Law & the Courts

This Day in Liberal Judicial Activism—November 25

2013—In a wild administrative ruling (in In re Fonberg), the three-judge Judicial Council of the Ninth Circuit Executive Committee concludes that an unmarried court employee with a same-sex domestic partner is entitled to federal marital benefits. This, alas, is not the first time that Ninth Circuit chief judge Alex Kozinski has exercised his non-judicial administrative authority to carry out a sneak attack on marriage.

Law & the Courts

This Day in Liberal Judicial Activism—November 24

2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion. The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health. In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception.

On review, the Supreme Court rules unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate.

Law & the Courts

This Day in Liberal Judicial Activism—November 23

(Andrew Kelly/Reuters)

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

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.”

Law & the Courts

This Day in Liberal Judicial Activism—November 21

(Photo Illustration: NRO)

1997—The Alaska supreme court rules (in Valley Hospital Association v. Mat-Su Coalition for Choice) that a hospital operated by a nonprofit corporation is a “quasi-public institution” and that the state constitution’s “right of the people to privacy” requires that the hospital allow elective abortions to be performed on its premises.

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

What Are They Saying about Patrick Bumatay?

(Carlos Jasso/Reuters)

Tomorrow morning, the Senate Judiciary Committee is expected to take up the nomination of Patrick Bumatay. Bumatay, a committed constitutional conservative, has earned the support of both former Attorney General Jeff Sessions and Professor Michael McConnell.

Here are their statements. I look forward to seeing Patrick Bumatay’s nomination advanced to the Senate floor, and to his swift confirmation.

Honorable Jeff Sessions, Former Attorney General
“Patrick Bumatay will make a terrific judge on the Ninth Circuit. He has dedicated his career to upholding the rule of law. Patrick’s many fine qualities, including his integrity, intellect, and collegiality, make him exceedingly worthy of this position. And his fidelity to the text of the Constitution is exactly what this country needs. I am very pleased to support Patrick Bumatay’s nomination to the Ninth Circuit Court of Appeals.”

Honorable Michael McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School
“I have known Patrick Bumatay for nearly fifteen years, since he was a law clerk at the Tenth Circuit. I applaud his nomination to the Ninth Circuit and am confident he will be a principled judge who respects the rule of law and the Constitution.”


Law & the Courts

The President Is Filling Judicial Vacancies against Strong Confirmation Headwinds

U.S. President Donald Trump delivers remarks at the White House in Washington, D.C., November 15, 2019. (Tom Brenner/Reuters)

The Senate today confirmed the nomination of Barbara Lagoa to the U.S. Court of Appeals for the Eleventh Circuit. President Donald Trump has appointed 48 appeals court judges, more than any president at this point of his presidency.

Trump has now appointed 26.8 percent of the judges sitting on the U.S. Court of Appeals, a larger share than any president since Jimmy Carter (39.1 percent).

The number of confirmations, however, do not tell the whole story. The real story about the judicial confirmation process since Trump took office is the sustained, organized resistance working against filling judicial vacancies.

Let’s compare the last three years to the same period during every presidential administration since Franklin D. Roosevelt first took office. Before 2017, the Senate took a recorded vote when confirming only 14.6 of judicial nominees, compared to 79.2 percent under President Trump.

An even more dramatic difference is that, from Roosevelt through Obama, only 3.7 percent of confirmed judicial nominees had any opposition at all, even a single negative vote. That has skyrocketed to 71.3 percent for Trump nominees.

The average number of votes against confirmation of Trump’s judicial nominees is 38 TIMES higher than the average for his 11 predecessors. Trump’s 164 confirmed judicial nominees have received as many votes against confirmation as the previous 2284 confirmed judicial nominees combined.

In addition, Democrats have forced the Senate to take a separate vote to end debate on 121 Trump nominees, compared to only three at this point under either Obama or President George W. Bush. This step can add days to the time required to confirm even nominees with no opposition at all.

This additional information puts the final confirmation total in a little better context. There has been a huge number of federal judicial vacancies across the country, and Senate Democrats have been doing their best to keep them from being filled.

Law & the Courts

Eleventh Circuit Confirmations

Yesterday the Senate, by a vote of 64-31, confirmed President Trump’s nomination of Florida supreme court justice Robert J. Luck to the Eleventh Circuit.

Luck, I’m reliably informed, has already received and accepted his commission and is now a member of the Eleventh Circuit. That means that Judge Gerald Tjoflat, whose seat Luck has filled, is now in senior status. Tjoflat, who turns 90 next month, had been the longest-serving appellate judge in active status: President Gerald Ford appointed him in 1975 to what was then the Fifth Circuit. (The Fifth Circuit was divided into the Fifth and Eleventh Circuits in 1981.)

If Luck serves in active status as long as Tjoflat did, he will take senior status in 2063. And he will be only 84 then.

At 11:30 today, the Senate will vote on President Trump’s nomination of Florida supreme court justice Barbara Lagoa to the Eleventh Circuit. The Senate invoked cloture on her nomination yesterday by a margin of 80-15, so it’s a safe bet that she will be confirmed. (Update at 1 p.m.: Lagoa has been confirmed by the same 80-15 vote.)

When Lagoa takes office (probably on Friday, I’m told), the Eleventh Circuit will have seven appointees of Republican presidents versus five appointees of Democratic presidents. At the outset of the Trump administration, the Eleventh Circuit had eight appointees of Democratic presidents, only three appointees of Republican presidents, and one vacancy. It will become the third federal appellate court to have flipped to a majority of appointees of Republican presidents. (The Third Circuit was the first to do so; the Second Circuit flipped just last week, upon the appointment of Steven Menashi.)

Six of the thirteen appellate courts—D.C., First, Fourth, Ninth, Tenth, Federal Circuit—still have a majority of Democratic appointees, and none of them seems likely to flip any time soon.

Upon Lagoa’s taking office, President Trump will have appointed five of the Eleventh Circuit’s twelve active judges. That’s the highest percentage (42%) of any appellate court, and a sixth pick (Andrew Brasher) is in the pipeline.

Law & the Courts

This Day in Liberal Judicial Activism—November 20

Mississippi State Capitol in Jackson, Miss. (Wikipedia)

2018—In the course of applying the Supreme Court’s existing abortion regime to enjoin a Mississippi law that prohibits abortions after fifteen weeks of gestation, federal district judge Carlton W. Reeves can’t refrain from littering his opinion (in Jackson Women’s Health Organization v. Currier) with various injudicious and ill-considered 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.”

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 pregnant woman experiences “anxiety and turmoil.”

Law & the Courts

Judicial-Nominations Update

President Donald Trump delivers remarks at a campaign rally in Bossier City, La., November 14, 2019. (Tom Brenner/Reuters)

Today, yet another one of President Trump’s judicial nominees, Robert Luck, was confirmed to the Eleventh Circuit.  Luck’s confirmation follows that of Steven Menashi, who last Thursday was confirmed to the Second Circuit. Mr. Menashi and Mr. Luck are the 46th and 47th federal court of appeals judges appointed by President Trump, respectively.  And with the confirmation of Menashi, the Second Circuit has flipped from majority Democrat-appointed active judges to majority Republican-appointed active judges.

And that’s not all: Senate Majority Leader Mitch McConnell has also filed for cloture (to end debate) on the nomination Barbara Lagoa, who is nominated to the Eleventh Circuit. Upon Lagoa’s confirmation, the Eleventh Circuit will likewise flip, as Lagoa succeeds Judge Stanley Marcus, a Clinton appointee.

Finally, the Senate Judiciary Committee will hold a markup on Thursday and is expected to vote on the nominations of Lawrence VanDyke and Patrick Bumatay, both nominated to the Ninth Circuit.

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

Current and known future vacancies: 116

Courts of Appeals:  6

District/Specialty Courts*: 110

Pending nominees for current and known future vacancies:  49

Courts of Appeals: 5

District/Specialty Courts*:  44

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
Andrew Brasher† Pending N/A N/A Not Yet Scheduled

The president announced his intent to nominate Andrew Brasher on November 6, 2019. His nomination has not yet been formally received by the Senate and is thus not included in the pending nominee count.

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) 6/24/19 148 7/17/19
Lawrence VanDyke (9th) 10/15/19 35 10/30/19
Patrick Bumatay (9th) 10/15/19 35 10/30/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Barbara Lagoa (11th) 10/15/19


35 11/7/19
Robert Luck (11th) 10/15/19


35 11/7/19

 Nominees Awaiting Floor Votes: 28

Courts of Appeals: 2

District/Specialty Courts*: 26

Days Pending

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

Nominees Confirmed by the Senate during the 116th Congress: 80

Supreme Court: 0

Courts of Appeals: 16

District/Specialty Courts*: 64

Nominees Confirmed by the Senate since Inauguration Day: 165

Supreme Court: 2

Courts of Appeals: 46

District/Specialty Courts*: 117

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

Law & the Courts

Full Speed Ahead on Appellate Confirmations

After the Senate’s confirmation last week of Steven Menashi’s nomination to the Second Circuit, there are only six vacancies—existing or declared “future”—on the federal courts of appeals. (A “future” vacancy exists when a judge declares a decision to take senior status or retire on a specific date or upon the confirmation of the judge’s successor.)

There should be confirmations soon for five of the six vacancies: Eleventh Circuit nominees Barbara Lagoa and Robert J. Luck will likely have their Senate floor votes this week. Ninth Circuit nominees Patrick Bumatay and Lawrence VanDyke have had their hearings and should be lined up for full Senate action before Christmas. President Trump announced two weeks ago his intention to nominate federal district judge Andrew Brasher to a seat on the Eleventh Circuit; his confirmation hearing will likely take place in December, with a confirmation vote in January.

Fifth Circuit nominee Sul Ozerden faces conservative opposition in the Senate Judiciary Committee. Absent a dramatic turnabout, his nomination will likely be withdrawn soon.

Senior-Eligible Judges

The Senate will have the capacity to confirm lots of federal appellate judges in 2020. The only big question is whether there will be many vacancies. The answer to that question turns largely on how many sitting judges who are, or will soon be, eligible to take senior status (or retire) decide to do so.

In April, I identified the dozens of senior-eligible appellate judges. Since that time, six or so have taken senior status or announced their decision to do so. Given the likelihood that other judges will use the year-end holidays to reflect on whether they should follow suit, I figured I would update and republish the list so that you will see where vacancies might arise.

As before, I emphasize that I express no opinion on whether any particular judge should take senior status.

As a general rule, judges appointed by Democratic presidents are much less likely than judges appointed by Republican presidents to step down over the next few months. For that reason, I set forth the judges in two sets.

Here are the 29 appointees of Republican presidents who are (or, as noted, will soon be) eligible to take senior status:

D.C. Circuit: Henderson, Griffith (June 2020)

First Circuit: Torruella, Howard (November 2020)

Second Circuit: Hall

Third Circuit: Smith

Fourth Circuit: Niemeyer, Wilkinson, Agee (November 2020)

Fifth Circuit: Jones, Smith, Southwick, Owen (June 2020)

Sixth Circuit: Gibbons, Griffin

Seventh Circuit: Easterbrook, Flaum, Kanne, Rovner

Eighth Circuit: Benton, Loken, Shepherd

Ninth Circuit: Callahan, Smith, Ikuta (June 2020)

Tenth Circuit: Hartz

Federal Circuit: Lourie, Newman, Prost

And here is the list of 38 such appointees of Democratic presidents:

D.C. Circuit: Garland, Rogers, Tatel

First Circuit: Lynch, Thompson (August 2020)

Second Circuit: Cabranes, Chin, Katzmann, Pooler

Third Circuit: Ambro, McKee

Fourth Circuit: Floyd, Gregory*, King, Motz, Keenan (March 2020)

Fifth Circuit: Dennis, Stewart

Sixth Circuit: Clay, Cole, Donald, Moore

Seventh Circuit: Wood

Ninth Circuit: Berzon, Fletcher, Gould, Graber, McKeown, Paez, Rawlinson, Thomas, Wardlaw

Tenth Circuit: Briscoe, Lucero

Eleventh Circuit: Wilson, Martin (August 2020)

Federal Circuit: Dyk, Wallach

* Gregory was recess-appointed to the Fourth Circuit by President Clinton but holds his lifetime position by virtue of President George W. Bush’s appointment.

Update (11/25): I have made two corrections to the list of appointees of Democratic presidents. I have removed James Wynn of the Fourth Circuit (he will not become senior-eligible until August 2022), and I have added Beverly Martin of the Eleventh Circuit.

Law & the Courts

This Day in Liberal Judicial Activism—November 18

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


2014—For the second month in a row, the Supreme Court (in Frost v. Van Boening) summarily 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

This Day in Liberal Judicial Activism—November 16

1993—In Steffan v. Perry, a trifecta of Carter appointees on the D.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 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.”

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