Law & the Courts

Judge Barron’s Barren Reasoning

Strange things are going on in the little-noted First Circuit.

Next Tuesday, a panel will hear oral argument in Doe v. Trustees of Boston College. In that case, Boston College is appealing the district court’s grant of a preliminary injunction that bars Boston College from suspending “John Doe,” a male student whom it accused of sexual misconduct.

Doe recently filed a routine motion asking the First Circuit to allow him to substitute in Harvard law professor—and Title IX expert—Jeannie Suk Gersen as his counsel. An odd series of events (discussed more fully here by Scott Greenfeld on his Simple Justice blog) then ensued:

1. First Circuit judge (and former Harvard law professor) David J. Barron denied Doe’s motion on the ground that Gersen’s representation of Doe “would create a recusal” among the First Circuit judges. Barron didn’t explain why it “would create a recusal.” Nor, more importantly, did he address why the prospect of a recusal should trump Doe’s right to select his counsel. Given that the composition of the panel hadn’t yet been announced, there was no reason to think that Doe’s selection of Gersen had been made in order to cause a recusal.

2. When the calendar was announced for next week, it turned out that Barron was sitting on every case being heard on Tuesday except the Doe case. That led observers to think that Barron himself was the source of the unexplained conflict. But if he were, it would be very odd that he would have seen fit to rule on the motion in the first place.

3. Doe then filed an extensive—and, to my mind, compelling—motion for reconsideration in which he spelled out the circumstances that led to his motion to have Gersen represent him. I don’t see how anyone who reads that motion for reconsideration would think that Doe was trying to manipulate the composition of the panel. Nor is there any apparent reason why any of the judges chosen for that panel would have to recuse if Gersen argued the case. Yet the panel, over a dissent, denied the motion for reconsideration without any explanation.

Doe might soon file a motion for en banc reconsideration. [Update: Doe filed that motion late on 10/31.] If so, we shall soon see whether the First Circuit will vindicate the right of a civil litigant, absent unusual circumstances, to be represented by his counsel of choice.

Law & the Courts

Is Bill Clinton Saying that Justice Ginsburg Lied to the Senate?

At a Georgetown law school event yesterday with Hillary Clinton and Justice Ruth Bader Ginsburg, Bill Clinton revealed that he discussed Roe v. Wade with Ginsburg before nominating her to the Supreme Court in 1993 and that their discussion was important to “why I thought I should appoint her”:

[Ginsburg] knew this perfectly well, that I was under a lot of pressure to make sure I appointed someone who was simon-pure, which I had said I thought was important. But I was fascinated by a—either an article I had read or something I had read on Justice Ginsburg saying that she supported the result in Roe v. Wade but thought Justice Blackmun should have decided the case on the equal protection clause not the right to privacy. And I asked her the question and she talked about it just as if it was any other issue, no affect: “This is what I think, this is why I think it,” and she made a heck of a case.

By “someone who was simon-pure,” Clinton clearly means someone who would surely support the proposition that the Constitution confers an expansive abortion right. (As a presidential candidate in 1992, he promised that he would appoint a Supreme Court justice who “believe[d] in the right to privacy and the right to choose.”)

Clinton’s candid account of this conversation strikes me as rather difficult to reconcile with nominee Ginsburg’s sworn testimony to the Senate in 1993. The Senate questionnaire that Ginsburg completed included this question:

Has anyone involved in the process of selecting you as a judicial nominee (including but not limited to a member of the White House staff, the Justice Department, or the Senate or its staff) discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue, or question? If so, please explain fully.

In response (see p. 108 of hearing record), Ginsburg wrote:

It is inappropriate, in my judgment, to seek from any nominee for judicial office assurance on how that individual would rule in a future case. That judgment was shared by those involved in the process of selecting me. No such person discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.

But Clinton has just stated publicly that he did discuss Roe with her precisely in order to get the assurances he needed on her position on abortion. And he has further stated that Ginsburg “knew this perfectly well.”

In short, Clinton sure seems to be saying that Ginsburg lied to the Senate.

Law & the Courts

This Day in Liberal Judicial Activism—October 31


1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

Law & the Courts

Another Self-Inflicted Wound for the ABA

(Carlos Jasso/Reuters)

Just when you thought it was safe to go back in the judicial confirmation waters, the American Bar Association lets loose with another ratings attack. Last week, I wrote here about a U.S. District Court nominee who received a “not qualified” ABA rating. Well, now it’s a U.S. Court of Appeals nominee, Lawrence Van Dyke, receiving the same rating. And it means no more than it did before.

No one has ever accused the ABA of being conservative, or even Republican. In fact, since the 1970s, the ABA House of Delegates has passed hundreds of resolutions on all the hot political topics, all of them taking a liberal position. That’s probably not a coincidence.

So it’s reasonable to ask whether this consistently liberal organization can really be objective and non-political in its ratings of judicial nominees. The ABA, of course, would say, well, of course. That’s a little odd when liberals are constantly telling us that, when confirmed, those same nominees will be unable to put aside their personal views or politics and impartially decide cases.

We actually do have evidence suggesting an answer to whether ABA ratings are biased. The answer is yes. In fact, at least four studies (here, here, here, and here) over the last two decades show a systematic bias against………..drum roll………Republican nominees. These studies cover different periods and groups of judges, and use different methods, but all come to the same conclusion.

This time, it seems, the academics back the people using their common sense. A liberal group favors liberal judicial nominees. And if you want to know more about VanDyke’s legal experience, see here, and what those who really know are saying, see here.

But take a step back and ask whether any of this really matters. Even if the ABA were not a liberal interest group, even if its ratings were not biased against GOP nominees, do its ratings make any difference?

That doesn’t look good for the ABA either.

The Senate, for example, has confirmed more than a dozen judicial nominees, of both parties, rated “not qualified” by the ABA, most of them without any opposition at all. Just last year, the Senate confirmed Holly Teeter to the U.S. District Court in Kansas after she received the same rating as Walker and VanDyke. Not only was there no opposition, but the Senate did not even bother to take a recorded vote.

The other side of the coin is that, truth be told, Senate Democrats really don’t care what a nominee’s rating is. If President Donald Trump made the nomination, Democrats are voting NO. This year alone, the Senate has confirmed 13 nominees to the U.S. Court of Appeals. The nine receiving a “well qualified” ABA rating received an average of 42 negative votes.

The ABA’s ratings are biased and, in the end, no one really cares.

Law & the Courts

The ABA Has Outdone Itself Rating Lawrence VanDyke ‘Not Qualified’

Today the ABA Standing Committee on the Federal Judiciary notified that Senate Judiciary Committee that it has given a rating of “Not Qualified” to Lawrence VanDyke, President Trump’s nominee to the Ninth Circuit. The ABA has amassed quite the history of bias against conservatives over the last few decades, but with VanDyke, it has really outdone itself.

VanDyke graduated magna cum laude from Harvard Law School and served as an editor of the Harvard Law Review. He clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit before launching his appellate career.  VanDyke has the distinction of having served as both the solicitor general of Montana and Nevada, where he oversaw every important case affecting those states. He has argued over 20 appeals in the federal circuit courts (most in the Ninth Circuit) and has been the counsel of record on 28 briefs before the U.S. Supreme Court. Lawrence VanDyke is one of the standout appellate litigators of his generation.

Nonetheless, the ABA has made the astonishing determination that VanDyke is “Not Qualified.”  Consider for a moment the absurdity of that conclusion applied to someone who would be the only circuit judge to have served as the chief appellate litigator of two states—and one with major victories under his belt.  Yet even the Committee could not ignore the VanDyke’s impressive resume and experience, noting that it “was tasked with balancing Mr. VanDyke’s accomplishments with strong evidence that supports a ‘Not Qualified’” rating.  So instead, the Committee alleged that Mr. VanDyke lacks “professional competence” and “judicial temperament.”

The ABA is correct to recognize there are concerns here, but they are properly directed to the ABA and Van Dyke’s lead evaluator, Marcia Davenport, a trial attorney in Montana. A search of Montana’s campaign electronic reporting system shows that in 2014 Davenport contributed $150 to Michael Wheat, VanDyke’s opponent when he ran for a seat on the Montana Supreme Court. Yes, you read that correctly: VanDyke’s lead ABA evaluator has a history of opposing VanDyke politically. Moreover, the linked contribution report shows dozens of campaign contributions made by Ms. Davenport in recent years, but never one to a Republican (note that Davenport’s maiden name is Maynard).

And whom did Davenport rely upon in writing her evaluation? We can safely assume that at least one person she interviewed was Michael Black, given her reference to “600 pages of publicly produced emails” that she used in writing her formal report. Black was the Chief of the Civil Division Bureau of the Montana Department of Justice, and also publicly opposed VanDyke when he ran for the Montana Supreme Court, launching personal attacks against VanDyke. After Black came out against VanDyke in 2014, he told the Great Falls Tribune, “[Black’s] had a long, sort of mysterious vendetta against me, and I’m not sure why.” Black unsuccessfully sought a seat on the Montana Supreme Court, applying for an appointment in early 2014 when a seat came open.

So there you have it. A left-wing partisan who opposed Lawrence VanDyke in Montana led the ABA’s evaluation process, interviewing other political foes of VanDyke and — surprise! — found their gripes about his professionalism and temperament to be very credible. And then the ABA Standing Committee blessed that sham of a process by giving VanDyke a “Not Qualified” rating.

The Code of Judicial Conduct takes the issue of a judge’s impartiality seriously. Canon 3 states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which . . . the judge has a personal bias or prejudice concerning a party.” Yet the ABA—whose self-professed mission is “to serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession” — ironically can’t recognize the compromised impartiality of VanDyke’s lead evaluator.

And of course, this is just one more drop in the bucket with respect to the ABA’s long history of bias against conservative nominees to the judiciary. Thankfully the ABA is given very little credence by Republican presidential administrations and senators because of its embarrassing history, but this latest episode shows that it should have no role whatsoever in the judicial nomination process.

Law & the Courts

This Day in Liberal Judicial Activism—October 30

2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statement, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent.

White House

One of These Impeachment Resolutions Is Not Like the Other

House Speaker Nancy Pelosi announces the House of Representatives will launch a formal inquiry into the impeachment of President Donald Trump, September 24, 2019. (Kevin Lamarque/Reuters)

Democrats have rejected every opportunity to pursue their impeachment inquiry in a way that at least appears non-partisan, fair, or consistent with past practice. They just won’t do it.

First they refused to have the full House vote to authorize the inquiry. The House did it for the impeachment of Presidents Bill Clinton in 1998 and Richard Nixon in 1974. The House even did it for the impeachment of U.S. district judge G. Thomas Porteous, Jr. in 2010. But no, Speaker Nancy Pelosi refused to do so this time, instead unilaterally launching the inquiry herself.

Second, past impeachment inquiries were conducted by the House Judiciary Committee. This time, when Pelosi waved the starting flag, no less than six committees were off and running.

Now we are told that the House will vote on a resolution this week that, according to a Pelosi statement, directs the six committees to “continue their ongoing investigations as part of the existing” inquiry. What’s the point of the House voting to say “Carry On”?

While the resolution lists the six investigating committees, however, it spells out procedures for only two of them — Judiciary and Intelligence. The others, it appears, may continue in secret, making it up as they go along.

There’s one more curious thing about the proposed House resolution. When the House authorized the Clinton impeachment inquiry, House Resolution 581 allowed the Judiciary Committee chairman and ranking member to issue subpoenas “by acting jointly.” If “either declines to act,” the other had to first refer the matter to the full committee for decision before acting alone. House Resolution 803 spelled out the same procedure for the Nixon impeachment.

The proposed resolution for the Trump impeachment inquiry is different. It says only that the ranking member may issue subpoenas “with the concurrence of the chair.” If the chair “declines to concur,” the ranking member must refer the matter to the full committee for decision before acting alone.

See the difference? The chairman may issue subpoenas unilaterally, but the ranking member is always subject to the permission of the majority — either the chairman or the committee, on which Democrats have a 13–9 advantage.

If House Democrats really, or even half-heartedly, wanted something as grave as an impeachment inquiry to at least look reasonably non-partisan or fair, they know how to do it. They’ve chosen not to do it that way, which tells just what their motive really is.

Law & the Courts

Eleventh Circuit Chief Judge Carnes to Take Senior Status

According to the list maintained by the Administrative Office of the U.S. Courts, Eleventh Circuit chief judge Edward E. Carnes has announced that he will take senior status at some as-yet-undefined date. Carnes’s tenure as chief judge ends, as I understand it, next June 3—the date on which he turns 70—so it’s reasonable to expect that that’s the date on which he will take senior status (though he could do so sooner).

In the meantime, the White House can go ahead and nominate Carnes’s successor, and the Senate can confirm the nomination. Only the post-confirmation act of appointment by the president requires that Carnes first have taken senior status (so that a vacancy exists).

Once the pending nominees Barbara Lagoa and Robert Luck are confirmed and appointed, the Eleventh Circuit will have seven appointees of Republican presidents versus five appointees of Democratic presidents. (Technically, that tally will be achieved when Lagoa is appointed, as Luck is replacing a Republican appointee.) At the outset of the Trump administration, the Eleventh Circuit had eight Democratic appointees, only three Republican appointees, and one vacancy.

Further, if President Trump appoints Carnes’s successor as well as Lagoa and Luck, he will have appointed six judges to the Eleventh Circuit. That is half of its total—higher than for any other court.

In sum, there is a strong argument that the Eleventh Circuit is the federal appellate court that will have been most transformed by Trump by the end of 2020.

Law & the Courts

Sixth Circuit Ruling Bars Ohio Law Against Down Syndrome Abortions

Two weeks ago (in Preterm Cleveland v. Himes), a divided panel of the Sixth Circuit barred the state of Ohio from enforcing its law that prohibits medical providers from performing an abortion if they have “knowledge that the pregnant woman is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome.

In her majority opinion (joined by chief judge Guy Cole), Judge Bernice Bouie Donald declared that the Roe/Casey regime confers a “categorical” right to abortion before viability. (Donald was appointed by President Obama, Cole by President Clinton.)

In her dissent, Judge Alice Batchelder (an appointee of President George H.W. Bush) argued that the undue-burden analysis under Casey instead requires a “fact-intensive” inquiry that also takes into account “the State’s interests and the benefits of the law, not just the potential burden it places on women seeking an abortion.” Having failed to conduct that inquiry, the majority and the district court had no basis for enjoining the law.

Batchelder further pointed out that the Supreme Court’s ruling in Gonzales v. Carhart (2007) allowed the federal ban on partial-birth abortion to apply before viability. She also invoked Justice Thomas’s observations (from his forceful concurring opinion last spring in Box v. Planned Parenthood) that laws like Ohio’s “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics” and that the Court’s abortion rulings do not require states “to allow eugenic abortions.”

I’m pleased to see that the state of Ohio has today filed a petition for rehearing en banc. The petition argues that the panel majority erred when it concluded that there is a “categorical” right to a pre-viability abortion: “Indeed, Casey itself upheld a law prohibiting minors from getting abortions without parental consent or court approval—that is, a law that banned those who could obtain neither consent nor court approval from getting an abortion.” The petition also emphasizes the “two critically important state interests” that the law advances:

First, anti-eugenics laws protect the dignity of people living with conditions or traits targeted for abortion.… The practice of targeting unborn children with Down syndrome for abortion devalues the lives of people living with Down syndrome.

Second, anti-eugenics laws are necessary because eugenic abortions “do deep damage to the integrity of the medical profession.” [Quoting Batchelder dissent.] Humans are not show dogs or racehorses.… Every human life matters—certainly the people of Ohio may enact laws reflecting that view—and the medical profession [which “actively promoted eugenic ‘solutions’” in the early 20th century] must never again be associated with a contrary view.

Law & the Courts

This Day in Liberal Judicial Activism—October 25

(Tyrone Siu/REUTERS)

1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001—“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.

Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court.

2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples.

Law & the Courts

The Confirmation Process: That Was Then, This Is Trump

President Donald Trump speaks to reporters on the South Lawn of the White House, October 10, 2019. (Jonathan Ernst/Reuters)

Today the Senate confirmed Justin Walker to the U.S. District Court for the Western District of Kentucky. President Donald Trump’s critics are crying foul, this time because the American Bar Association (ABA) rated Walker “not qualified.” Not surprisingly, there’s more to the story.

Four studies (here, here, here, and here) over the last two decades have all found systematic bias by the ABA in its ratings of Republican nominees. It’s no wonder that Democrats, led by Senators Chuck Schumer (D., N.Y.) and Patrick Leahy (D., Vt.) have claimed that the ABA rating is the “gold standard” for evaluating nominees.

The ABA states its rating policy in bold on its ratings website: “In all circumstances, the majority rating is the official rating of the ABA Standing Committee on the Federal Judiciary.” Presidents of both parties have nominated individuals with “not qualified” ABA ratings, and most have been confirmed without any opposition.

In August 1993, for example, President Bill Clinton nominated Alexander Williams to the U.S. District Court in Maryland. Both the Judiciary Committee and the full Senate approved the nomination without opposition.

One year later, Clinton nominated David Katz to the U.S. District Court in Ohio. Again, both the Judiciary Committee and full Senate approved the nomination without any opposition.

In September 2001, President George W. Bush nominated David Bunning to the U.S. District Court in Kentucky. At his hearing, then Judiciary Committee Chairman Leahy said: “Neither the ABA nor the Senate Judiciary Committee expect [the ABA’s] recommendations to be dispositive.” It wasn’t. Both the committee and full Senate approved the Bunning nomination without opposition.

In May 2003, Bush nominated Roger Benitez to the U.S. District Court in California. After unanimous Judiciary Committee approval, Benitez received just a single negative vote for confirmation.

In January 2006, Bush nominated Vanessa Bryant to the U.S. District Court in Connecticut. Senator Richard Blumenthal (D., Conn.) criticized the ABA evaluation process for relying on subjective information from anonymous sources. Bryant was approved without dissent by both the Judiciary Committee and the full Senate.

So what’s the difference today? Just one: Justin Walker was nominated by President Donald Trump. In just three years, his nominees to the U.S. District Court have received more negative confirmation votes than judges confirmed to that court in the previous 69 years combined.

On each of the nominations listed above, the Senate ended debate without having to take a separate cloture vote. The majority and minority simply agreed to schedule final confirmation. Democrats have forced the Senate to take a cloture vote on 76 of Trump’s nominees to the U.S. District Court, more than in all of American history combined.

In September 2012, when President Barack Obama was in office, Leahy criticized obstruction of district court nominations. In the past, he said on the Senate floor, “district court nominees supported by home state Senators were almost always confirmed unanimously.”

That was then, this is Trump. Fewer than 40 percent of his district court nominees have been confirmed unanimously. Including Walker, in just three years, Leahy has voted against 32 of Trump’s district court nominees. In his previous 42 years in the Senate, Leahy had voted against just two district court nominees.

Nothing rationally related to the judicial confirmation process explains any of this. Democrats have instead retooled that process, weaponizing it for their fight against the president.

Law & the Courts

This Day in Liberal Judicial Activism—October 23

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.

Law & the Courts

This Day in Liberal Judicial Activism—October 22


1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause.

Undeterred, in Foster v. State Florida chief justice (and, later, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”

Law & the Courts

Judicial-Nominations Update

The White House is continuing to nominate federal judges and the Senate is continuing to process and confirm those nominees. As mentioned in my last update, nominees have been selected for all eight existing vacancies on the federal appellate courts — a testament to the efficiency and diligence of the White House and the Senate in steadily filling these positions. And with the Senate in session until Thanksgiving, we can expect more confirmations in the coming weeks.

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

Current and known future vacancies: 120

Courts of Appeals: 8

District/Specialty Courts*: 112

Pending nominees for current and known future vacancies: 55

Courts of Appeals: 8

District/Specialty Courts*: 47

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination


Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
Lawrence VanDyke (9th) 10/15/19 6 No TBD
Patrick Bumatay (9th) 10/15/19 6 No TBD

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Halil Suleyman “Sul” Ozerden (5th) 6/24/19 119 7/17/19
Steven Menashi (2nd) 9/9/19 42 9/11/19
Danielle Hunsaker (9th) 9/19/19 32 9/25/19
William Nardini (2nd) 9/19/19 32 9/25/19
Barbara Lagoa (11th) 10/15/19


6 10/16/19
Robert Luck (11th) 10/15/19


6 10/16/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor

 Nominees Awaiting Floor Votes: 20

Courts of Appeals: 0

District/Specialty Courts*: 20

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 6
  • # of pending nominees originally nominated > 400 days ago: 6
  • # of pending nominees originally nominated > 300 days ago: 12

Nominees Confirmed by the Senate during the 116th Congress: 73

Supreme Court: 0

Courts of Appeals: 13

District/Specialty Courts*: 60

Nominees Confirmed by the Senate Since Inauguration Day: 158

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts*: 113

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

Law & the Courts

Lawsuit Against the City of Austin’s Funding of Abortion

The city of Austin, Texas, recently enacted a budget that provides $150,000 in taxpayer money to organizations that provide travel, lodging, and other forms of aid to women seeking abortion. But as a taxpayer petition filed in state court powerfully argues, this taxpayer subsidy violates a Texas statute, dating back to the 19th century, that imposes criminal liability on anyone who “furnishes the means for procuring an abortion knowing the purpose intended.”

That statute, the petition acknowledges, is unenforceable under Roe v. Wade and successor cases insofar as it would penalize actions that have been held to be constitutionally protected under the Roe regime. But “[i]t has long been established that women seeking to abort their pregnancies have no constitutional right to taxpayer assistance, and that the withholding of taxpayer subsidies does not constitute an ‘undue burden.’” Therefore, the statute remains enforceable against Austin’s expenditures of taxpayer money for abortion.

The Texas statute was part of the set of Texas abortion laws that were at issue in Roe v. Wade and that the Supreme Court held to be unconstitutional in many of their applications. But as the petition explains, “A Supreme Court ruling that declares a statute unconstitutional means only that the statute may not be enforced in a manner that contradicts the Supreme Court’s interpretation of the Constitution.” In particular, contrary to common references to a court’s “striking down” a statute, the federal courts “do not wield a writ of erasure over the statutes that they declare unconstitutional, and these statutes continue to exist as laws until they are repealed by the legislature that enacted them.”

Very alert longtime readers might recognize that the mistaken notion that judges “strike down” laws is part of the myth of judicial supremacy that I’ve been combating over the years. (See, e.g., this book review of mine.) One excellent law-review article that I’ve had occasion to cite is Jonathan Mitchell’s “The Writ-of-Erasure Fallacy.” Not coincidentally, Mitchell represents the taxpayer petitioner in the lawsuit against Austin.

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We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More

The Absurd Crusade against the Salvation Army

We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More

It’s Not Because She’s a Woman

In early October, Elizabeth Warren hit her stride. Her stock in the Democratic primary had been climbing steadily since midsummer, and as Joe Biden continued to lag, the Massachusetts senator became the first presidential hopeful to overtake him as front-runner in the RealClearPolitics polling average. She’s ... Read More

It’s Not Because She’s a Woman

In early October, Elizabeth Warren hit her stride. Her stock in the Democratic primary had been climbing steadily since midsummer, and as Joe Biden continued to lag, the Massachusetts senator became the first presidential hopeful to overtake him as front-runner in the RealClearPolitics polling average. She’s ... Read More

Clint Eastwood’s Messy, Nuanced Triumph

After a pipe bomb exploded at a concert held to celebrate the 1996 Olympics in Atlanta’s Centennial Park, the FBI came to suspect that the security guard who discovered the device might have planted it to gain a reputation as a hero. The knotty story of that security guard, Richard Jewell, does not lend itself ... Read More

Clint Eastwood’s Messy, Nuanced Triumph

After a pipe bomb exploded at a concert held to celebrate the 1996 Olympics in Atlanta’s Centennial Park, the FBI came to suspect that the security guard who discovered the device might have planted it to gain a reputation as a hero. The knotty story of that security guard, Richard Jewell, does not lend itself ... Read More