Law & the Courts

Certiorari Petition Challenges Standing of Abortion Providers

As you might recall, in early February the Supreme Court, by a vote of 5 to 4, granted the request of abortion providers to block a Louisiana law on hospital admitting privileges from taking effect until the Court rules on their petition for certiorari seeking review of the Fifth Circuit decision below. The abortion providers have now filed their certiorari petition (in Gee v. June Medical Services). With the briefing schedule having been extended over the summer, the Court will decide no earlier than October whether to grant the petition.

The abortion providers in this case might come to regret what they are asking for.

I’m very pleased to see that the state of Louisiana has filed a conditional cross-petition for certiorari that challenges the widespread lazy assumption that abortion providers have “third-party standing” to represent their patients’ interests. As the cross-petition explains, this assumption that benefits abortion providers—and that generates lots of abortion litigation—is an aberration from the third-party standing rules that apply to everyone else.

Specifically, the ordinary rule governing third-party standing is that (1) the party seeking to establish third-party standing must have a close relationship with the person who possesses the right, and (2) there must be a hindrance to that person’s ability to protect her own interest.

As to the first element: In this particular case, Louisiana explains, the doctor-patient relationship, far from being “close,” is “shallow, transitory, and, as to the issues in this case, rife with conflicts of interest”: “Plaintiffs oppose a health regulation intended to provide patients with a protection that Plaintiffs would not otherwise provide, against a factual backdrop showing that such protections matter.” Indeed, the clinic in this case “has a history of serious regulatory violations which the [Fifth Circuit] panel characterized as ‘horrifying.’” (See pp. 11-13 for more details.) The conflict of interest, Louisiana argues, should disqualify the plaintiff abortion providers from asserting third-party standing.

On the second element: The “whole history of constitutional litigation over abortion shows that women can and do assert their own alleged rights in court.”

(The abortion providers, of course, might well have their own rights to defend, but they get a huge benefit in litigation by invoking the rights of their patients.)

Louisiana’s cross-petition is conditional in that Louisiana is asking the Court to address this issue of third-party standing only if grants the abortion providers’ petition. I’m pleased to see that the signatories on the cross-petition include experienced Supreme Court practitioners Gene C. Schaerr and Erik S. Jaffe as well as Elizabeth B. Murrill, Louisiana’s excellent solicitor general.

If the Court were to grant the cross-petition and rule against the abortion providers on third-party standing, it could eliminate much of the abortion litigation that besets the federal courts.

Law & the Courts

Congrats, Dan Collins!

I am especially delighted to report that the Senate has just confirmed President Trump’s nomination of Daniel P. Collins to the Ninth Circuit.

Dan and I have been good friends since we clerked together for Justice Scalia during the Court’s October 1991 term. In recent years, Dan authored two outstanding amicus briefs on behalf of the Ethics and Public Policy Center—the think tank I head—in the Hobby Lobby and Little Sisters of the Poor/Zubik challenges to the Obama administration’s HHS contraceptive mandate.

Dan is a man of exceptional integrity and intelligence, and I am confident that he will be a great addition to the Ninth Circuit.

When Kenneth Lee and Dan Collins fill their seats, the Ninth Circuit will have 16 Democratic appointees and 11 Republican appointees. When President Trump was inaugurated, the imbalance was 19 D vs. 6 R. Beyond numbers, the fact that Lee and Collins are filling the seats held for decades by arch-activists Stephen Reinhardt and Harry Pregerson, respectively, dramatically signals the stark improvements underway.

Daniel Bress, also a former Scalia clerk, has been nominated to one of the two remaining vacancies and will have his confirmation hearing tomorrow. The other vacancy, to the putative Oregon seat to which Ryan Bounds had previously been nominated, awaits a new nominee.

Law & the Courts

Judicial-Nominations Update

(Carlos Jasso/Reuters)

Last week the Senate voted to confirm Ken Lee (Ninth Circuit) — the 40th circuit court nominee confirmed since Inauguration Day — along with two other district court nominees.

And more confirmations are expected this week. Senate Majority Leader McConnell filed for cloture to end debate on the nomination of Dan Collins, one of President Trump’s currently pending nominees to the Ninth Circuit. McConnell also filed for cloture on four other district court nominees.

On Wednesday, the Senate Judiciary Committee will hold a hearing on Dan Bress, another of President Trump’s pending nominees to the Ninth Circuit.

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

Current and known future vacancies:  157

Courts of Appeals:  7

District/Specialty Courts*: 150

Pending nominees for current and known future vacancies:  60

Courts of Appeals: 3

District/Specialty Courts*:  57

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

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
Dan Bress (9th) 2/6/2019 103 No 5/22/2019
Peter Phipps (3rd) 5/13/2019 7 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
None

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Dan Collins (9th) 11/13/2018 188 4/4/2019

 Nominees Awaiting Floor Votes:37

Courts of Appeals: 1

District/Specialty Courts: 36

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 3
  • # of pending nominees originally nominated > 400 days ago: 9
  • # of pending nominees originally nominated > 300 days ago: 22

Nominees Confirmed by the Senate during the 116th Congress: 22

Supreme Court: 0

Courts of Appeals: 10

District/Specialty Courts: 12

Nominees Confirmed by the Senate since Inauguration Day: 107

Supreme Court: 2

Courts of Appeals: 40

District/Specialty Courts: 65

Law & the Courts

This Day in Liberal Judicial Activism—May 20

(Shutterstock)

1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.”

Law & the Courts

This Day in Liberal Judicial Activism—May 19

(Tyrone Siu/REUTERS)

2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other … and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunk rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex.

Law & the Courts

This Day in Liberal Judicial Activism—May 18

(Yong Hian Lim/Dreamstime)

1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.”

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding.

Reinhardt will remain in active status on the Ninth Circuit until his death in March 2018.

2017—The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder.

The crystalline clarity of this provision somehow doesn’t stop federal district judge Joseph H. Leeson, Jr. In Blatt v. Cabela’s Retail, Inc., Leeson denies an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition.

Among Leeson’s somersaults of reasoning: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

What?!? We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders?

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability?

Law & the Courts

Some Thoughts on Overruling Roe

1. For reasons I explained more fully in my Senate Judiciary Committee testimony in 2005, I believe that the case for overruling Roe v. Wade and Planned Parenthood v. Casey is overwhelming. Here is an excerpt:

Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.

See part 2 of that testimony for some devastating criticisms of Roe from liberals who support a right to abortion.

2. The wave of protective pro-life legislation demonstrates that Planned Parenthood v. Casey’s effort to preserve Roe has failed. As Harvard law professor Adrian Vermeule succinctly explained in a tweet the other day (my underlining):

The premise of Planned Parenthood v. Casey was that the Court’s abortion jurisprudence could succeed in “call[ing] the contending sides of a national controversy to end their national division.” Doesn’t seem to have worked. Casey fails its own test.

3. We often hear from the Left pleas for “judicial statesmanship” to preserve liberal precedents. But real judicial statesmanship would be for the liberals on the Court to recognize that Roe is a dismal failure and to forge a unanimous ruling against it.

4. All the clamor over the Alabama and Georgia laws ignores that there are certiorari petitions pending before the Court right now that provide the opportunity to erode or overrule Roe.

One petition (which the Court has been sitting on for months now) 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.

Another presents the question whether a state may require an ultrasound at least eighteen hours before an abortion.

And yet another challenges a Fifth Circuit decision that upheld a Louisiana law that requires physicians who perform abortions to have admitting privileges at a local hospital. This is the law that the liberal justices, together with the Chief, blocked from taking effect, so it’s a safe bet that certiorari will be granted in the case.

5. Any justices who recognize that Roe should be overruled but who are waiting for just the right occasion to do so are fooling themselves. There will never be a perfect time, and stretching things out unnecessarily just means that the Court will be a fat political target. That doesn’t mean that the Court necessarily needs to overrule Roe at the first opportunity, but it shouldn’t shy from the challenge.

Law & the Courts

This Day in Liberal Judicial Activism—May 17

(Stephen Lam/REUTERS)

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition.

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple:

“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.”

Law & the Courts

Ninth Circuit Transformation Underway

Yesterday the Senate confirmed President Trump’s nomination of Kenneth Kiyul Lee to the Ninth Circuit. The vote was 52-45, entirely along partisan lines.

One added delight in Lee’s confirmation is that Lee will be filling the seat held for decades (from 1979 until last year) by arch-activist Stephen Reinhardt.

Up soon for a floor vote—next week, I hope—should be Ninth Circuit nominee Daniel P. Collins. [Update (3 p.m.): Cloture has been filed on the Collins nomination, so it should be voted on next week.] Collins would fill the seat long held by Harry Pregerson, the Ninth Circuit judge with the strongest claim to rival Reinhardt in lawless willfulness.

The appointments of Lee and Collins would give the Ninth Circuit 11 Republican appointees versus 16 Democratic appointees, with two remaining vacancies. At the start of the Trump administration, the Ninth Circuit had 19 Democratic appointees, only 6 Republican appointees, and four vacancies.

Daniel Bress has already been nominated to one of the vacancies (Alex Kozinski’s former seat). I hope that he receives his committee hearing very soon. [Update (3:20 p.m.): The hearing on the Bress nomination will take place next Wednesday.]

The other opening is for the putative Oregon seat vacated by the excellent Diarmuid O’Scannlain. A smear campaign somehow defeated Ryan Bounds’s nomination to this seat. I understand that Bounds will not be renominated.

If and when these vacancies are filled, the Ninth Circuit will have 13 Republican appointees to go with its 16 Democratic appointees.

Eight of the 16 Democratic appointees are eligible to take senior status, and a ninth soon will be, but there is no particular reason to expect any of them to elect that option.

 

Law & the Courts

This Day in Liberal Judicial Activism—May 16

2011—In United States v. C.R., senior federal district judge Jack B. Weinstein issues a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibits applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaces his discussion of the ruling:

“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.”

Some two years later, a Second Circuit panel will unanimously reverse Weinstein’s ruling.

Law & the Courts

Rescission of Puzzling and Extreme Ruling Against Physician-Only Abortion Requirement

I’m pleased to learn from this Washington Post article that federal district judge Henry E. Hudson has rescinded his ruling last week that held that a 1975 Virginia law that allows only licensed physicians to perform abortions cannot be enforced against abortions in the first trimester. (In this post, I explained why I found Judge Hudson’s initial ruling deeply troublesome in several respects.)

Kudos to Judge Hudson for having the humility to recognize his error and to correct it.

According to the article, Hudson intends to address at trial factual disputes that supposedly bear on whether the physicians-only law imposes an “undue burden.” For the reasons stated in point 1 of my previous post, I believe that existing Supreme Court precedents entitle Virginia to a ruling in its favor as a matter of law.

Law & the Courts

This Day in Liberal Judicial Activism—May 15

(Chip East/Reuters)

2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage (but that will itself later become the victim of egregious acts of judicial activism).

Politics & Policy

By Their Own Standards, Democrats Should Be Pushing, Not Impeding, Confirmations

Job-performance evaluations are routine for many Americans. Well, the American people have, in a sense, hired the president and the Senate, and they need to evaluate their performance when it comes to appointing federal judges.

The tough part is finding the right standard or criteria. It’s easy to find a yardstick that looks objective, but is really just a self-serving partisan benchmark. So to be on the safe side, let’s use standards offered by the Obama administration.

In July 2012, for example, White House Counsel Kathy Ruemmler issued a statement claiming that the “judicial vacancy rate has never been this high for this long.” That claim was not even close to being true when she made it; vacancies had declined steadily for the previous 18 months and, at 76, were the lowest in three years. In any event, there are 133 judicial vacancies today, 25 percent higher than when Trump took office.

In that same statement, Ruemmler claimed that “there are 20 judicial nominees waiting for consideration by the Senate, half of whom would fill vacancies deemed judicial emergencies.” Today, 36 judicial nominees are on the Senate’s executive calendar awaiting confirmation, 64 percent of them to judicial emergency vacancies.

In March 2013, the Obama White House released an infographic about his judicial nominees that included a section on “Delays in the Senate.” It criticized “unprecedented delays in the Senate confirmation process” resulting in 80.5 percent of Obama’s judicial nominees being confirmed. As the Heritage Foundation’s Judicial Appointment Tracker shows, that figure is only 56.5 percent for President Donald Trump’s judicial nominees.

In November 2013, Obama himself complained that judicial nominees who are confirmed with little dissent still have a long wait for a final vote. “So this isn’t obstruction on substance, on qualifications,” he said, it’s “just to gum up the works.” By then, five years into his presidency, the Senate had taken 12 votes to invoke cloture, or end debate, on judicial nominations, and only six of those votes failed. Only six filibusters – even when Senate rules allowed using a cloture vote to block a nomination.

In less than half the time under Trump, Obama’s party has forced the Senate to take 69 cloture votes on judicial nominations. And today, thanks to Democrats changing Senate rules, cloture votes can be used only to delay, but not to defeat, nominations. If 12 meaningful cloture votes served only to “gum up the works,” as Obama put it, what are six times as many meaningless cloture votes?

These are just a few of the criteria that the Obama administration used to evaluate how the Senate was conducting its part of the judicial appointment process. By these measures, the situation is much more serious today. Yet instead of helping to alleviate the problem, Democrats are making it worse.

Law & the Courts

This Day in Liberal Judicial Activism—May 14

Justice Harry Blackmun.

1969Mired in scandal, Supreme Court justice Abe Fortas announces his resignation from the Court. Fortas’s resignation comes less than a year after President Lyndon B. Johnson’s unsuccessful effort to have Fortas succeed Earl Warren as chief justice.

1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.

2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.

But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.

Law & the Courts

Re: A Strange New Crime

In a docket entry, the Ninth Circuit clerk’s office has taken responsibility for (and has corrected) the strange glitches in Judge Fletcher’s opinion in Kayer v. Ryan, so I have modified and updated my original post, which stated that “Fletcher and Judge Michelle T. Friedland and their law clerks … appear to have done some very poor proofreading.” My apologies for that mistaken speculation.

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Pro-Abortion Nonsense from John Irving

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