New York Events for Scalia Speaks

by Ed Whelan

I’ll be in New York City and on Long Island for three events on Scalia Speaks in the week after Thanksgiving.

On Monday, November 27, at 6:00 p.m., I’ll speak to the Long Island lawyer chapter of the Federalist Society in Mineola. More info here.

On Tuesday, November 28, the Manhattan Institute will kindly host me for a noon event in New York City. Manhattan Institute events are generally invite-only; however, seats may still be available. If you’re interested in attending this event, please click here and include the names of those who would like to attend.

On Tuesday evening, at 6:00, I will speak to the New York City lawyers chapter of the Federalist Society. More info here.

I’m very much looking forward to all three events.

This Day in Liberal Judicial Activism—November 18

by Ed Whelan

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.

President Trump’s Expanded Supreme Court List

by Ed Whelan

Just issued: President Trump’s new list of candidates for the next Supreme Court vacancy. The list includes the candidates on the old list (minus Justice Gorsuch, of course) and adds five new names:

Amy Coney Barrett, Seventh Circuit

Britt C. Grant, Georgia supreme court

Brett M. Kavanaugh, D.C. Circuit

Kevin C. Newsom, Eleventh Circuit

Patrick Wyrick, Oklahoma supreme court

President Trump Adds Names to List of Potential Supreme Court Nominees

by Carrie Severino

Today President Trump has announced an expansion of his list of potential Supreme Court nominees for the next opening. It includes excellent federal and state court judges, including two that Trump himself nominated. All have strong records of a principled approach to judging and represent rising stars in the judiciary. Below are links to bios of the new members of the list.

Judge Amy Coney Barrett

Justice Britt Grant

Judge Brett Kavanaugh

Judge Kevin Newsom

Justice Patrick Wyrick

Who is Judge Brett Kavanaugh?

by Carrie Severino

Judge Brett Kavanaugh is one of President Trump’s potential nominees to the U.S. Supreme Court.

Age: 52

Current Position: Circuit Court Judge, U.S. Court of Appeals for the D.C. Circuit (Washington, D.C.)

Education:

  • B.A., Yale College (1987)
  • J.D., Yale Law School (1990); Notes Editor, Yale Law Review

Judicial Clerkships: Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit (1990-91); Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit (1991-92); Associate Justice Anthony M. Kennedy of the U.S. Supreme Court (1993-94)

Experience:

  • 1992-1993: Bristow Fellow, Office of the Solicitor General, U.S. Department of Justice (Washington, D.C.)
  • 1994-1997, 1998: Associate Counsel, Office of Independent Counsel Kenneth W. Starr (Washington, D.C.)
  • 1997-1998, 1999-2000: Partner, Kirkland & Ellis LLP (Washington, D.C.)
  • 2003-2006: Assistant to the President and Staff Secretary to the President (Washington, D.C.)
  • 2006-present: Circuit Court Judge, U.S. Court of Appeals for the D.C. Circuit

Notable Matters:

  • Judge Kavanaugh was nominated to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush.
  • Judge Kavanaugh has taught courses at Harvard Law School, Yale Law School, and Georgetown University Law Center; published scholarly articles in numerous law review and journals; and is a member of the Advisory Committee on Appellate Rules of the Judicial Conference of the United States.
  • In 2012, Judge Kavanaugh wrote a dissent to the denial of rehearing en banc in Coalition for Responsible Regulation v. EPA, which involved a challenge to greenhouse gas regulations promulgated by the EPA. Judge Kavanaugh wrote that the EPA’s interpretation of the term “air pollutant” to include greenhouse gases in a provision of the Clean Air Act was inappropriately broad (“When an agency is faced with two initially plausible readings of a statutory term, but it turns out that one reading would cause absurd results, I am aware of no precedent that suggests the agency can still choose the absurd reading and then start re-writing other perfectly clear portions of the statute to try to make it all work out.”) Warning of the of the separation of powers issues implicated, Judge Kavanaugh wrote that “[a]llowing agencies to exercise that kind of statutory re-writing authority could significantly enhance the Executive Branch’s power at the expense of Congress’s and thereby alter the relative balance of powers in the administrative process.” The Supreme Court later overturned the D.C. Circuit panel decision in part, citing Judge Kavanaugh’s dissent from denial of hearing en banc. See Utility Regulatory Group v. EPA, 134 S.Ct. 2427 (2014).
  • In 2016, Judge Kavanaugh wrote the majority opinion in PHH Corp. v. Consumer Financial Protection Bureau, 839 F. 3d 1, which found the structure of the CFPB to be unconstitutional. The CFPB, an independent agency, was created by the Dodd-Frank Act. Unlike other independent agencies, which are headed by multimember commissions, the CFPB is headed by an individual director who can only be removed for cause. In his opinion for the three-judge panel, Judge Kavanaugh wrote that the CFPB’s unusual structure “lacks the critical check and structural constitutional protection” against arbitrary decision making found in agencies that are headed by multi-member commissions, and thus posed a threat to individual liberty. The D.C. Circuit granted the CFPB’s petition for rehearing en banc and is currently considering the case.

Biographical Notes: Judge Kavanaugh is originally from Bethesda, Maryland. He is married and has two daughters.

Who is Justice Patrick Wyrick?

by

Justice Patrick Wyrick is one of President Trump’s potential nominees to the U.S. Supreme Court.

Age: 36

Current Position: Associate Justice, Oklahoma Supreme Court (Tulsa, OK)

Education:

  • B.A. University of Oklahoma (2004)
  • J.D., University of Oklahoma College of Law (2007)

Judicial Clerkships: Judge James H. Payne, U.S. District Court for the Eastern District of Oklahoma (2007-2008)

Experience:

  • 2008-2011: Associate, GableGotwals (Tulsa, OK)
  • 2011-2017: Solicitor General, State of Oklahoma Office of the Attorney General (Tulsa, OK)
  • 2017-present: Associate Justice, Oklahoma Supreme Court (Tulsa, OK)

Notable matters:

  • Governor Mary Fallin appointed Justice Wyrick to the Oklahoma Supreme Court in early 2017.
  • As Solicitor General for the State of Oklahoma, Justice Wyrick represented Oklahoma before the U.S. Supreme Court, the Oklahoma Supreme Court, and other federal and state courts. He also authored legal opinions for then-Attorney General for the State of Oklahoma, Scott Pruitt, and other Oklahoma state officials.
  • Justice Wyrick successfully represented the State of Oklahoma before the U.S. Supreme Court in Glossip v. Gross (2015), which concerned the constitutionality of Oklahoma’s lethal injection protocol. The Court held that there was insufficient evidence that Oklahoma’s use of midazolam as the initial drug in its execution protocol entailed a substantial risk of severe pain in violation of the Eighth Amendment.
  • During Jutice Wyrick’s tenure as Solicitor General, Oklahoma joined states challenging the Affordable Care Act and the Clean Power Plan.

Professional Associations: Justice Wyrick has spoken at Federalist Society events about issues including Supreme Court litigation, the death penalty, and the Affordable Care Act.

Biorgraphical Notes: Justice Wyrick is a fourth generation Oklahoman and was born and raised in Atoka, Oklahoma. He is married and has three children.

Who is Justice Britt Grant?

by Carrie Severino

Justice Britt Grant is one of President Trump’s potential nominees to the U.S. Supreme Court.

Age: 39 (approximate)

Current Position: Justice, Supreme Court of Georgia (Atlanta, GA)

Education:

  • B.A. Wake Forest University (2000); summa cum laude; Honor Scholar
  • J.D., Stanford Law School (2007); with distinction; President, Stanford Federalist Society; Co-Founder and Co-President, Stanford National Security and the Law Society; Managing Editor, Stanford Journal of International Law.

Judicial Clerkships: Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit (2007-2008)

Experience:

  • 2001-2004: Domestic Policy Council, USA Freedom Corps, and Office of Cabinet Affairs, The White House (Washington, D.C.)
  • 2008-2012: Associate, Kirkland & Ellis LLP (Washington, D.C.)
  • 2012-2014: Counsel for Legal Policy, State of George Office of the Attorney General (Atlanta, GA)
  • 2015-2017: Solicitor General, State of Georgia Office of the Attorney General (Atlanta, GA)
  • 2017-present: Justice, Supreme Court of Georgia (Atlanta, GA)

Notable matters:

  • Justice Grant was appointed to the Georgia Supreme Court by Governor Nathan Deal in January 2017.
  • As Solicitor General of the State of Georgia, Justice Grant served as the chief appellate lawyer and primary constitutional advisor to the Attorney General of Georgia. In that capacity, Justice Grant represented the State of Georgia in matters before the U.S. Supreme Court, various federal Circuit Courts of Appeal, the Georgia Supreme Court, and the Georgia Court of Appeals.
  • At Kirkland & Ellis LLP, Justice Grant’s practice including matters involving products liability, antitrust, class action defense, contracts, defamation, multi-district litigation, and constitutional law.
  • During Jutice Grant’s tenure as Solicitor General, Georgia joined states challenging the Affordable Care Act and the Clean Power Plan.

Professional Associations

  • Justice Grant currently serves on the Federalism & Separation of Powers Executive Committee of the Federalist Society and as a member of the Executive Board of the Atlanta Chapter of the Federalist Society.
  • Justice Grant is a member of the State Bar of Georgia and of the Appellate Practice Section of the State Bar of Georgia.

Biographical Notes: Justice Grant is a Georgia native. She was born in Atlanta, Georgia and raised in Fulton County. Justice Grant is married and has three children.

This Day in Liberal Judicial Activism—November 17

by Ed Whelan

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

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

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

Supreme Court to Decide if FACT Act Hacks Away at First Amendment

by James Gottry

Should pro-life pregnancy-care centers be compelled to provide free advertising for abortion providers like Planned Parenthood? On Monday, the U.S. Supreme Court agreed to consider this very question, which the case National Institute of Family and Life Advocates v. Becerra presents.

California lawmakers made their position on abortion abundantly clear when they passed a law called the “Reproductive FACT Act.” The law, which took effect in January 2016, targets pro-life pregnancy-care centers. Let’s be clear, no speculation or inference regarding the law’s intent is necessary; the state admitted targeting centers that “discourage” abortion. And they do so brazenly.

The law forces pregnancy-care centers to shill for the abortion industry by displaying an advertisement that advises women on how they can obtain an abortion from the state — complete with a phone number. Callers are referred to abortion giant Planned Parenthood and other abortion facilities. This bears repeating: Under California law, private pro-life pregnancy-care centers are required to put signs on their walls promoting free or low-cost abortion and contraception services, and providing contact information for those abortion providers.

Forced to undermine their essential purpose

These pro-life centers, such as Pregnancy Care Clinic and other members of the National Institute of Family and Life Advocates, were founded to provide assistance to women facing unplanned pregnancies. Specifically, they offer pro-life information and resources, as well as practical medical or non-medical support that will support a woman’s choice to give birth. Accordingly, forcing these centers to promote abortion goes far beyond demanding that a business advertise for its competitors (though that alone would be absurd). This law requires the centers to promote services that are anathema to their core reason for existing.

Any analogies will sound absurd, but only because the reality defies reason. Consider a vegan restaurant forced to post fliers for Outback Steakhouse, or an Alcoholics Anonymous group required to promote a nearby bar’s happy hour. Should PETA be made to share information on how to obtain free or low-cost hunting licenses? Should the American Lung Association be compelled to advertise for cigarette manufacturers?

The obvious answer to these questions affirms the simple truth about this case: Pro-life pregnancy-care centers should not be forced to contradict their core message.

Free to speak, and free not to speak

The Supreme Court — and the First Amendment — have not been silent on the issue. In 1986, the Supreme Court held that a utility company couldn’t be forced to include in its billing envelope a message supplied by a public-interest group. Even though the message could have been added without increasing costs to the utility company, the court correctly noted that the right to free speech includes “the choice of what not to say.” For that reason, the company could not be required to spread a message with which it disagreed.

A more recent example comes from 2013, where the Supreme Court struck down a law that required groups receiving U.S. government funds for international HIV and AIDS work to adopt a policy explicitly opposing prostitution. In the opinion, Chief Justice John Roberts referred to the “basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say,” adding that “[t]he government may not . . . compel the endorsement of ideas that it approves.”

The abortion business doesn’t need indentured spokespersons

Planned Parenthood receives more than $500 million each year in federal funding. The group boasts of more than $1.8 billion in total assets and, in fiscal year 2016, spent more than $25 million in branding and “advocacy capacity” alone. That same year, they performed 328,348 abortions. Suffice it to say, the business of abortion is set up to thrive (monetarily speaking).

In contrast, pregnancy-care centers are generally small nonprofits with limited funding and modest budgets. They offer their services free of charge (no abortion revenue to boost the budget) and seek only to come alongside expectant mothers and unborn children, helping both to thrive.

Abortion has already silenced enough voices. The abortion industry shouldn’t be allowed to force those that remain to promote its agenda.

James Gottry is legal counsel with Alliance Defending Freedom, which represents the National Institute of Family and Life Advocates.

This Day in Liberal Judicial Activism—November 16

by Ed Whelan

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

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

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

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

Sleeper SCOTUS Blockbuster may be the Next Kelo

by Carrie Severino

It took many people by surprise when the Supreme Court ignited a firestorm in the now-infamous Kelo case by giving cities the ability to seize personal property from a private owner and give it to a developer for the alleged “public purpose” of increasing tax revenues. The Court will have another chance to rule on key property rights in what may be this term’s sleeper blockbuster: a patent case that has major implications for constitutional due process guarantees and protecting private property.

The Court will be considering the constitutionality of the Patent Trial and Appeal Board (PTAB), an administrative tribunal created in 2011 by the America Invents Act that was supposed to help address concerns that patents were being issued to people who didn’t deserve them because their inventions weren’t truly new or that were too broad.

Congress created the Patent Trial and Appeal Board to make it easier to challenge bad patents and crack down on abusive behavior by so-called “patent trolls.”  Unfortunately, the PTAB has become a roving “patent death squad”– a moniker that has amazingly been embraced by the board’s own former chief administrative judge and is an apt description of a tribunal that invalidates upwards of 70% of the patents it considers. It now threatens to destroy the real bridgebuilders along with the trolls.

From a policy perspective, the PTAB has undermined its own goal. Instead of freeing up the innovation economy, it has created a new set of legal procedures that can be abused to extort money from patent owners and invalidate legitimate patents. The result is exactly the opposite of that intended by the America Invents Act: more litigation, less certainty for inventors, and higher costs of innovation.

But the deeper constitutional problem is that the patent tribunal is taking away people’s property without adhering to our constitutional guarantees of due process, and that could have implications for other types of property rights as well. The PTAB is a constitution-free zone without jury trials, with strict limits on the evidence patent owners may present, and where virtually anyone can challenge a patent, opening the door to rampant abuse.  Rather than making the process more efficient, patent owners can now face challenges on two fronts – at both the PTAB and in the courts.  In an amicus brief for the CATO Institute and the American Conservative Union Foundation, Ilya Shapiro and Greg Dolin write that “the PTAB draws power away from the judicial branch in favor of the executive” and makes all decisions by the courts subject to “revision and modification by the executive branch” – raising serious constitutional issues.

For example, President Obama’s Director of the US Patent and Trademark Office has in some cases convened multiple PTAB panels until she got the result she wanted to invalidate a desired patent.  The tribunal has also permitted hedge fund managers to use the administrative process to manipulate the market, short-selling stocks and then filing challenges to induce a drop in stock prices. Challengers can also file repetitive attacks on the same patent, ironically increasing costs to the innovation economy instead of decreasing litigation costs. It’s a one-way ratchet: a win for a patentholder is still subject to repeated attacks, but a win for the challenger is final.

Imagine a world in which the ownership of your home faced the same risk – a disgruntled neighbor, ex-spouse, or frustrated would-be purchaser could attack your ownership rights repeatedly before a judge that views his job as “death-squadding” real estate titles and with procedures that favor the challenger. Such a system would dramatically increase the costs required to maintain one’s home, while the uncertainty clouding any title would lower the value of housing overall. That would be just as damaging to the housing market as it has been for the innovation economy.

The government’s chilling defense of the PTAB system is to claim that they don’t even owe patent owners due process in the first place, because patents are simply grants from the government and not private property. But that argument ignores centuries of history and Supreme Court precedent, and creates the danger of eroding property rights just as surely Kelo did.

The goal of the America Invents Act was a good one, aimed at bolstering the legitimate property rights of patent owners. But in this case the cure is worse than the disease and has created an out of control administrative tribunal that undermines constitutionally protected property rights. If the Supreme Court allows the government to start exempting whole categories of property from constitutional protection, we will all be the poorer for it.​

This Day in Liberal Judicial Activism—November 15

by Ed Whelan

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

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

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

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

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

Judicial Nominations Update

by Carrie Severino

Senate Judiciary Committee Chairman Chuck Grassley continues to process nominees at a consistent pace. Last Thursday, five judicial nominees (including Greg Katsas, nominee to the especially significant U.S. Court of Appeals for the D.C. Circuit) were voted out of committee and joined the sixteen other judicial nominees currently awaiting Senate floor votes. Tomorrow morning, Senate Judiciary Committee hearings are scheduled for an additional six judicial nominees (including two nominees to the U.S. Circuit Court of Appeals for the Fifth Circuit, Don Willett and James Ho). Also tomorrow, Pamela Bresnahan, Chair of the ABA’s Standing Committee On The Federal Judiciary, will testify before the Senate Judiciary Committee about the ABA’s questionable rating of L. Steven Grasz, nominee to the U.S. Court of Appeals for the Eighth Circuit.

Senate Majority Leader Mitch McConnell also continues to move judicial nominees and announced his intent to hold cloture and confirmation votes this week for two federal district court nominees.

Here is this week’s full update on federal judicial nominations.

Number of total current and known future vacancies: 161

Courts of Appeals: 23

District/Specialty Courts*: 138

Number of pending nominees for current and known future vacancies: 49

Courts of Appeals: 10

District/Specialty Courts: 39

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

Nominees Awaiting Floor Votes

Courts of Appeals: 1

District/Specialty Courts: 20

Nominees Confirmed by the Senate

Supreme Court: 1

Courts of Appeals: 8

District/Specialty Courts: 4

This Day in Liberal Judicial Activism—November 14

by Ed Whelan

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

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

Re: Telltale Talley Tally

by Ed Whelan

Yet more imposition of a double standard against federal judicial nominee Brett Talley:

The New York Times complains today that Talley “did not disclose on publicly available congressional documents that he is married to a senior lawyer in the White House Counsel’s Office.”

1. One good reason for Talley not to have included that information on his Senate questionnaire response is that it is not in fact responsive to any of the questions posed.

The article suggests that he should have mentioned his wife, Ann Donaldson, in response to the question (24.a) asking him to identify “family members … that are likely to present potential conflicts-of-interest.” It states that decisions by district judges “can put them at odds with the White House and its lawyers.”

But Talley, as deputy assistant attorney general in the Office of Legal Policy in the Department of Justice, will already have potential conflicts of interest that arise from his service in the Trump administration. In what foreseeable case is his wife’s role in the White House going to present a conflict that wouldn’t already exist?

The article states that Donaldson “has emerged in recent weeks as a witness in the special counsel’s investigation into whether Mr. Trump obstructed justice.” But who imagines that any litigation over that matter will be pursued in the Middle District of Alabama?

Further, the Senate Judiciary Committee has long been content with a nominee’s general statement to evaluate potential conflicts as they arise. To cite just one example: When President Obama nominated Cornelia Pillard to the D.C. Circuit, Pillard didn’t bother to note that her husband David Cole frequently litigates in the D.C. Circuit, and no one faulted her for failing to identify the potential conflict. So why the double standard with Talley?

The article also states that Talley “did not mention his wife when he described his frequent contact with White House lawyers during the nomination process.” Perhaps that’s because Talley’s “descri[ption] of his frequent contact with White House lawyers” was limited to this:

On July 12, 2017, I interviewed with attorneys from the White House Counsel’s Office and the Office of Legal Policy. Since then I have been in contact with officials from the White House Counsel’s Office and the Office of Legal Policy.

Perhaps that’s because of the unsurprising fact that, as an Administration source confirms for me, his wife played no role in his nomination process.

2. There was hardly any secret about the fact that Talley was married to White House lawyer Ann Donaldson. Above the Law reported on their marriage and on their positions in the Trump administration way back in April. Such information would surely have been in the FBI report available to senators and their staff.

Re: ABA Committee Smokes Grasz

by Ed Whelan

With respect to the ABA’s smearing of Eighth Circuit nominee Steve Grasz as “not qualified” (see my Parts 1, 2, and 3), I somehow missed this op-ed two weeks ago by senior federal district judge Richard G. Kopf. Kopf says he was “stunned” by the ABA’s report on Grasz, and he makes clear his strong disagreement with that rating. Kopf reveals that he advised the ABA that Grasz is “well qualified” for the nomination, and he further states (among other things) that Grasz “is by all accounts a brilliant and honorable person.”

Kopf’s assessment is particularly noteworthy because, as Kopf points out, his assessment of Grasz as well qualified “was based primarily upon his appearances before me when he served in the Nebraska Attorney General’s Office, and particularly regarding litigation over Nebraska’s abortion laws.” (Emphasis added.) Rejecting Grasz’s arguments, Kopf ruled that Nebraska’s ban on partial-birth abortion was unconstitutional, and (as he also points out) he wrote a law-review article taking issue with Grasz’s view of how the Supreme Court’s abortion precedents applied in this context.

In other words, Kopf wouldn’t be expected to be well disposed towards Grasz, and he is also very familiar with the matters that are at the heart of the ABA’s criticism. That he nonetheless regards Grasz as well qualified is worth far more than the ABA’s incompetent criticisms.

Telltale Talley Tally

by Ed Whelan

The work of a federal district judge involves specialized trial-related skills—e.g., managing the flow of a trial—so I think that it’s eminently sensible to want nominees for federal district judgeships to have substantial trial experience.

For that reason, I would not quarrel with those who object to the nomination to the district court of a thirty-something who has essentially no trial experience and who has been out of law school less than eleven years. Indeed, those objections are all the more weighty when that person has been nominated to one of the most challenging district courts in the country.

So, yes, there was plenty of reason to object to President Obama’s nomination of Alison Nathan to a federal district judgeship on the Southern District of New York in March 2011. But somehow there wasn’t any uproar back then. The American Bar Association’s judicial-evaluations committee smoothed the way, as it abandoned its own stated criteria in giving Nathan a majority “qualified” (and minority “not qualified”) rating. And the Senate confirmed Nathan’s nomination on a party-line vote.

Things are very different with President Trump’s nomination of Brett Talley to a judgeship on the Middle District of Alabama (in his eleventh year out of law school).

Abiding by its criteria this time, the ABA rated Talley “not qualified” on the ground that he “does not presently have the requisite trial experience or its equivalent.” (In its letter to the Senate Judiciary Committee, the ABA added that it “did not have any questions about Mr. Talley’s integrity or temperament” and that it “believes that, given the passage of time and the appropriate experience, Mr. Talley has great potential to serve as a federal judge.”)

The media have also piled on, with headlines in the New York Times and the Los Angeles Times both blaring that Talley “has never tried a case.” (Neither reporter, a Trump administration source tells me, bothered to request comment from the administration.)

There’s plenty of room to quibble over whether Nathan or Talley had greater experience. On the one hand, Talley’s two years as a clerk for a district judge gave him far greater exposure to the work of a federal trial court than Nathan’s four years as a back-office litigation associate. Further, in his two years as Alabama’s deputy solicitor general, Talley handled some of the most important litigation involving the state, including overseeing its participation in complex nationwide litigation in federal district and circuit courts. In addition to filing ten Supreme Court briefs, he also argued three appeals in the Eleventh Circuit and one in the state court of appeals. On the other hand, Nathan had more years of actual practice. (Some might also see her clerkship with Justice John Paul Stevens as a marker of exceptional quality; in this regard, I’ll note that folks whose judgment I trust tout Talley’s abilities as extraordinary.)

My point here, though, is not to argue that Talley is objectively more qualified for his nomination than Nathan was for hers. Nor will I argue here against those who regard both to have had a deficient level of trial experience. But (the ABA committee notwithstanding) I don’t think it plausible to maintain that the line between sufficient experience and deficient experience runs between Nathan and Talley. Nor would I foreclose the possibility with Talley, any more than others foreclosed it with Nathan, that extraordinary ability might well offset such a deficiency. In any event, the double standard on the Left is not something that should be tolerated or acquiesced in.

This Day in Liberal Judicial Activism—November 13

by Ed Whelan

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination.

This Day in Liberal Judicial Activism—November 12

by Ed Whelan

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.

1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

This Day in Liberal Judicial Activism—November 11

by Ed Whelan

2014What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

One other peculiarity: According to a letter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments.