This Day in Liberal Judicial Activism—May 13

by Ed Whelan

1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.


“A Big Fix: Should We Amend Our Constitution?”

by Michael Stokes Paulsen

I have the pleasure of participating today (in just a few hours) in a conference at Stanford Law School, sponsored by the Stanford Constitutional Law Center – headed by my old friend, the illustrious Professor and former Tenth Circuit Court of Appeals Judge Michael W. McConnell. 

The conference’s theme is “A Big Fix: Should We Amend Our Constitution?”  Conference attendees were invited to propose big-deal proposed amendments to the U.S. Constitution.  Change something in a major way!  Correct some serious misfire in the U.S. Constitution!  Correct a long-simmering problem!  Repair something you think the framers got badly wrong!  Go wild!  Indulge your fantasies!  Fix the Constitution!

The conference features a great cast of characters, including some of the leading constitutional thinkers of the nation’s law schools: Mary Anne Case, Jane Schacter, Randy Barnett, Laura Donohue, Sandy Levinson, Amy Wax, Michael Greve, Jamal Greene, Richard Pildes, Michael Ramsey, Sai Prakash, Elizabeth Foley, Russ Feingold, George Thomas, Will Howell, Zephyr Teachout, Roman Buhler, Ruth Wedgwood, along with fellows of the Stanford Constitutional Law Center and several Stanford Law School students. 

We’ll see if we change the world over the weekend.  Who knows?  Maybe we’ll convene ourselves into an unauthorized constitutional convention and issue some proposals. 

My own cheeky contribution is a proposed constitutional amendment abolishing judicial activism by prescribing rules-of-construction governing the interpretation and application of the Constitution (original-public-meaning textualism, of course); abrogating stare decisis by specifying that prior judicial decisions contrary to the prescribed interpretive rules would not have any prospective force (even as to lower court judges!); and confirming that, even though the amendment would not reopen any final judicial judgments or dictate specific outcomes in specific cases, other branches and institutions of government are (of course) not bound in their actions by judicial decisions departing from such principles of proper constitutional interpretation. 

My provocative claim is that these are all correct understandings of how the Constitution is to be construed and applied already.  But it doesn’t hurt – and could help a great deal – to embody them explicitly in the Constitution. 

I hope to report next week on how the conference goes – once the Fix is in. 

This Day in Liberal Judicial Activism—May12

by Ed Whelan

2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.


President Trump, Promise Keeper

by Christopher R. Green

President Trump’s announcement on Monday of a new list of judicial nominees was received with acclaim by the conservative legal community as fulfilling a campaign promise to nominate judges committed to the original Constitution. As an originalist legal scholar who has not been shy about criticizing the president in the past, I am obliged to give credit where it is due and to recognize that this promise is one the administration has kept.

The Constitution puts promise-keeping front and center. Everyone who takes office is required by Article VI to make a solemn commitment, by oath or affirmation, to support “this Constitution” — the same one ratified in 1788 and amended only a few times since. That Constitution declares itself the supreme law of the land, the ultimate standard by which other legal claims are measured. In this way, the constitutional oath supplies an unmistakable moral obligation to all those who wield authority, from presidents, legislators, and judges down to the ordinary lawyers who serve as “officers of the court,” not to go beyond their delegated powers under the law. The oath is our constitutional culture’s ultimate common ground.

These obligations would be “parchment barriers,” as James Madison put it, if officeholders could not be trusted to respect them in practice. Last fall, others and I publicly criticized then-candidate Trump, arguing that he had not yet earned the public’s trust. His commitments on judicial nominations, in particular, struck us as ordinary political promises, easily forgotten amid a tumultuous campaign. Although Trump’s list of potential nominees included many jurists with sterling reputations, I had little expectation that he would adhere to it in office.

In practice, however, my prediction turned out to be wrong. In the interests of candor and humility, I must acknowledge that the president and his administration have taken this promise about nominations seriously.

Trump’s first judicial nominee, Justice Neil Gorsuch, was not only among those named on the list but among the most celebrated. Another on that list, District Judge Amul Thapar, was nominated for the Sixth Circuit and has made his commitment to the rule of law clear before the Judiciary Committee. Many of the nominees in Monday’s announcement have attracted similar praise. Michigan’s Justice Joan Larsen and Minnesota’s Justice David Ryan Stras, for example, were among the judges Trump cited as potential Supreme Court nominees; they have now been nominated to the Sixth and Eighth Circuits, respectively.

From my own academic work, I happen to be more familiar with two other nominees — Amy Coney Barrett for the Seventh Circuit and Kevin Newsom for the Eleventh Circuit. Barrett, a widely respected law professor at Notre Dame, has written extensively on the complex relationship between originalism and precedent. Her work makes clear that the original Constitution matters not only to judges, but to every official who takes the oath it prescribes; and she has devoted precise attention to the contours of that obligation. Newsom is well known as an appellate litigator in private practice; but he is also known for a pioneering analysis of the Fourteenth Amendment and its treatment in the Slaughter-House Cases in 1873. His work displays a clear-eyed analysis, an attention to detail, and a dogged willingness to correct longstanding error. These are real lawyers and scholars, not political cronies.

To Madison, a government strong enough to maintain control must be able to control itself. The rule of law, enforced by separated powers as well as the constitutional oath, is one of our chief means of keeping our government in check. In every administration, Republican and Democratic, lawyers and judges are called upon to enforce the obligations our Constitution has imposed since the Founding.

Not everyone who commits to follow the original Constitution arrives at the same view of what it requires. I may not agree on all points with these nominees, and can speak only for myself. But whatever one’s views of the administration, it’s only fair to say that it has already acted with more consideration of the Constitution’s restraints than I anticipated in 2016. In light of my fears from the fall, I am quite happy to see myself proven wrong.

— Christopher R. Green is an associate professor of law and the H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi. He has published widely on constitutional theory, the Article VI oath, and the Fourteenth Amendment.

This Day in Liberal Judicial Activism—May10

by Ed Whelan

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.” After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.

2011—In what Chief Judge Alex Kozinski’s dissent labels an “Article III putsch,” Ninth Circuit outlaw Stephen Reinhardt issues a 77-page majority opinion (in Veterans for Common Sense v. Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an en banc panel of the Ninth Circuit will reverse Reinhardt by a 10-1 vote, with even all five Clinton appointees on the panel voting against Reinhardt.

Wrong on Every Count: William Watkins, Jr. on the Trinity Lutheran Case

by Michael Stokes Paulsen

Last week, the Wall Street Journal published a bizarre op-ed by William Watkins Jr. on the Trinity Lutheran Church v. Comer case, entitled “A Case the Justices Shouldn’t Have Heard.”  Trinity Lutheran was argued before the Supreme Court just a few weeks ago, on April 19.  It now awaits decision. 

Watkins argues that the case presents merely a state law issue, never should have been in federal court in the first place, never should have been heard by the Supreme Court, and is now moot.  Essentially everything Watkins says about the case is flatly and egregiously wrong.  Indulge me as I first unpack the case and then Watkins’s errors.

First, for the uninitiated:  Trinity Lutheran involves a Missouri state program, the “Scrap Tire Grant Program,” that provides grants to schools and pre-schools to support the installation of rubber playground surfaces to replace gravel or blacktop.  Trinity Lutheran Church operates a pre-school and daycare. Trinity Lutheran applied for a playground grant, but was denied because its daycare is a ministry of the church Trinity Lutheran was otherwise eligible for the grant.  And there was no serious question that the rubber-playground-resurfacing grant was an entirely secular benefit program.   

The State Department of Natural Resources (DNR) based its rejection of Trinity Lutheran’s application on the Missouri Constitution, as interpreted by the Missouri Supreme Court.  The provision at issue states: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”  

That frames the core constitutional issue presented by the case:  May a state exclude a religious organization from an otherwise neutral, secular government program solely because of the religious identity, values, expression, or mission of that religious group? 

Keep reading this post . . .

Excellent Nominations, Not ‘Outsourcing’

by Ed Whelan

I heartily concur in Carrie Severino’s ardent praise for the federal appellate nominees President Trump announced yesterday. From what I hear, more great picks will be coming soon.

Liberal Harvard law professor Noah Feldman also praises Trump for picking from among the circles of “serious, principled conservatives …, the kind of people who can leave an imprint on the courts for decades.” In particular, he hails Seventh Circuit nominee (and Notre Dame law professor) Amy Coney Barrett, whom he knows from their Supreme Court clerkship year together. Noting that he doesn’t agree with her “on too much, jurisprudentially speaking,” he calls her a “top flight, indeed brilliant lawyer,” “one of the standouts [among the Supreme Court clerks] for the pure power of her legal mind.”                                              

One quibble that I have with Feldman’s piece is that he says that Trump “has outsourced judicial selection thus far to elite conservative lawyers like those of the Federalist Society.” In fact, White House counsel Don McGahn has put together an exceptional team of such lawyers and has established a great process for judicial selection. Key positions at the Department of Justice are also being filled with outstanding conservative lawyers. So rather than outsourcing, Trump deserves credit for bringing so much excellent legal talent into his Administration and for drawing on the excellent advice he is receiving.


Who is Kevin Newsom?

by Carrie Severino

Kevin Newsom is President Trumps’s nominee to the U.S. Court of Appeals for the Eleventh Circuit from Alabama.

Age: 44 (approximate)

Current Position: Partner, Bradley Arant Boult Cummings, LLP (Birmingham, AL)


  • B.A., Samford University (1994), summa cum laude, President’s Cup
  • J.D., Harvard Law School (1997), magna cum laude, Articles Editor, Harvard Law Review

Judicial Clerkships:

  • Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit (1997-1998)
  • Justice David H. Souter of the U.S. Supreme Court (2000-2001)


  • 2001-2003: Associate, Covington & Burling (Washington, DC)
  • 2003-2007: Solicitor General for the State of Alabama (Montgomery, AL)
  • 2007-present: Partner, Bradley Arant, Boult Cummints, LLP (Birmingham, AL)

Notable Matters:  

  • Mr. Newsom has argued four cases in the U.S. Supreme Court, has filed amicus curiae briefs in more than 20 others, and has authored numerous petitions for certiorari and briefs in opposition to certiorari.
  • Outside the U.S. Supreme Court, Mr. Newsom has argued more than 30 cases in nine different federal appellate circuits as well as in the Alabama Supreme Court and the Alabama Court of Criminal Appeals.
  • In 2011, Chief Justice John G. Roberts appointed Mr. Newsom to the Advisory Committee on Appellate Rules, which studies and advises the Judicial Conference of the United States concerning amendments and improvements to the Federal Rules of Appellate Proceture.  Mr. Newsom is one of only three private practitioners on the 10-person committee.


Select Awards:  Fellow, American Academy of Appellate Lawyers (since 2016); Chambers USA, Appellate Litigation (since 2015); The Best Lawyers in America (since 2009); American Lawyer Magazine “Fab Fifty: America’s Top 50 Litigators Under Age 45” (2007); Law360 “Rising Star: America’s Top 10 Appellate Lawyers Under Age 40” (2010); Benchmark Litigation, “Litigation Star” (since 2011); Recipient (four-time) National Association of Attorneys General “Best Brief Award, ” given for outstanding briefing in U.S. Supreme Court.

Biographical Notes:  Mr. Newsom is married and has two young children.

Who is John K. Bush?

by Carrie Severino

John K. Bush is President Trump’s nominee to the U.S. Court of Appeals for the Sixth Circuit from Kentucky.

Age: 53 (approximate)

Current Position: Partner, Bingham Greenbaum Doll, LLP (Louisville, KY)


  • B.A., Vanderbilt University (1986), summa cum laude, Phi Beta Kappa
  • J.D., Harvard Law School (1989), cum laude; Ames Moot Court Finalist; Executive Editor, Harvard Journal of Law and Public Policy

Judicial Clerkships: Judge J. Smith Henley of the U.S. Court of Appeals for the Eighth Circuit (1989-1990)


  • 1990-1996: Associate, Gibson, Dunn & Crutcher LLP (Washington, D.C.)
  • 1996-2012: Member, Greenbaum, Doll & McDonald, PLLC (Louisville, KY)
  • 2012-present: Partner, Bingham Greenbaum Doll, LLP (Louisville, KY)

Notable matters

  • Mr. Bush’s practice has focused on complex litigation, including antitrust, securities, financial institutions, insurance, intellectual property and product liability disputes.  He has represented parties in successfully challenging the constitutionality of punitive damages awards.    
  • Mr. Bush was one of former President Reagan’s attorneys during the Iran-Contra investigations. 
  • From 2012-2015, Mr. Bush served on the Advisory Committee on Rules for the U.S. Court of Appeals for the Sixth Circuit.

Awards:  The Best Lawyers in America (Louisville Litigation – Antitrust “Lawyer of the Year,” 2017); The Best Lawyers in America (Louisville Appellate “Lawyer of the Year,” 2017); listed in The Best Lawyers in America in the fields of Appellate Practice, Commercial Litigation; Litigation-Antitrust, Litigation-Banking and Finance, and Litigation-Intellectual Property (2007-2017), Benchmark Litigation, “Future Star” (2016, 2017); recognized as a Kentucky Super Lawyer (2007-2017).

Biographical Notes:  Mr. Bush is married and has children.

Who is Amy Coney Barrett?

by Carrie Severino

Amy Coney Barrett is President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit from Indiana.

Age:  45 (approximate)

Current Position:  Professor of Law, and Diane and M.O. Miller II Research Chair in Law, Notre Dame Law School (South Bend, IN)


  • B.A., Rhodes College (1994), magna cum laude; Phi Beta Kappa, Most Outstanding English Major; Most Outstanding Senior Thesis
  • J.D., Notre Dame Law School (1997); summa cum laude; recipient, Hoynes Prize (awarded to the graduate with the best record in scholarship, deportment, and achievement); Dean’s Award (best exam in Administrative Law, Civil Procedure I and II, Constitutional Law, Contracts, Criminal Procedure, Evidence, First Amendment, Torts II, and Legal Research and Writing); Executive Editor, Notre Dame Law Review; Kiley Fellow (full tuition fellowship)

Judicial Clerkships:

  • Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit (1997-1998)
  • Associate Justice Antonin Scalia of the U.S. Supreme Court (1998-1999)


  • 1999-2000:  Associate, Miller Cassidy, Larroca & Lewin (merged with Baker Botts in 2000) (Washington, D.C.)
  • 2000-2001:  Associate, Baker Botts LLP (Washington, D.C.)
  • 2001-2002:  John M. Olin Fellow in Law, Adjunct Faculty, George Washington University Law School (Washington, D.C.)
  • 2002-present:  Assistant Professor of Law, Associate Professor of Law, Professor of Law, and Diane and M.O. Miller II Research Chair in Law, Notre Dame Law School (South Bend, IN)

Notable matters

  • Ms. Barrett teaches and researches in the areas of federal courts, constitutional law, and statutory interpretation.  Her scholarship in these fields has been published in leading journals, including the Columbia Law Review, Virginia Law Review, and Texas Law Review.  Her recent publications include Congressional Insiders and Outsiders, U. Chi. L. Rev. (forthcoming 2017), Originalism and Stare Decisis, 92 Notre Dame Law Review (forthcoming 2017) and Congressional Originalism, 19 U. Penn J. of Const. Law (2017). 
  • From 2010-2016, she served by appointment of the Chief Justice on the Advisory Committee for the Federal Rules of Appellate Procedure. 

Awards:  Distinguished Professor of the Year (2006, 2016)

Who is Justice David Stras?

by Carrie Severino

David Stras is President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit from Minnesota.

Age: 44 (approximate)

Current Position: Associate Justice, Minnesota Supreme Court (St. Paul, MN)


  • B.A., University of Kansas (1995), highest distinction
  • M.B.A., University of Kansas (1999)
  • J.D., University of Kansas School of Law (1999), Order of the Coif, Editor-In-Chief, Kansas Law Review Criminal Procedure Edition

Judicial Clerkships:

  • Judge Melvin Brunetti of the U.S. Court of Appeals of the Ninth Circuit (1999-2000)
  • Judge J. Michael Luttig of the U.S. Court of Appeals of the Fourth Circuit (2000-2001)
  • Associate Justice Clarence Thomas of the United States Supreme (2002-2003)


  • 2001-2002:  Associate, Sidley Austin Brown & Wood LLP (Washington, D.C.)
  • 2004-2010:  Associate Professor of Law, University of Minnesota Law School; Co-director, Institute for Law and Politics; Associate Professor of Political Science, University of Minnesota (Minneapolis, MN)
  • 2010-present:  Associate Justice, Minnesota Supreme Court (initially appointed by Gov. Pawlenty, later elected to a six-year term in 2012) 

Notable Matters:  

  • As a law professor, Justice Stras taught and wrote in the areas of federal courts and jurisdiction, constitutional law, criminal law, and law and politics. 
  • Stras’ law review articles have appeared in many academic journals, including the Cornell Law Review, Texas Law Review, Georgetown Law Journal, Northwestern Law Review, Constitutional Commentary, and the Minnesota Law Review.
  • While he was a on the faculty at the University of Minnesota Law School, Justice Stras was also a Counsel in the Appellate Advocacy Group at Faegre & Bensen, LLP in Minneapolis.

Awards: Stanley V. Kinyon Tenure Track Teacher of the Year, University of Minnesota Law School (2006).

Biographical Notes:  Justice Stras is married and has two children.  Through his father, he is related to Holocaust survivors from Hungary and Germany.  Justice Stras is believed to be the first Jewish justice to sit on the Minnesota Supreme Court.

Who is Justice Joan Larsen?

by Carrie Severino

Joan Larsen is President Trump’s nominee to the U.S. Court of Appeals for the Sixth Circuit from Michigan.

Age: 48

Current Position: Justice on the Michigan Supreme Court (Lansing, MI)


  • B.S., University of Northern Iowa (1990)
  • J.D., Northwestern University School of Law (1993); magna cum laude (first in class); Recipient, John Paul Stevens Award for Academic Excellence; Recipient, Lowden-Wigmore Prize (Best Student Note); Recipient, Raoul Berger Prize (Best Senior Research Paper); Articles Editor, Northwestern University Law Review

Judicial Clerkships:

  • Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit (1993-1994)
  • Associate Justice Antonin Scalia of the United States Supreme Court (1994-1995)


  • 1995-1997:  Sidley & Austin LLP
  • 1997-1998:  Visiting Assistant Professor, Northwester University Law School
  • 1998-2002, 2003-2015:  Special Counsel to the Dean and Lecturer in Law, University of Michigan School of Law
  • 2002-2003:  Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel (Washington, D.C.)

Notable Matters:  

  • Justice Larsen was appointed on September 30, 2015 by Governor Rick Snyder to the Michigan Supreme Court and elected to another term in November 2016.  In describing her judicial philosophy on her campaign website, Justice Larsen wrote, “[J]udges should interpret the laws according to what they say, not according to what the judges wish they would say.  Judges are supposed to interpret the laws; they are not supposed to make them.”
  • At the University of Michigan School of Law, Justice Larsen’s research and teaching interests include constitutional law, international law, the judicial system, and separation of powers.  She is a recipient of the L. Hart Wright Award for Excellence in Teaching. 
  • Her academic writings include Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283 (2004), in which she argued against the consideration of international law for substantive constitutional questions.
  • As an attorney in private practice at Sidley & Austin LLP, Justice Larsen was a member of the Constitutional, Criminal and Civil Litigation Section. 

Biographical Notes:  Justice Larsen is married and has two children.

Trump Proposes an Excellent Slate of Appellate Judicial Nominees

by Carrie Severino

As a presidential candidate, Donald Trump committed to “appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans.” He made good on that promise only one week after taking office by nominating Neil Gorsuch to the Supreme Court. Now he is taking the next step in carrying out his campaign promise by appointing highly qualified and principled judges to the lower federal courts.

According to Adam Liptak, tomorrow President Trump will be naming five new appellate nominees as well as four district court nominees and one nominee to the Court of Federal Claims. I will follow this post with a series of biographical posts on the appellate nominees, but I’m pleased to report that they are an exceptional slate that carries on the tradition this president began by nominating Justice Gorsuch. I hope that the Senate will move quickly to confirm them. 

Update: Here are links to the bios of the appellate nominees:

This Day in Liberal Judicial Activism—May 6

by Ed Whelan

2016—Anticipating the imminent prospect of a liberal majority on the Supreme Court, Harvard law professor Mark Tushnet encourages the Left to abandon what he somehow imagines to have been an era of “defensive-crouch liberalism.” Among his modest and genial recommendations:

The Left “should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”

Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

“Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet doesn’t use asterisks.)

Judge Posner Is Beyond Catty

by Ed Whelan

Every few years or so, it seems, Judge Richard A. Posner hastily copies and pastes his recent meandering pieces into something that has the outward appearance of a book. (I’ve reviewed earlier efforts here and here.)  From a tweet today, I’ve learned of this passage from his forthcoming regurgitation:

A recent article states that [Neil] Gorsuch “confessed to having cried on the ski slopes when the news reached him that [Justice] Scalia had died.” I find that hard to believe, even if one ignores the implausibility of someone’s accosting Gorsuch on the ski slopes to report Scalia’s death. Scalia was a month short of his eightieth birthday when he died, and though the details of his very poor health had not been published he was known to be obese and (despite his age) a heavy smoker, facts that coupled with his age augured a short remaining lifespan.

What a jerk.

For starters, as anyone who paid a modicum of attention to the Gorsuch nomination might recall, Gorsuch himself, in his much-publicized speech in praise of Justice Scalia’s legacy, offered this preface:

A few weeks ago, I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news. I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.

So, as a minute of research would have revealed, Posner didn’t have to attribute the supposedly “hard to believe” claim to a secondary source. Nor would he have had to ponder “the implausibility of someone’s accosting Gorsuch on the ski slopes.” (Does Posner not know that phones work on the ski slopes? How could he not have thought it obvious that someone—Gorsuch’s wife or one of his colleagues or law clerks—would call him immediately with the news?)

Further, in case Posner somehow missed it, Scalia’s sudden death triggered intense mourning across the country. That’s in part because whether or not people cry on the news of someone’s death depends not so much on whether a death is statistically foreseeable but rather on whether they are fond of and admire the deceased and whether the death, even if statistically foreseeable, is sudden.

Posner’s characterization of Scalia as “obese” is also gratuitously nasty. To be sure, that characterization might well be defensible under the Body Mass Index, which results in more than 1/3 of American adults being labeled “obese.” But in common parlance “obese” is reserved for extreme cases.

Posner has volunteered, “I have exactly the same personality as my cat…. Cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.” Yes, indeed. Decent human beings aim higher.

This Day in Liberal Judicial Activism—May 5

by Ed Whelan

1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified.”

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)

This Day in Liberal Judicial Activism—May 4

by Ed Whelan

1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez).

Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name.

Keep reading this post . . .

This Day in Liberal Judicial Activism—May 3

by Ed Whelan

1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority.

In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.”

Here Come the Judges?

by Jonathan H. Adler

As of May 1, there are 129 federal court vacancies, including 20 on the federal appellate courts. 17 more vacancies are pending. This presents Trump with a substantial opportunity.

As of May 1, President Trump had made only one nomination to a lower federal court: Judge Amul Thapar to an open seat on the U.S. Court of Appeals for the Sixth Circuit. The Senate Judiciary Committee held a hearing on Thapar’s nomination last week, and it appears he will be quickly confirmed.

According to David Lat, the Trump Administration is preparing to announce a group of additional nominations to federal appellate courts later this month. Further, as Lat reports here and here, the list of nominees is incredibly promising. Most of the names under discussion are highly qualified individuals who would make principled and effective jurists.

As Lat notes, anyone on a lower court or state court on Trump’s Supreme Court short list is almost a shoo-in for an appellate nomination, provided there’s an applicable vacancy. This would suggest good news for state supreme court justices like Minnesota’s David Stras (Eighth Circuit), Allison Eid (Tenth Circuit), and Texas’ Don Willett.  It also suggests that Michigan’s Joan Larsen is the front runner for the Michigan spot on the U.S. Court of Appeals for the Sixth Circuit created by Judge David McKeague’s announcement that he will take senior status when his replacement is confirmed.

Lat also identifies some other promising potential nominees, such as Notre Dame law Professor Amy Comey Barrett (Seventh Circuit), former Texas Solicitor General James Ho (Fifth Circuit), and former Alabama Solicitor General Kevin Newsom (Eleventh Circuit), as well as some individuals he expects to come under consideration when new vacancies arise (such as West Virginia Solicitor General Elbert Lin (Fourth Circuit) and Idaho attorney Ryan Nelson (Ninth Circuit)).

Lat’s reporting is consistent wth my understanding, though (as he notes) we won’t know what President Trump is going to do until he actually does it. While I might prefer some of the folks Lat mentions to others, the overall list of possible nominees is incredibly encouraging.

One wrinkle: In some cases, the path to confirmation is relatively easy because the relevant states have two GOP Senators. In others, however, the Trump Administration will have to consider whether Democratic Senators will return blue slips on principled conservative nominees. Then again, as Lat reports, “My sources say the Republicans will have no qualms about going nuclear on blue slips if they feel the Democrats are abusing them.” Stay tuned.

This Day in Liberal Judicial Activism—May 1

by Ed Whelan

1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause.

One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor and Souter dissent.