 17

(Jonathan Ernst/Reuters)

2014—For the second month in a row, the Supreme Court (in Frost v. Van Boening) summarily and unanimously reverses an opinion authored by Ninth Circuit judge Sidney Thomas. Thomas, a native of Montana, was trotted out in 2010 as a supposed moderate candidate for the Supreme Court vacancy that Elena Kagan ended up filling, but he keeps showing that he’s really just Stephen Reinhardt dressed up in a cowboy hat.

2016—In an American Bar Association panel discussion, former Obama White House counsel Kathryn Ruemmler candidly acknowledges that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the vacancy arising from Justice Scalia’s death.

Ruemmler’s remark shows that she (sensibly) rejects the “silly” and “obviously fatuous” claim by Erwin Chemerinsky, Larry Tribe, and some other law professors that the Senate had a constitutional duty to hold a hearing and vote on President Obama’s nomination of Merrick Garland. But neither her statement nor the obvious lack of merit of the constitutional claim will deter some from continuing to peddle it.

Law & the Courts

Justice Thomas vs. Justice Breyer on the Death Penalty

Justice Breyer’s statement on Tuesday regarding the denial of certiorari in a death-penalty case (Reynolds v. Florida) elicited a noteworthy response from Justice Thomas.

In his statement, Justice Breyer repeated several concerns that he has expressed before. I’ll highlight three of them here: (1) that “lengthy delays—made inevitable by the Constitution’s procedural protections for defendants facing execution—deepen the cruelty of the death penalty and undermine its penological rationale”; (2) that the jurors (in this or other cases in which the Court has recently denied review) might not have had sufficient information to “have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’”; and (3) that the constitutionality of the death penalty should be reconsidered.

Here is what Justice Thomas had to say in response (some citations and quotations marks omitted):

[1] Justice Breyer’s first concern is “that the death penalty might not be administered for another 40 years or more” after the jury’s verdict. That is a reason to carry out the death penalty sooner, not to decline to impose it. In any event, petitioner evidently is not bothered by delay. Petitioner has litigated all the way through the state courts and petitioned this Court for review three separate times. He can avoid “endur[ing]” an “unconscionably long dela[y]” [Breyer’s words] by submitting to what the people of Florida have deemed him to deserve: execution. It makes a mockery of our system of justice for a convicted murderer, who, through his own interminable efforts of delay has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.

It is no mystery why it often takes decades to execute a convicted murderer. The labyrinthine restrictions on capital punishment promulgated by this Court have caused the delays that Justice Breyer now bemoans. As “the Drum Major in this parade” of new precedents [quoting Justice Scalia in Glossip v. Gross], Justice Breyer is not well positioned to complain about their inevitable consequences.

[2] On the night of July 21, 1998, petitioner Michael Gordon Reynolds murdered nearly an entire family. While the father, Danny Ray Privett, relieved himself outside the family’s camping trailer, petitioner snuck up behind him and “viciously and deliberately battered [his] skull with a piece of concrete.” Petitioner would later explain: “‘[W]ith my record’”—which included aggravated robbery, aggravated assault, and aggravated battery—“‘I couldn’t afford to leave any witnesses.’” So petitioner entered the trailer, where he brutally beat, stabbed, and murdered Privett’s girlfriend, Robin Razor, and their 11-year-old daughter, Christina Razor. Robin “suffered multiple stab wounds along with multiple blows to the side of her face and a broken neck resulting in injuries to her spinal cord.” She desperately fought back, suffering “significant defensive wounds” and “torment wounds”—shallow slashes that occur when “the perpetrator tak[es] a depraved, measured approach to the infliction of the injury and tak[es] pleasure in his cruel activity.” Eleven-year-old Christina also resisted, suffering “blunt force trauma to her head, a stab wound to the base of her neck that pierced her heart, and another stab wound to her right shoulder that pierced her lung and lacerated her pulmonary artery.” Only petitioner knows whether Robin had to watch her daughter die, or whether Christina had to watch her mother die. “Regardless, in the close confines of that cramped camping trailer, Christina Razor, in great pain and fear, was forced to fight a losing battle for her life knowing that either her mother had already been killed and she was next or that after Reynolds killed her, he was sure to end her mother’s life.” “For a child to experience the fear, terror and emotional strain that accompanied Christina Razor as she fought for her life, knowing full well that she was fighting a losing battle, is unimaginable, heinous, atrocious and cruel.” “Christina was found not wearing any underwear,” and petitioner’s DNA was matched to both a pubic hair and Christina’s underwear, both found near her body….

Justice Breyer worries that the jurors here “might not have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’ had they known” of his concerns with the death penalty. In light of petitioner’s actions, I have no such worry, and I write separately to alleviate Justice Breyer’s concerns.

[3] Justice Breyer final (and actual) concern is with the death penalty itself. As I have elsewhere explained, it is clear that the Eighth Amendment does not prohibit the death penalty. The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.

Law & the Courts

This Day in Liberal Judicial Activism—November 16

(Kuzma/Dreamstime)

1993—In Steffan v. Perry, a trifecta of Carter appointees on theD.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct. Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).

2009—In a unanimous per curiam opinion in Wong v. Belmontes, the Supreme Court summarily reverses the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez. In dissent was Judge Diarmuid O’Scannlain. That’s the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court).

Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

2017—In a divided panel ruling (in United States v. United States District Court), the Ninth Circuit denies the federal government’s request to block an order of the district court that requires it to provide a broad array of documents relating to its decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. The majority opinion is co-authored by Judge Kim McLane Wardlaw and Judge Ronald M. Gould (each appointed by President Clinton).

In dissent, Judge Paul J. Watford (appointed by President Obama) objects that the district court’s order improperly “sweeps far beyond materials related to the sole reason given for rescinding DACA” and includes “materials [that] are deliberative in character,” possibly including communications with “high-level officials in the White House,” and thus raises “sensitive separation-of-powers concerns” that justify granting the government’s request.

One month later, a unanimous Supreme Court will vacate the Ninth Circuit’s order and will direct the district court that it “may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.”

Law & the Courts

On Lame-Duck Judicial Confirmations

Senate Majority Leader Mitch McConnell (R, Ky.) (Mike Theiler/Reuters)

Rumors swirl that the Senate, originally set to adjourn on December 14, may pack it up a week earlier. Since Majority Leader Mitch McConnell (R., Ky.) said after the election that confirming judges would be his “top priority” for the rest of the 115th Congress, let’s take stock.

We are in the longest period of triple-digit judicial vacancies since the early 1990s, when Congress created 85 new judicial positions. More than half of the current vacancies are designated “judicial emergencies” because the positions have been open so long that they’re worsening judicial caseloads.

Vacancies today are 13 percent higher than when President Trump took office; four of the last five presidents had reduced vacancies by an average of 19 percent at this point.

The Senate has so far confirmed 84 judges in the 115th Congress; the average for presidents Ronald Reagan through Barack Obama at this point was 81. As a percentage of the president’s nominees, however, the current confirmation rate of 55 percent lags behind the past average of 74 percent.

Since Congress expands the judiciary now and then, it’s useful to consider confirmation totals as a percentage of judicial positions. By this measure, the 115th Congress ranks 46th among the 58 congresses since the turn of the 20th century.

That helps put in perspective where we are today, so let’s turn to the opportunity that still remains in the 115th Congress. Trump has been making nominations, and the Judiciary Committee has been holding confirmation hearings, at a much faster clip than in the past.

As a result, 32 judicial nominees, some of whom were first nominated more than a year ago, are ready today for a final Senate vote. That’s only a few more than the 27 Obama nominees confirmed by the Democrat-led Senate after the 2014 midterm election.

A total of 116 judges for the 115th Congress sounds solid but, at 75 percent of Trump’s nominees, would still be less than under three of the last five presidents. And it would raise the 115th Congress’ rank from 46 to 31, still in the bottom half of Congresses since 1900.

In 2013, Democrats gave away the filibuster, the only sure-fire weapon for preventing confirmation of Trump judicial nominees. While they have been employing other tactics to make the confirmation process less efficient, a determined Senate majority can still make the 115th Congress a victory for an independent, impartial judiciary.

Law & the Courts

This Day in Liberal Judicial Activism—November 15

(Shutterstock)

2012—By Any Means Necessary, indeed. That phrase—a shorthand for the very long name of the group challenging Michigan’s Proposal 2—aptly describes the modus operandi of the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the University of Michigan.

Proposal 2 is the state constitutional amendment that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” By an 8 to 7 vote, the Sixth Circuit rules that Proposal 2’s guarantee of equal treatment violates the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, calls an “extreme extension” of two Supreme Court rulings, the majority holds that the embedding of the nondiscrimination rule in the state constitution somehow violates the “political-process doctrine.”

In April 2014, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will reverse the Sixth Circuit by a 6-2 vote.

2015—In Adkins v. City of New York, federal district judge Jed S. Rakoff rules that “transgender people are a so-called ‘quasi-suspect class’” and that governmental treatment of people who identify as transgender must be subject to “intermediate” judicial scrutiny.

Under Rakoff’s approach, he and other federal judges, in the supposed name of the Constitution, would be deciding such matters as whether boys who think they’re girls must be allowed to use the girls’ restrooms, locker rooms, and showers in public schools.

Law & the Courts

OLC Opinion on Legality of Designation of Matthew Whitaker as Acting Attorney General

In an opinion issued today, the Department of Justice’s Office of Legal Counsel concludes that the “constitutionality of [Matthew] Whitaker’s designation as Acting Attorney General is supported by Supreme Court precedent, by acts of Congress passed in three different centuries, and by countless examples of executive practice.”

Having authored a 2003 OLC opinion that today’s opinion cites with approval, I recognize that my assessment of the strength of today’s opinion might be taken as biased. So I will instead simply summarize the major arguments of the Appointments Clause portion of the opinion and invite the interested reader to study those arguments:

A. “[L]ong-standing historical practice and precedents” from “all three branches of [the federal] government” support the legality of Whitaker’s designation as Acting Attorney General.

1. “Since 1792, Congress has repeatedly legislated on the assumption that temporary service as a principal officer does not require Senate confirmation.” (See opinion at 8-9.)

2. Over the course of American history, Presidents have repeatedly exercised the power to select non-Senate-confirmed persons to serve temporarily as acting principal officers. While we have not canvassed the entire historical record, “our non-exhaustive survey” of the Executive Branch’s practice “has identified over 160 occasions between 1809 and 1860 on which non-Senate-confirmed persons served temporarily as an acting or ad interim principal officer in the Cabinet.”

In 1809, Jefferson designated the chief clerk of the Department of War to serve as Acting Secretary of War. In 109 additional instances during that period, chief clerks temporarily served as ad interim Secretary of State, Secretary of the Treasury, or Secretary of War. “Between 1853 and 1860 there were also at least 21 occasions on which non-Senate-confirmed Assistant Secretaries were authorized to act as Secretary of the Treasury.” “Congress not only acquiesced in such appointments, but also required a non-Senate-confirmed officer to serve as a principal officer in some instances.”

In January 1861, President Buchanan, summarizing the longstanding presidential view of the authority to designate interim officers, including non-Senate-confirmed persons, stated that the practice “has been constantly followed during every administration from the earliest period of the government, and its perfect lawfulness has never, to my knowledge, been questioned or denied.” (See opinion at 9-11.)

As to the role of Acting Attorney General: Several formal legal opinions between 1859 and 1868 were signed as “Acting Attorney General” by persons who had not been Senate-confirmed, and such a person was designated ad interim Attorney General for a short time in July 1866. (See opinion at 11-13.)

3. In 1898, the Supreme Court ruled (unanimously) in United States v. Eaton that the exercise of the authority of a Senate-confirmed office by an acting official did not transform that official into a principal officer whose appointment requires Senate confirmation. The Court “emphasized that the temporary performance of a principal office is not the same as holding that office itself,” and it “made clear that it holding was not limited … to the exigencies of Eaton’s particular appointment.”

“The Court has not retreated from Eaton, or narrowed its holding, but instead has repeatedly cited the decision for the proposition that an inferior officer may temporarily perform the duties of a principal officer without Senate confirmation.” (See opinion at 13-15.)

B. “Executive practice and more recent legislation reinforces that an inferior officer [who has not been Senate-confirmed] may temporarily act in the place of a principal officer.” Among the many examples from the presidencies of George W. Bush, Barack Obama, and Donald Trump: “In three instances, President Obama placed a Chief of Staff above at least one Senate-confirmed officer” in the line of succession for a department. Upon President Obama’s designation, non-Senate-confirmed individuals served as Acting Director of the Peace Corps, Acting Administrator of the Small Business Administration, and Acting Secretary of Labor.

“Indeed, if it were unconstitutional for an official without Senate confirmation to serve temporarily as an acting agency head, then the recent controversy over the Acting Director of the CFPB should have been resolved on that ground alone—even though it was never raised by any party, the district court, or the judges at the appellate argument.” (See opinion at 16-18.)

Law & the Courts

This Day in Liberal Judicial Activism—November 14

2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit. Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.  Brown is confirmed in June 2005, nearly two years after she was first nominated. Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.

Law & the Courts

President Trump Announces Neomi Rao as D.C. Circuit Nominee

Earlier today, President Trump announced his intent to nominate Neomi Rao to the D.C. Circuit.  If confirmed, Ms. Rao would fill the seat vacated by now Justice Brett Kavanaugh.

Ms. Rao currently serves as the Administrator of the Office of Information and Regulatory Affairs or OIRA (sometimes also referred to as
“the most important government office you have never heard of”).  Prior to joining the Trump Administration, Ms. Rao was a professor at Antonin Scalia Law School, where she focused her scholarship on issues involving administrative law.

Ms. Rao’s extensive experience in the field of administrative law will be an asset on the D.C. Circuit, which reviews on appeal the majority of litigation involving the various federal agencies.  Ms. Rao is also the seventh of President Trump’s court of appeals nominees to have clerked for Justice Clarence Thomas.  I look forward to seeing her confirmed.  ​

Link: Who is Neomi Rao? 

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