This Day in Liberal Judicial Activism—December 29

by Ed Whelan

1965—In Scenic Hudson Preservation Conference v. Federal Power Commission, a Second Circuit panel abandons the traditional requirement that a plaintiff, in order to establish standing, must allege a concrete and particularized injury that is actual or imminent. In a ruling authored by Judge Paul R. Hays, the court declares that “those who by their activities and conduct have exhibited a special interest” in “the aesthetic, conservational, and recreational aspects of power development” have standing to challenge the Federal Power Commission’s grant of a license to a company to construct a hydroelectric project on the Hudson River.

2014—Twenty-five years after Eric Owen Mann murdered two men in cold blood, Ninth Circuit judges Sidney R. Thomas and Stephen Reinhardt combine to rule (in Mann v. Ryan) that Mann is entitled to habeas relief on his claim that his counsel’s performance at the sentencing phase of his trial was constitutionally deficient. In dissent, Judge Alex Kozinski observes:

Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.” In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

In August 2015, the Ninth Circuit will grant en banc review of the panel ruling, and in July 2016, it will repudiate the panel ruling.

This Day in Liberal Judicial Activism—December 28

by Ed Whelan

2005—“Allah” yes, “Christ” no. Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers. Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”

In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).

This Day in Liberal Judicial Activism—December 27

by Ed Whelan

1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis. The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement. (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.” He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.” “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.” But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier. In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career: “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.” Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”

This Day in Liberal Judicial Activism—December 25

by Ed Whelan

1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible. 

More Bad PC at the University of Missouri

by Roger Clegg

An interesting lawsuit was filed earlier this week against the University of Missouri medical school, in which an administrator there says she was fired for having the temerity to suggest that the racially preferential policies being suggested might raise legal problems and ought to be reviewed by the school’s counsel.

Appalling. Such review is the bare minimum that any school engaging in such discrimination ought to undertake. Anything else is likely illegal, because the Supreme Court has warned that any use of race must be “narrowly tailored,” and whether that standard is met will ordinarily require a legal analysis. That someone would be fired for asking for school counsel’s opinion is disgusting policy and grossly unfair, whatever its legality.

More: Kim McLane Wardlaw Makes Her Mark

by Ed Whelan

As foreseen, the Supreme Court, in a unanimous per curiam opinion, has summarily reversed the divided Ninth Circuit ruling that would have required the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy. That’s yet another extraordinary slapdown of Ninth Circuit judge Kim McLane Wardlaw, who co-authored the Ninth Circuit ruling.

Year-End Invitation

by Ed Whelan

Please indulge my once-a-year pitch:

If you enjoy my posts here on Bench Memos and appreciate the impact that I’m having on the broader debate on constitutional issues and judicial confirmations, then I invite you to support the Ethics and Public Policy Center (in addition to supporting National Review). It’s my full-time position as president of EPPC that pays my salary and enables me to carry out my work, both here and elsewhere. Plus, I have a great team of colleagues at EPPC, including frequent NRO contributors George Weigel, Mona Charen, Yuval Levin, and Stanley Kurtz.

Farr-Fetched Attack

by Ed Whelan

In mid-October, the Senate Judiciary Committee favorably reported to the Senate floor President Trump’s nomination of Thomas A. Farr to a federal district vacancy in the Eastern District of North Carolina. The Left is now trying to stall further action on the Farr nomination on the flimsiest of grounds.

In 1990, the Department of Justice filed a complaint charging the 1990 Helms for Senate Committee with intimidating black voters in violation of the Voting Rights Act of 1965. The complaint alleged that the campaign sent postcards to black voters suggesting that they were ineligible to vote and could be prosecuted for voter fraud if they voted.

In answer to a written question from Senator Feinstein (see Q3 here), Farr testified that he played no role in the campaign’s decision to send the contested postcards and that he did not learn about the postcards until the Department of Justice sent a letter of complaint to the campaign and the campaign manager then called him for legal advice.

Gerald Hebert, who worked in DOJ in 1990, disputes Farr’s answer and claims that Farr “was certainly involved in the scheme as it was being developed.” In support of his claim, Hebert cites an entry he made in his diary back in 1990. That entry refers, among other things, to a meeting in Raleigh in “10/16 week” that appears to attribute to Farr the propositions that “Postcards [are of] limited use,” that the campaign “Need[s] to focus [given] only 3 weeks left Before Election Day,” that the state election boards “will be our Ballot Secur[ity],” and that “Postcards can be used for post[-]election challenges.”

Two new letters—one from Carter Wrenn, the Helms campaign manager in 1990, the other from Farr himself, responding to questions from Senator Cory Booker—demolish Hebert’s claim.

In his letter to Senator Thom Tillis, Wrenn indicates that Hebert is conflating into a single “scheme” two very different events. Farr was among those at a meeting “on October 16th or 17th” with a consultant proposing to do a ballot-security program. Among the ideas the consultant raised at the meeting was a postcard mailing to identify voters who no longer lived at their registered address. As Farr testifies in his letter, he told the meeting participants that “there was no reason to do a card mailing in 1990 because North Carolina law had been changed and returned cards could not be used to challenge voters.” (He also said that the campaign “might decide to attempt to use returned cards in a recount,” though he “was doubtful of the utility of any card mailing, even in a recount.”)

As Wrenn explains, a second and separate undertaking was the postcard mailing that was the target of the DOJ complaint. Specifically, in “late October of 1990, one of the staff brought me a copy of the postcard they wanted to mail for me to approve”:

It was near the end of the election, there was a new problem very five minutes, and the postcard sat on my desk a couple of days until the staffer returned and said, You need to approve that card today. I said, Go ahead and send it. Instead of stopping to think, review the card, or seek a legal opinion, I said send it.

Wrenn confirms Farr’s testimony that he first contacted Farr about the postcard after receiving a DOJ letter about it: “Up until that time, Tom hadn’t seen the card that had been mailed, did not know it had been mailed, or know who it was mailed.” As Wrenn points out, “the actual postcard that was mailed could not have been discussed [at the mid-October meeting] because it did not exist at the time.”

In his letter, Farr forcefully reiterates that he “played no role whatsoever in drafting the [contested] card, providing counsel on the card, deciding to mail the card, or identifying those who would receive the card.” Indeed:

When I first saw the language on the card after it had been mailed and was advised as to whom it had been mailed, I was appalled. I immediately recommended that the Helms Committee cancel their 1990 ballot security program which they did. I then spent the next several months working with the Justice Department to resolve the matter with a consent decree.

As Farr points out, the fact that the Justice Department, after its extensive investigation, did not name him as a defendant in its civil action reflects and confirms the simple reality that he was not involved in any way with the postcard—that he “did not know about the mailing of the card, its contents, or its recipients until after it had been mailed.”  

I’ll further highlight that Farr received a unanimous “well qualified” rating from the American Bar Association’s judicial-evaluations committee, which means, per the ABA Backgrounder, that it determined (among other things) that he has the “highest reputation for integrity.” (There is no inconsistency in crediting the ABA’s favorable ratings of conservative nominees and being suspicious of its unfavorable ratings of them, as the very concern is that the ABA is biased against conservative candidates.)

By the way, according to this Huffington Post article trumpeting Hebert’s claim, Hebert “didn’t work on the case [concerning the controversial postcard] directly.” Rather, he “talked frequently with the two lawyers who did,” and his diary entries reflect his understanding of what they told him. Further, far from being a neutral observer, Hebert works for the Campaign Legal Center, which has litigated against Farr on election matters, and one critic of Hebert has criticized his “history of making things up about racial issues.”

This Day in Liberal Judicial Activism—December 20

by Ed Whelan

1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples.

2013—On the bench for barely a year, federal district judge Robert James Shelby refuses even to stay pending appeal his ruling that Utah’s marriage laws violate the federal Constitution. Shelby’s effort to sow chaos and thus alter the terrain while the appeal of his ruling is underway succeeds until the Supreme Court, more than two weeks later, finally blocks his ruling pending the completion of the appeals process.

What’s Eating Senator Kennedy?

by Jonathan H. Adler

Senator John Kennedy (R-LA) has emerged as an outspoken and effective critic of President Trump’s judicial nominees. He is the lone Republican Senator to have voted against one of the Trump Administration’s appellate nominees (Greg Katsas, who was nonetheless confirmed to the U.S. Court of Appeals for the D.C. Circuit), and he led the charge against some of the Administration’s district court nominees, three of which have been withdrawn. 

While Senator Kennedy presents himself as a guardian of judicial virtue seeking no more than to ensure all judicial nominees are suitably qualified, some suspect other factors may be at work. At one recent Senate Judiciary Committee hearing, the Senator seemed irked that the Administration had nominated a well-regarded appellate litigator for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit instead of tapping one of the Senator’s friends from back home. 

An article in today’s Washington Post ponders reasons Senator Kennedy may have for attacking Trump’s judicial nominees beyond legitimate concerns about qualifications. As the article notes, the pattern of Kennedy’s attacks suggest he may be harboring a personal grudge against the White House counsel’s office and may have home-state electoral ambitions. While it is reasonable to argue that district court nominees lacking meaningful trial court experience are unqualified, any charge that Katsas was unqualified or unsuited for the federal bench is simply absurd. So there’s ample reason not to take all of Senator Kennedy’s concerns at face value.

This Day in Liberal Judicial Activism—December 19

by Ed Whelan

2002—On remand from a U.S. Supreme Court decision holding that Erie’s ban on public nudity does not violate the First Amendment, the Pennsylvania supreme court rules (in Pap’s A.M. v. City of Erie) that the ban’s targeting of nude dancing violates the state constitution’s guarantee of freedom of expression (which provides that “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty”).

2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to restore the state’s definition of marriage as a male-female union.

Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the Supreme Court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California: one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

2013—The five justices of the New Mexico supreme court unanimously rule (in Griego v. Oliver) that the New Mexico constitution requires that “same-gender couples” be allowed to marry.

This Day in Liberal Judicial Activism—December 18

by Ed Whelan

1997Best is worst. Best v. Taylor Machine Works, that is.

In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation.

In twisted confusion over which branch has the authority to make law, the court also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.” Under the “special” legislation pretense, it further strikes down the act’s abolition of the common-law doctrine of joint and several liability. And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”

On the Nomination of Matthew Petersen

by Carrie Severino

Matthew Petersen, President Trump’s most recent nominee to the U.S. District Court for the District of Columbia (“D.D.C.”), has come under fire following an exchange with Senator Kennedy, in which Senator Kennedy asked a series of questions designed to demonstrate that Peterson has not practiced as a trial lawyer.

Following that exchange, a parade of critics have argued that he lacks the qualifications to serve on the D.D.C. But does he?

Petersen currently serves as a Commissioner on the Federal Election Commission (“FEC”), and previously served as its Chairman, jobs that gave him significant exposure to the sort of regulatory cases that the D.D.C regularly decides. But apart from that, he has legal experience that matches or exceeds that of past nominees confirmed to federal district courts, including the D.D.C., and none other than the American Bar Association gave him a unanimous qualified rating.

By comparison, at the time of her nomination, now-Judge Alison Nathan of the Southern District of New York, one of the most prestigious district courts in the country, had never appeared in court and had eleven years of professional legal experience—short of the twelve years recommended by the ABA. In 2013, President Obama nominated Kentanji Jackson to the D.D.C. despite the fact that, according to her own filing with the Senate Judiciary Committee, she had not been responsible for trying cases; nor had she handled any cases that were tried to verdict. Judge Jackson was confirmed by a voice vote a mere two months after she was nominated. Likewise, Judge Jackson’s colleague on the D.D.C., Judge Randolph Moss, had tried one case to verdict at the time of his nomination by President Obama in 2014. Moss was confirmed 54-45.

I don’t remember CNN playing endless loops of commentary on the qualifications of Judge Nathan, Judge Jackson, or Judge Moss. Maybe they will now that they have discovered the virtues of the jury trial.

Petersen’s credentials to be a U.S. District Court judge in D.C. exceed those of these other (confirmed) Obama nominees. Following his graduation from the University of Virginia School of Law, Petersen worked at Wiley Rein LLP for several years, which is renowned for its regulatory practice. Petersen left Wiley Rein in 2002 to work on Capitol Hill, serving first as Counsel to the U.S. House of Representatives Committee on House Administration and then as Chief Counsel to the U.S. Senate Committee on Rules and Administration, one of the most consequential committees in that body. His work on the Hill included assistance drafting of the Help America Vote Act of 2002. So unlike most judicial nominees, he brings to his nomination rich legislative experience in both houses of Congress.

Petersen’s government service was not limited to one branch of government. Following his work in Congress, he has spent nearly a decade as a Commissioner of the FEC, serving twice as Chairman during his tenure. As a Commissioner, Petersen is responsible for administering and enforcing the Federal Election Campaign Act and Commission regulations. Although the nature of Petersen’s legal career has meant that he has not had the opportunity to appear in court, as an FEC Commissioner Petersen has extensive experience adjudicating cases at a major independent regulatory agency that in many ways mirrors a trial court: administrative agencies have discovery, motions, trial-like hearings governed by procedural and evidentiary rules, and post-trial appeals.

The relationship of such experience to the job of a trial judge led the ABA’s Standing Committee on the Federal Judiciary to explain in its evaluation criteria that “[d]istinguished accomplishments in the field of law or experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards . . . —may compensate for a prospective nominee’s lack of substantial courtroom experience” (emphasis added). The ABA has not applied that criteria very even-handedly when it comes to conservative nominees, but that has not stopped the left from adhering to it as the gold standard for determining a nominee’s fitness for judicial service.

Furthermore, Petersen’s role as an FEC Commissioner has involved supervising FEC litigation before federal courts in the jurisdiction to which he has been nominated—from the D.D.C. to the U.S. Court of Appeals for the D.C. Circuit to the U.S. Supreme Court. Petersen has been involved with developing litigation strategy and editing briefs, motions, and other filings. Here are just a few of the major FEC cases that Petersen has overseen in the court to which he has been nominated, all of which would go on to be affirmed by the Supreme Court: Republican Party of Louisiana v. FEC, 219 F.Supp.3d 86 (D.D.C. 2016) (involving a challenge to soft money restrictions applicable to state party committees); Independence Institute v. FEC, 216 F.Supp.3d 176 (D.D.C. 2017) (involving an as-applied challenge to the Federal Election Campaign Act’s electioneering communications provisions); and Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011) (involving the constitutionality of the ban on foreign nationals making contributions and expenditures in connection with federal elections). And the list happens also to include the two most important Supreme Court cases concerning campaign finance and the First Amendment over the last decade: Citizens United v. FEC, 558 U.S. 310 (2010); and McCutcheon v. FEC, 572 U.S. __, 134 S. Ct. 1434 (2014).

Petersen’s extensive regulatory experience is all the more valuable for his nomination to the D.D.C, which hears more administrative law cases than any other federal district court in the country. Where Congress has authorized a district court challenge to an agency action, the cases have obvious jurisdiction in the District of Columbia, where all federal agencies are located (and many if not most of these cases are in fact brought in the D.D.C.). Less than one percent of the district’s docket during the previous fiscal year consisted of jury trials.

Say what you want about Peterson’s exchange with Senator Kennedy, and whether he should have done a better job of answering questions or informing the Senator about the depth and relevance of his experience. The fact remains that there are three branches of the federal government and Peterson has distinguished himself in two of them while being extensively involved in the work of the third. Serving as a member of a major regulatory commission like the FEC, and also as its chairman, is an extraordinary experience that very few lawyers ever achieve, and it relates directly to the kind of work Peterson would be doing on the D.D.C.

Judicial Nominations Update

by Carrie Severino

President Trump, Senate Majority Leader Mitch McConnell, and Senate Judiciary Committee Chairman Chuck Grassley made history this week, as the Senate confirmed L. Steven Grasz, Don Willett, and James Ho (the tenth, eleventh and twelfth circuit court nominees confirmed this year). This represents the most federal circuit court nominees ever confirmed during a president’s first year in office. The President, Leader McConnell, and Chairman Grassley have made a significant and lasting impact on our federal courts through their efforts to confirm outstanding federal judges over the course of this year, and deserve recognition for this historic achievement.

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

Number of current and known future vacancies: 163

Courts of Appeals: 19

District/Specialty Courts*: 144

Number of pending nominees for current and known future vacancies: 43

Courts of Appeals: 6

District/Specialty Courts: 37

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

Nominees Awaiting Floor Votes: 25

Courts of Appeals: 0

District/Specialty Courts: 25

Nominees Confirmed by the Senate: 19

Supreme Court: 1

Courts of Appeals: 12

District/Specialty Courts: 6

This Day in Liberal Judicial Activism—December 15

by Ed Whelan

2015—In the face of uniform rulings of the federal courts of appeals holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, California federal district judge Dean D. Pregerson rules that Title IX’s bar on sex discrimination by schools receiving federal funds is a bar on sexual-orientation discrimination.

Pregerson doesn’t suggest that there is any reason to read Title IX differently from Title VII on this point. On the contrary, he invokes Ninth Circuit precedent holding that the legislative history of Title IX “strongly suggests that Congress meant for similar substantive standards” to apply under the two statutes, and he affirmatively relies on the EEOC’s recent Title VII ruling that contradicts the uniform federal appellate rulings.

Ho, Ho, Ho!

by Ed Whelan

With the Senate’s confirmation today of Fifth Circuit nominee James Ho, President Trump has now had twelve nominees to the federal court of appeals confirmed this year – on top, of course, of the confirmation of Supreme Court justice Neil Gorsuch. Twelve sets a record (I’m reliably informed) for the most federal appellate nominees ever confirmed during a president’s first year in office.

Congratulations go first and foremost to President Trump but also to Senate majority leader Mitch McConnell, Senate Judiciary Committee chairman Chuck Grassley, and White House counsel Don McGahn. Special credit also goes to former Senate majority leader (and Democrat) Harry Reid, whose leadership in abolishing the filibuster for lower-court (and executive-branch) nominees back in November 2013 paved the way for this achievement.

The caliber of the confirmed appellate judges is as impressive as their number. Overall, they have excellent credentials (seven of the twelve, by my quick count, clerked for Supreme Court justices) and reputations, and six of the twelve are on Trump’s list of Supreme Court candidates.

This Day in Liberal Judicial Activism—December 14

by Ed Whelan

2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth: The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.” Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations. The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

This Day in Liberal Judicial Activism—December 13

by Ed Whelan

1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972.

In the meantime, the Court issues its ruling in Eisenstadt v. Bairdwhich extends a right to contraception to unmarried persons. (See This Day for March 22, 1972.) Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple of extraneous words: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

2013—“To put it simply, polygamy is now lawful in Utah.” That’s how the winning attorney for Cody Brown and his “Sister Wives” of reality-show fame celebrates federal district judge (and Bush 43 appointee) Clark Waddoups’s remarkably strange and rambling opinion in Brown v. Buhman.

Beyond relying extensively on leftist academic Edward Said’s theory of “orientalism,” Waddoups rejects the Utah Supreme Court’s authoritative reading of one part of Utah’s anti-bigamy statute, and he unpersuasively concludes that the cohabitation prong of the statute has been enforced in a discriminatory manner against those engaged in “religious cohabitation.”

In May 2016, the Tenth Circuit will rule that Waddoups should have dismissed the case as moot after prosecutors adopted a policy under which Brown and his wives would not face prosecution. The Tenth Circuit orders Waddoups to vacate his judgment.

This Day in Liberal Judicial Activism—December 12

by Ed Whelan

2013—Some things are most fittingly done in the dark of night. Shortly after midnight, the Senate, with 51 yea votes, confirms President Obama’s nomination of hard-left law professor Cornelia Pillard to the D.C. Circuit.

The confirmation of Pillard follows in the wake of Senate Democrats’ abolition of the judicial filibuster. Even three Senate Democrats vote against the Pillard nomination, and not a single Republican votes for it.

During her confirmation process, Pillard was described by some lawyers who know her well as “Reinhardt in a skirt but less moderate” (that’s a reference to Ninth Circuit arch-activist Stephen Reinhardt) and as someone who threatens to be “the most left-wing judge in the history of the Republic.”

Scalia Speaks Events in Alabama, Pensacola, and Dallas

by Ed Whelan

I have a busy week on the road discussing Scalia Speaks.

As it happens, I’ll be in Alabama tomorrow (Tuesday, December 12)—the day of the special Senate election between Roy Moore and Doug Jones—for a lunchtime event with the Birmingham lawyers chapter of the Federalist Society. (Time allowing, I hope to visit the civil-rights history museum in Birmingham.)

On Wednesday, I have a lunchtime event with the Federalist Society’s Montgomery lawyers chapter and an evening event in Pensacola with its Emerald Coast lawyers chapter.

Then on to Dallas on Thursday for an evening event co-sponsored by the Dallas and Fort Worth lawyers chapters of the Federalist Society.