This Day in Liberal Judicial Activism—August 22

by Ed Whelan

2014— Justice Ruth Bader Ginsburg is becoming quite a Chatty Cathy. In a wide-ranging interview, Ginsburg somehow sees fit to offer her views on all sorts of matters. She reveals, for example, that she assigned the dissent in Schuette v. Coalition to Defend Affirmation Action to Justice Sotomoyor in order to accommodate Sotomayor’s desire to “quell” the “doubts” that some folks on the Left were having about Sotomayor’s “views on affirmative action.” And at the very time that pending certiorari briefs in cases challenging state marriage laws are debating what the Court’s ruling in United States v. Windsor signifies for those cases, Ginsburg volunteers her view that the “main theme” in Justice Kennedy’s previous rulings involving gay rights is “equal dignity,” not federalism.

This Day in Liberal Judicial Activism—August 20

by Ed Whelan

1985—Extending an error it made two years earlier, the Sixth Circuit (in Policy v. Powell Pressed Steel Co.) distorts ordinary contract principles as it construes a collective bargaining agreement to confer lifetime health-insurance benefits on retirees. Never mind that the agreement contained a provision providing for the continuation of pension benefits, but not of health-insurance benefits, after the expiration of the agreement.

Thirty years later, the Supreme Court will finally put an end to the Sixth Circuit’s presumption (unique among the federal courts of appeals) that collective bargaining agreements confer on retirees a vested right to lifetime benefits. In M&G Polymers v. Tackett, the Court will rule unanimously that such a presumption is incompatible with ordinary principles of contract law.

This Day in Liberal Judicial Activism—August 19

by Ed Whelan

2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.

This Day in Liberal Judicial Activism—August 18

by Ed Whelan

2010—In American Atheists, Inc., v. Duncan, a Tenth Circuit panel holds that the state of Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths.

In dissent from his court’s denial of en banc review, Judge Neil Gorsuch will decry that the Tenth Circuit applies its dubious “reasonable observer” test by using an observer who “continues to be biased, replete with foibles, and prone to mistake.”

In a lengthy dissent from the Supreme Court’s failure to grant certioriari, Justice Thomas will lament that the Court “rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”
 

This Day in Liberal Judicial Activism—August 17

by Ed Whelan

2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As one supporter of same-sex marriage puts it (emphasis added):

“This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Judicial Nominations Roundup

by Carrie Severino

Filling federal judicial vacancies with brilliant constitutionalist judges is one of Trump’s most important campaign promises.  While the administration is off to a good start, there are now even more vacancies than when the president took office and many more are expected, while partisan gridlock is on the rise. This is the first of a series of periodic updates for those following the process. 

Number of total current and known future vacancies:  160

            Courts of Appeals:  25

            District/Specialty Court*:  135

 

Number of pending nominees for current and known future vacancies:  32

            Courts of Appeals:  8

            District/Specialty Courts:  24

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

 

Blue Slip Status of Pending Court of Appeals Nominees

 

Nominee (Circuit): Amy Coney Barrett (7th)

Nomination Date: 5/8/2017

Days Pending: 95

Both blue Slips Returned? Yes

 

Nominee (Circuit): Joan Larsen (6th)

Nomination Date: 5/8/2017

Days Pending: 95

Both blue Slips Returned? Yes

 

Nominee (Circuit): Davis Stras (8th)

Nomination Date: 5/8/2017

Days Pending: 95

Both blue Slips Returned? No

 

Nominee (Circuit): Ralph Erickson (8th)

Nomination Date: 6/7/2017

Days Pending: 65

Both blue Slips Returned? Yes

 

Nominee (Circuit): Alison Eid (10th)

Nomination Date: 6/7/2017

Days Pending: 65

Both blue Slips Returned? No

Nominee (Circuit): Stephanos Bibas (3rd)

Nomination Date: 6/19/2017

Days Pending: 53

Both blue Slips Returned? No

 

Nominee (Circuit): L. Steven Grasz (8th)

Nomination Date: 8/3/2017

Days Pending: 8

Both blue Slips Returned? No

 

Nominee (Circuit): Michael Brennan (7th)

Nomination Date: 8/3/2017

Days Pending: 8

Both blue Slips Returned? No

 

Nominees Awaiting Senate Judiciary Committee Hearing (Blue Slips Returned)

 

Nominee (Circuit): Amy Coney Barrett (7th)

Nomination Date: 5/8/2017

Days Pending: 95

Judiciary Committee Hearing Date: Not scheduled

 

Nominee (Circuit): Joan Larsen (6th)

Nomination Date: 5/8/2017

Days Pending: 95

Judiciary Committee Hearing Date: 9/6/2017

 

Nominee (Circuit): Ralph Erickson (8th)

Nomination Date: 6/7/2017

Days Pending: 65

Judiciary Committee Hearing Date: 7/25/2017

 

Nominees Awaiting Floor Votes  (Reported by Senate Judiciary Committee)

            Courts of Appeals: 1

            District/Specialty Courts: 3

 

Nominees Confirmed by the Senate

            Courts of Appeals: 3

            District/Specialty Courts:  3

This Day in Liberal Judicial Activism—August 16

by Ed Whelan

1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review. 

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule. 

Has CFPB Director Richard Cordray Violated the Hatch Act?

Ninth Circuit En Banc Petition in Pro-Life Speech Case

by Ed Whelan

In late June, in First Resort, Inc. v. Herrera, a Ninth Circuit panel ruled that a San Francisco false-advertising ordinance that applies only against pregnancy-service centers that don’t provide or refer for abortions is constitutionally permissible. On a divided vote, the panel also ruled that the ordinance was not preempted by California’s false-advertising law.

The panel’s rulings are highly dubious and appear to reflect the abortion distortion that misshapes so much judicial reasoning. A pending petition for rehearing en banc (see also opposition (link fixed) and reply) gives the Ninth Circuit an opportunity to undo the damage before it spreads to other contexts.

In her majority opinion, Judge Dorothy Nelson (appointed by President Carter in 1979) makes no effort to conceal her biases. In her background section, she states as fact that “[f]alse and misleading advertising by clinics that do not provide abortions, emergency contraception, or referrals to providers of such services has become a problem of national importance.” Her lead support for this factual assertion is a supposed “congressional report.” But what she mischaracterizes as a “congressional report” is not a report of Congress, or of either House, or of any committee of either House, but rather a report issued by Congressman Henry Waxman’s minority staff on the House Committee on Government Reform. Yet she would have us believe that a report issued by a single House member’s staff, together with the introduction in Congress of a bill on the matter, suffice to establish the existence of a “problem of national importance.” Ridiculous.

Nelson’s legal reasoning isn’t any better. On the “central issue … whether the regulated speech should be characterized as commercial,” Nelson begins by citing circuit precedent that defines commercial speech as “speech that does no more than propose a commercial transaction.” But the clinic in the case, rather than engaging in commercial transactions with its clients, offers its services for free. That somehow doesn’t keep Nelson from invoking as precedent a case that involved “paid” medical services and from positing that what really matters is that the clinic’s “solicitation of a non-paying client base directly relates to [its] ability to fundraise and, in turn, to buy more advertisements.” But, as the clinic points out, “under this novel and expansive definition [of commercial speech], a pastor’s homily intended to attract worshippers and encourage donations would be commercial speech.” (Reply at 5.) Indeed, if trying to attract an audience for your speech and engaging in fundraising render speech commercial, then the commercial-speech doctrine would swallow up much of the First Amendment.

Nelson fares no better in her claim that an ordinance whose findings declare that it is targeting “clinics that seek to counsel clients against abortion” does not discriminate on the basis of viewpoint. Nelson opines that it is theoretically possible that the ordinance could apply against a clinic that “choose[s] not to offer abortions or abortion referrals for reasons that have nothing to do with their views on abortion, such as financial or logistical reasons.” But, the clinic argues, the Supreme Court’s governing precedents make clear that the content-neutrality of a law turns not on whether speakers with different subjective motivations could violate it but rather on whether the law’s application depends on the content of the message.

Let’s hope that the en banc Ninth Circuit gives this matter more careful consideration.

This Day in Liberal Judicial Activism—August 15

by Ed Whelan

1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.” 

This Day in Liberal Judicial Activism—August 13

by Ed Whelan

2015—In State v. Santiago, the Connecticut supreme court rules by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (Under some quirk of Connecticut procedure, the “official release” date of the ruling is August 25.)

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. It thus effectively expands the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment.

The court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerful dissent make clear.

This Day in Liberal Judicial Activism—August 12

by Ed Whelan

2010—In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal.

This Day in Liberal Judicial Activism—August 11

by Ed Whelan

2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”

What exactly Barkett means by “mental age” is confused. At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.” But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.” Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.”

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18. Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child. Does This Day perennial Barkett “understand why the rules exist”? Does she “appreciate the consequences of breaking them”—through her lawless judicial activism? Does she “consistently make judgments based” on those understandings? From the evidence that pervades This Day entries, the answers are no, no, and no.

This Day in Liberal Judicial Activism—August 9

by Ed Whelan

1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles. Some 2½ years later, in its own rampage (see This Day for Feb. 18, 1972), the California supreme court voids the death sentences that had been imposed on Manson and four other Family members.

This Day in Liberal Judicial Activism—August 8

by Ed Whelan

2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.”

Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.” Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing). And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals.”

Days later, under harsh criticism from its usual allies, NARAL pulls the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report on presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.

 

Blue-Slip Approvals for Appellate Nominees

by Ed Whelan

In contrast to Wisconsin’s Tammy Baldwin:

I’m pleased to highlight that Michigan’s two Democratic senators, Debbie Stabenow and Gary Peters, have returned their favorable blue slips on President Trump’s nomination of state supreme court justice Joan Larsen to the Sixth Circuit.  

Ditto for Indiana’s Joe Donnelly a couple of weeks ago on Trump’s nomination of Notre Dame law professor Amy Coney Barrett to the Seventh Circuit. Barrett’s hearing is set for September 6.

Larsen and Barrett both clerked for Justice Scalia, and I expect both to be outstanding federal judges.

Tammy Baldwin’s Phony Process Objection to Seventh Circuit Nominee

by Ed Whelan

Last week, President Trump added to his excellent record of judicial picks by nominating Milwaukee lawyer (and former state judge) Michael B. Brennan to a vacancy on the Seventh Circuit. But Senator Tammy Baldwin of Wisconsin is objecting to Brennan’s nomination on the ground that President Trump supposedly “turn[ed] his back on a Wisconsin tradition of having a bipartisan process for nominating judges.”

Baldwin’s objection cannot be taken seriously.

Under the agreement between Baldwin and her Republican colleague Ron Johnson, each senator appoints three members of the six-member judicial nominating commission, and a nominee is deemed approved by the commission only if that nominee gets at least five votes. Brennan received four votes—more, I’m told by folks involved in the process, than any other candidate, including the two Baldwin recommended.

It’s true that Brennan, despite receiving bipartisan support, fell one vote short of the five-vote threshold. But Baldwin herself, just two years ago, sent to President Obama’s White House “the names of all eight applicants” to the commission, including six who had received no more than three or four votes. In defense of her disregard of commission rules, Baldwin’s chief of staff explained, “This appellate court vacancy is now 1,947 days old and Senator Baldwin believes it is important that action be taken to put a judge in place to serve.”

Having invited President Obama to select a nominee who didn’t meet the five-vote threshold, Baldwin can hardly be heard to complain that President Trump has done so. Indeed, she should be grateful that he has selected a candidate who received approval from one of her appointees. The vacancy is now 2,189 days old, so Baldwin’s belief that “it is important that action be taken to put a judge in place” ought to be stronger than ever.

I’m further informed that the White House consulted with Baldwin and interviewed the two candidates she recommended, neither of whom (I’m told) received more than three votes from the commission.

This Day in Liberal Judicial Activism—August 7

by Ed Whelan

2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

This Day in Liberal Judicial Activism—August 6

by Ed Whelan

1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the unanimous Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.

Richard A. Posner’s The Federal Judiciary—Part 5

by Ed Whelan

See Parts 1, 2, 3, and 4

It wouldn’t be fair to suggest that Richard Posner’s new book contains little more than Scalia-bashing, as Posner dedicates lots of time to bashing other justices—and on matters apart from their praise of Scalia. (I’m joking a bit, of course. As I noted before, Posner’s stew might have some tasty morsels here or there, but few readers will have the appetite to search for them.)

According to Posner (p. 67), “the current set of justices is deficient in educational and career and even geographical diversity, deficient in understanding science and technology, virtually bereft of trial experience, not good team players, underworked, and in some respects … ethically challenged.” Unlike the ever-charming Posner, “[s]ome of them are downright disagreeable.”

“None of the current Justices,” Posner continues (p. 67), “measures up to any of” the “notable Justices” of the 20thcentury—Holmes, Jackson, Hughes, Brandeis, Taft, Stone and Cardozo—and none of them, “with the possible exceptions of Justices Ginsburg and Breyer,” equals even “such lesser though still distinguished Supreme Court Justices of that era as” Frankfurter, Warren, Brennan, Harlan, White, and—twist the knife—William O. Douglas (“at his intermittent best”). “Ginsburg and Breyer … alone have claims to excellence, in my opinion, and Ginsburg may be fading” (p. 401). (By the way, Posner was critical of Breyer in a previous book, but as I observed in part IV of my review of that book, his criticisms of Breyer’s judging would seem to apply equally to his own.)

Posner wildly alleges (p. 81) that “the four Justices who dissented in the same-sex marriage case (Obergefell) were in effect trying to enforce Catholic marriage law.” That’s an insipid account of what recognizing that the Constitution doesn’t speak to the question, one way or the other, means. Or was Posner himself “in effect trying to enforce Catholic marriage law” back when he declined to embrace the position that the Constitution requires that marriage be redefined to include same-sex couples?

Posner finds “disappointing” the “quality of the Justices appointed by Presidents George W. Bush and Barack Obama” (p. 164): Roberts, Alito, Sotomayor, and Kagan.

Posner spends some three pages (pp. 169-172) puzzling over, and slamming, the Chief Justice’s observation in his Obergefell dissent that the majority “orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” Posner imagines that he’s rebutting the Chief when he states that “homosexual sex was rife” in the ancient Han dynasty and that the Spaniards who conquered Mexico “were shocked by the prevalence of sodomy among the Aztecs.” What completely escapes Posner is that his points support the Chief’s broader observation that the “universal definition of marriage as the union of a man and a woman” arose for reasons having nothing to do with a “decision to exclude gays and lesbians.”

Posner actually devotes a long paragraph (pp. 172-173) to refuting the Chief Justice’s joke about law-review articles on “the influence of Immanuel Kant on evidentiary approaches in eighteenth century Bulgaria or something.” It doesn’t cross his mind that the Chief might deliberately have picked something nonsensical.

Posner alleges (p. 181) that among lawyers “there is considerable … questioning sotto voce” of the competence of the justices, “focusing primarily on Kennedy, Sotomayor, and Thomas, and secondarily on Roberts, Alito, and Kagan.”

Posner provides a long list of persons who “were better qualified to be Supreme Court Justices than those appointed to the Court instead” (pp. 184-185). On the list: Goodwin Liu, who was 38 and 39, with no judicial experience or other high-level legal experience, when President Obama nominated Sotomayor and Kagan in 2009 and 2010. Also on Posner’s list are five district judges from the Northern District of Illinois. It’s difficult not to believe that Posner is flattering them in order to disparage the justices.

Posner’s criticism of Justice Ginsburg for her public outspokenness on various matters (pp. 185-187) might be easier to take seriously if Posner himself did not routinely out-Ginsburg Ginsburg.

Mopey Dick seems to have a severe case of SCOTUS envy.