This Day in Liberal Judicial Activism—November 5

by Ed Whelan

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

This Day in Liberal Judicial Activism—November 4

by Ed Whelan

1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.”

But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism.

2016—In defiance of governing Third Circuit precedent holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, federal district judge Cathy Bissoon (in EEOC v. Scott Medical Health Center) denies an employer’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.  

Heroic Book Review

by Roger Clegg

I’d like to add my voice to the chorus praising Scalia Speaks, the recent compendium of speeches given by the late, great justice. In doing so, let me offer a couple of points that I’ve not seen made elsewhere.

First, because this is book is not only entertaining and thoughtful but also accessible to nonlawyers — the speeches are divided into six categories, only one of which is “On Law” — it’s a good way for us conservative lawyers to show our laymen friends the reason we loved Justice Scalia as we did. This sort of enthusiasm is not always easy to explain without eyes glazing over; to outsiders, I suspect, the Federalist Society annual meeting must seem like Sesame Street’s “National Association of W Lovers,” where W stands for Scalia. Anyway, I’m giving a copy to my parents as a Christmas present.

Second, the insights are as fresh as today’s newspaper. Case in point: The day I finished the book some columnist criticized on separation of powers grounds those politicians who attack judges; well, Justice Scalia explains more than once in this book that, when judges act as politicians, their being treated as such is not only inevitable but even desirable, if the only alternative is to accept their rule as that of a new aristocracy.

Now, it is common knowledge that one of the book’s editors, Ed Whelan, is a good friend, so to show that I am not in the tank, let me note: (1) the editors are not perfect, and I did find one typo in the book (on page 310, the failure to capitalize the last word in “Grand Army of the republic”); (2) Justice Scalia should have credited Emil Faber rather than simply plagiarizing the latter’s trenchant observation, “Knowledge is good” (page 328); and (3) it was unconscionable for Justice Scalia to characterize, albeit indirectly, our hero William F. Buckley Jr., as “one smart-aleck political commentator” (page 329).

Still, all is forgiven since I now know that Justice Scalia, proud Italian-American Catholic though he was, was also apparently a fan of the Irish-British Protestant and a third hero of mine, C.S. Lewis. The justice pays him this fine compliment: “Had he been a lawyer, C.S. Lewis would have been a magnificent legal writer.” And had he had the chance to read what Justice Scalia has to say “On Faith,” I’m sure Mr. Lewis would have found some way to return the compliment.

A fine book!

WSJ Review of Scalia Speaks: ‘Marvelous’

by Ed Whelan

In today’s Wall Street Journal, UVA law professor, and former Scalia law clerk, John Duffy has a beautiful review of Scalia Speaks. A couple of excerpts:

Scalia’s brilliant writing and commitment to principle permeate Scalia Speaks…. The book supplies what Scalia’s judicial opinions could not: insight into the more fundamental set of principles that guided the man’s entire life. The speeches are divided into six sections, only one of which is devoted to the law. But it is the five other sections that are the most illuminating. Here we learn Scalia’s outlook on, among other things, character, friendship, education, sports, political philosophy and faith….

This marvelous book surely will be required reading for anyone seeking to understand the mind of this great jurist and conservative thinker. But I would go further and say that it should be required reading for anyone who wishes to understand the mind of a great American, a figure so important to our history that his passing influenced the presidential election held months later. If Scalia Speaks can be said to have one fundamental flaw—one shared with the man’s life—it is that it ends too soon.

I readily acknowledge that the reader might fairly be skeptical of an assessment offered by a former Scalia clerk. There are at least two good reasons to overcome that skepticism. First, Duffy deftly works in illustrations that support his judgments. Second, his assessment aligns with that of all the other reviewers of the book so far, including those on various places on the ideological spectrum, such as Alan Dershowitz (“marvelous collection”) and SCOTUSblog’s Ronald Collins (“If you would know Scalia the man, read Scalia Speaks”).

This Day in Liberal Judicial Activism—November 2

by Ed Whelan

2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include:

(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report.

(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.

(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.

(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.

(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.

(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.

(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).

Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise.

Ongoing Democratic Obstruction Aided by the ABA

by Carrie Severino

Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley deserve credit for pressing forward to secure the confirmation of President Trump’s judicial nominees amid ongoing obstruction by Senate Democrats. Starting last week, Leader McConnell began to reverse the ballooning number of vacancies on the federal bench with a spate of floor votes. This week, he started with a floor vote for district court nominee Trevor McFadden and then proceeded to four circuit court nominees—Amy Coney Barrett, Joan Larsen, Allison Eid, and Stephanos Bibas.

Barrett, whose nomination to the Seventh Circuit was met by the ugly spectacle of Senate Judiciary Committee Democrats questioning her about her faith during her hearing, was confirmed yesterday. The others will follow the balance of this week, Leader McConnell promises, even if the Senate must work into the weekend. The reason that might be necessary is the decision by Democrats to employ every tactic they can to delay the confirmation of judges.

Although the nomination filibuster was largely eliminated at their own hands when they were in the majority, Senate Democrats have indiscriminately forced the Senate to take 47 cloture votes on judicial and executive nominations since Trump took office. For an idea of how unprecedented this is, consider that there were a total of only six such votes at this point in the previous four presidential administrations combined. The gratuitous nature of this obstruction is highlighted by the substantial number of nominees many Democrats did not even oppose, going on to vote for their confirmations after the cloture votes were behind them. This has translated into far longer waits for nominations and the lowest percentage of presidential nominees confirmed over the last 30 years. Of course, the unnecessary protraction of the process also has the effect of slowing the Senate’s ability to do its work on other issues facing the country—which cynically appears to be the very plan of the Democratic leadership.

While votes and debates on circuit court nominees plod forward on the Senate floor, the Senate Judiciary Committee continues its work considering additional nominations. Today the Committee is holding a hearing for four judicial nominees, three for various district courts and one for the Eighth Circuit, Leonard Steven Grasz, long the chief deputy attorney general of Nebraska. In the latter case, the standing committee of the American Bar Association (ABA) has provided grist for Democrats by rating the nominee “not qualified.” Their report explaining the basis for this rating is strikingly thin, attributing to Grasz “bias and lack of open-mindedness” based on a law review article he wrote in 1999 making the argument that lower court judges should not rush to extend the Supreme Court’s prior rulings on abortion to strike down prohibitions on partial-birth abortions. Apparently ignored by the ABA was the same article’s recognition that “[l]ower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so.” Including that in its assessment would have acknowledged how much Grasz’s views on the subject align with the widely accepted understanding of the obligations of lower court judges.

That the ABA would have offered its rating is not surprising given its own history of politicizing its assessments of nominees. As Adam White notes, this phenomenon has long been widely observed, including in a book-length study going back over 50 years and a 2012 Political Research Quarterly study that found “strong evidence of systematic bias in favor of Democratic nominees.” Abortion is as politically charged as recent issues get, so it is not surprising this would have been the context to trigger another instance of ABA bias. It is worth noting that, while the Supreme Court narrowly struck down Nebraska’s partial-birth abortion ban in 2000, a year after Grasz’s article, it would uphold a similar federal statute in 2007, ultimately taking the position Grasz advocated. It should not be necessary to point that out, but as Ed Whelan has illustrated (here, here, and here), the ABA has so blurred the lines between its own agenda and its understanding of the roles of advocates versus adjudicators that the organization has discredited itself in this instance rather than the nominee.

Yale Events

by Ed Whelan

This Friday, November 3, I will be at Yale to take part in two events.

At noon, I’ll be discussing Scalia Speaks at Yale law school. Eleventh Circuit judge William Pryor, who has penned a generous review of the book, will also take part. The event is sponsored by the law school’s Federalist Society chapter.

Later that afternoon, I’ll be on a panel at the annual conference of the William F. Buckley, Jr. Program at Yale. This year’s conference addresses “The Constitution and the Courts: Challenges, Opportunities, and the Future of Freedom.” My panel is titled “Judicial Confirmations and Interpreting the Constitution: Borking, Activism, and Originalism.” My fellow panelists are law professors Randy Barnett and Jonathan Turley, with law professor E. Donald Elliott as moderator. The full conference schedule, which features a great line-up, is here.

Judge William Pryor: Scalia Speaks Is ‘Indispensable’

by Ed Whelan

While I was abroad last week, Eleventh Circuit judge William Pryor published a great review of Scalia Speaks. Here are his first two paragraphs:

For those who will forever celebrate the life and career of the late Justice Antonin Scalia or for those who simply want to learn more about this giant of American law, one of Justice Scalia’s sons, Christopher, and one of his former law clerks, Edward Whelan, have teamed up to publish an indispensable collection of the late justice’s best speeches, “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.” This collection puts on full display Justice Scalia’s skilled writing, his quick wit and his uncommon wisdom on a wide range of topics — from law to turkey hunting, from education to religious faith, from American values to American heroes, and from virtue to the public good.

Although “Scalia Speaks” will especially appeal to judges and lawyers, a general readership will find these speeches, many never before published, to a variety of audiences — whether at college or high school commencements or on St. Patrick’s Day in New York City or at the Days of Remembrance for victims of the Holocaust at the Capitol — to be accessible, edifying and entertaining.

ABA Committee Smokes Grasz—Part 3

by Ed Whelan

What’s really going on? What might actually explain the ABA’s “Not Qualified” rating of Eighth Circuit nominee Steve Grasz and its embarrassingly incompetent report on that rating?

Some observations:

1. The lead investigator on Grasz’s nomination was Arkansas law professor Cynthia Nance. Under the ABA’s procedures, it was Nance who prepared the formal investigative report on Grasz and circulated it to her fellow committee members for a vote. (The head of the ABA committee then drew on that much longer report to prepare the short report that was sent to the Senate Judiciary Committee.)

Nance’s strong ideological bias is not difficult to uncover. Among other things, she signed a letter opposing the confirmation of Justice Alito. Given the ABA’s persistent complaints about Grasz’s supposed inability to separate his judging from his “pro-life agenda,” it’s notable that that letter against Alito complains about the impact that he would have on—euphemism alert!—“women’s reproductive freedoms.” Nance also signed a letter arguing that the “government’s interests in protecting women’s health and reproductive freedom, and combating gender discrimination,” meant that even religiously affiliated organizations—like the Little Sisters of the Poor—should be required to provide contraceptive coverage (including drugs and devices that can also operate in an abortifacient manner) notwithstanding their own religiously informed views on what constitutes illicit moral complicity in evil.

Nance’s very active Twitter feed (more than 24,000 tweets) also offers some revealing insights. Among other things, Nance retweeted the question whether Justice Scalia would have been in the majority in Dred Scott, and she evidently found amusing or insightful the observation that “Constitutional strict constructionists … want women to have all the rights they had in 1787.” Yes, this is just the sort of fine and balanced legal mind, with a great grasp of conservative judicial principles, that the ABA puts in charge of evaluating judicial nominees.

What’s even odder about law professor Nance’s membership on the committee is that the ABA says that appointment to the committee “is based on a lawyer’s possession of the highest professional stature and integrity.” But Nance is a law professor, not a lawyer. While she directs her law school’s pro bono practice, I see nothing in her bio to suggest that she is deeply engaged in the practice of law.

[Addendum (4:30): An experienced litigator writes to tell me: "I searched in Westlaw for Cynthia Nance as counsel in all state and federal courts and found not a single case. Of course most state trial court opinions are not on Westlaw, but someone with even moderate litigation experience would be all over Westlaw."]

Perhaps the ABA committee has had members before who were law professors rather than lawyers, but I don’t recall any. (I will amend this post if I learn of any.)

So how and why is Nance even on the committee?

2. The ABA’s supposed check against a hostile lead investigator is to have a second investigator conduct a supplemental evaluation of the nominee in those instances in which the lead investigator recommends a “Not Qualified” rating.

So if you’re the head of the committee, whom would you select to ensure that ideological bias isn’t warping the process? Probably not a very liberal lawyer from San Francisco. But that’s exactly what the ABA did.

Laurence Pulgram, the second investigator, is a member of the left-wing Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. He has a history of political donations to folks like Barack Obama, Hillary Clinton, Elizabeth Warren, and Kamala Harris and to groups like MoveOn.org. If there’s a leftist cause missing from his Twitter feed, I didn’t notice it. All of this, of course, is his right, but it’s difficult to imagine that he would dare to disagree with, much less attempt to override, a lefty black female investigator’s objections to a conservative judicial nominee.

3. My own guess is that the opposition to the Grasz nomination was orchestrated (and I’m even willing to bet that I know who the ringleader was). Specifically, I suspect that opponents of the Grasz nomination fed an eager Nance a stream of lawyers who would echo each other’s charges.

One tell is the ABA’s statement that Grasz’s “professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.” Lawyers working with or against each other on cases would rarely have occasion to discuss “views of stare decisis,” and they’d expect any lawyer to advance whatever view helped him in a particular case. So it’s a safe bet that someone was circulating Grasz’s 28-year-old law-review article—and likely misrepresenting it, just as the ABA does—among folks eager to defeat his nomination.

Another oddity is the ABA’s contention that Nance and Pulgram supposedly “encountered a reluctance on the part of members of the Nebraska bar to respond to [their] inquiries” and that “many” who did respond “were concerned about possible repercussions from their participation.” (The particular passage is about Nance, but there’s something similar about Pulgram.) Consider me skeptical that any such concerns were genuine. Are we supposed to believe that Nebraska politics are run by the Mafia? Or might this just be a clever way to try to discredit the overwhelming publicly expressed support that Grasz’s nomination has received?

4. As I wrote more than a decade ago of the ABA’s outrageous trashing of Fifth Circuit nominee Michael B. Wallace, negative ratings of judicial nominees based on unsatisfactory judicial temperament are especially suspect because

assessments of judicial temperament are so subjective and manipulable. Indeed, it is striking to contrast the extrapolations made about Wallace’s judicial temperament from his experience as a litigator with the ABA’s unanimous conclusion a dozen years ago [in 1994] that federal district judge Lee Sarokin (whose record I discussed more fully here) was “well qualified” to be elevated to the Third Circuit. Despite the fact that the Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent,” the ABA had no concerns about his judicial temperament. But, of course, Sarokin was a nominee of President Clinton and was a self-described “flaming liberal” as a judge.

Bottom line: The ABA’s rating of Grasz does not deserve to be taken seriously.

ABA Committee Smokes Grasz—Part 2

by Ed Whelan

Numbering serially from my Part 1 post:

2. The ABA states that its lead investigator, law professor Cynthia Nance (about whom I will have plenty more to say later) “noticed that a number of lawyers were missing in the nominee’s report of his ‘10 most substantial litigated matters.’” In context, it seems to be insinuating that Grasz was trying not to identify attorneys who might be unfavorable to him.

Again, I can’t make heads or tails of the ABA’s charge. The Senate questionnaire (see question 17 on page 47) asks Grasz to list “principal counsel for each of the other parties” in his Top Ten list of litigated matters. Despite asserting that “a number of lawyers were missing,” the ABA doesn’t give a single example. On my own quick review of the Top Ten list, I see an opposing counsel identified in each case. Perhaps I’m missing something, but if the ABA thinks that there’s a failing here, it surely ought to have specified it.

One wonders whether there is a trivial disagreement over who was the “principal” opposing counsel or whether amici qualify as “parties.”

3. The ABA reports that Grasz’s “professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.” Insofar as such concerns rest on anything beyond what I’ve addressed in item 1, the ABA does not set forth any basis for them. So it’s impossible to address them.

It’s worth emphasizing that one cannot defend the ABA’s woeful lack of detail on this or other points by claiming that additional detail would violate the confidentiality of its sources. For under the ABA’s procedures, “the substance of the adverse information is shared with the nominee.” Further: “If that cannot be done” without violating the confidentiality of sources, “the information may not be relied on by the [ABA] Committee in reaching its evaluation.” (Report at 3.)

4. The ABA states that “a number of Grasz’s colleagues expressed the view” that he is “not ‘free from bias’”—specifically, that “he would be unable to separate his role as an advocate from that of a judge.” Here again, no specifics are provided beyond what I’ve addressed in item 1.

We don’t even get a hint of what “number” of colleagues expressed this view.

In modern parlance, “bias” is a loaded word. The ABA makes clear the first time it uses that word that it is not suggesting that Grasz bears any animus against any group of people. That important distinction might well be lost, though, the five additional times it uses that word or its cognates against Grasz.

5. The ABA states that “members of the bar shared instances in which Mr. Grasz’s conduct was gratuitously rude.” Amazingly, it doesn’t bother to give a single example of rude conduct by Grasz, so its claim is impossible to address.

Aside: According to Larry Tribe, as Josh Blackman reminds us, Sonia Sotomayor had a “reputation for being something of a bully” when she was nominated to the Supreme Court. (It was I, by the way, who uncovered and published Tribe’s letter to President Obama.)

6. The ABA alleges that “there was a certain amount of caginess, and, at times, a lack of disclosure [on Grasz’s part] with respect to some of the issues which the evaluators unearthed.” But once again it provides no specifics or illustrations, so it’s impossible to assess whether Grasz can fairly be faulted.

Something very fishy seems to be going on, as I will address further in my next post.

ABA Committee Smokes Grasz—Part 1

by Ed Whelan

President Trump’s nomination of Omaha lawyer, and longtime chief deputy attorney general of Nebraska, Steve Grasz to a vacancy on the Eighth Circuit has earned widespread praise. So it was quite a surprise when the American Bar Association’s judicial-evaluations committee informed the Senate Judiciary Committee yesterday that it has rated Grasz “Not Qualified” for the position.

As I will show in this series of posts, the ABA’s report is feeble beyond the point of incompetence.

Let’s dive right in to the report. The ABA spells out its concerns about Grasz in the five paragraphs on pages 5-7 of its report. I will address those concerns comprehensively, but in a somewhat different order than the rather slapdash presentation in the report.

1. The ABA contends that Grasz is not sufficiently able “to differentiate between the roles” of advocate and adjudicator.

a. As its first example, the ABA contends that there is an inconsistency between Grasz’s stated respect for stare decisis (that is, for binding precedent) and the views he expressed in a 1999 law-review article (and that it says he continues to adhere to). Selectively quoting that article, the ABA faults him for his supposed “suggestion that a lower court judge was entitled, in deciding the issue [whether a ‘partially born’ fetus has a right to life under the 14th Amendment], to question the jurisprudence of a superior court.”

But in the law-review article that the ABA criticizes, Grasz states (pp. 27-28):

Lower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so. However, a court need not extend questionable jurisprudence into new areas or apply it in areas outside of where there is clear precedent.

Read together, these sentences set forth an uncontroversial position. In order to create controversy, the ABA entirely omits the first sentence, and it then pretends that the second sentence, rather than setting forth a general proposition, is “referring to the Supreme Court’s rulings in Roe and Casey.” Yes, Grasz applies that general proposition to the question whether Roe v. Wade and Planned Parenthood v. Casey speak to the legal status of “partially-born human beings,” but, much as the ABA would have the reader think otherwise, he isn’t concocting a special rule for abortion precedents.

The ABA again misrepresents Grasz’s stated views when it claims that in that law-review article he “further argued that, because ‘abortion jurisprudence is, to a significant extent, a word game, the lower courts … should have construed the 14th Amendment as granting a ‘partially born’ fetus [a] right to life that overruled a mother’s right to choose established in Roe and Casey.” But Grasz’s actual argument was that “the killing of partially-born children is inherently different from a true abortion”; that Roe and Casey therefore don’t govern the matter; and that a “partially-born human being” is a “person” under the 14th Amendment. There’s plenty of room to disagree with Grasz’s position, but that’s no excuse to distort it beyond recognition.

b. As its second and final example of Grasz’s supposed inability to distinguish between the roles of advocate and of adjudicator, the ABA finds “troubling” Grasz’s position that “his own pro-life agenda has no impact on his conclusion as to how a lower court could and should have avoided Roe and Casey.” It asserts that he “was unable to identify the lack of objectivity that his personal convictions had created.”

I have difficulty making heads or tails of this charge (perhaps because the ABA’s prose, here as elsewhere, is so muddled). If the ABA is complaining that Grasz’s position on the legal status of “partially-born human beings” is driven by his personal pro-life convictions, would it similarly complain that those who hold the contrary position are driven by their convictions in favor of abortion? If not, why not?

The answer, I suppose, is that the ABA has sub silentio assumed that Grasz’s position is legally wrong. But it hasn’t done any work to reach that conclusion. It would thus seem that it’s the ABA that is unable to distinguish between its role as advocate (of a radical abortion regime) and its role as adjudicator (of the merits of judicial nominees).

More to come.

This Day in Liberal Judicial Activism—October 31

by Ed Whelan

1972 — By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package — which turned out to contain heroin — that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

SCOTUSblog Praises Scalia Speaks

by Ed Whelan

Playing catch-up from my week away, let me highlight this excellent review of Scalia Speaks by SCOTUSblog’s book reviewer, law professor Ronald Collins. As Collins puts it succinctly, “If you would know Scalia the man, read Scalia Speaks.”

Collins provides a fine overview of the book, which he hails as “a skillfully selected and well-stitched anthology” that “offers a unique and useful addition to the Scalia section of the library.”

Alan Dershowitz’s NYT Review: Scalia Speaks Is ‘Marvelous’

by Ed Whelan

I’m delighted by retired Harvard law professor Alan Dershowitz’s glowing praise for Scalia Speaks in his book review in next Sunday’s New York Times. Dershowitz “loved arguing” with Scalia, and his review continues the argument. It also includes passages like these (emphasis added):

Reading “Scalia Speaks” — the marvelous collection of his speeches, lovingly compiled by his son and a former law clerk — brought Nino back to life for me. His words, even when read, are provocations to argue, disagree and think. They cannot be read passively. They cry out for dialogue. They demand answers — or surrender.… 

Liberal constitutional lawyers will continue to debate Justice Scalia many years after his death, because when it comes to jurisprudence, he was the most transformative jurist of our generation. His views cannot be ignored. That is his enduring legacy. But he was more than an influential justice. He was a great man, who lived life to the fullest — as a devout Catholic, a proud Italian-American, a devoted family man, a loyal friend, and a person of humor and culture who fondly remembered his roots in Queens and New Jersey. “Scalia Speaks” gives us a glimpse of the man, as I came to know and respect him, despite — no, because of — our arguments.

Judicial Nominations Update

by Carrie Severino

After having strong words last Wednesday and Thursday about the Senate Democrats’ continued obstruction of President Trump’s judicial nominees, on Thursday afternoon Senate Majority Leader Mitch McConnell filed cloture motions for the four circuit court nominees currently pending on the Senate floor, setting them up for confirmation votes this week.

Senator McConnell’s move to confirm more of President Trump’s judicial nominees comes just in time, as an additional eight nominees were reported out of the Senate Judiciary Committee to the Senate Floor on Thursday, bringing the total number of judicial nominees awaiting a Senate floor vote to 21. Under Chairman Grassley’s leadership, the Senate Judiciary Committee has been steadily processing the President’s nominees, having already held hearings for 33 judicial nominees to date, with four more scheduled for hearings next Wednesday.

Also on Thursday, the Senate confirmed Scott Palk to the U.S. District Court for the Western District of Oklahoma, bringing the total number of federal judges confirmed this year to seven (eight including Justice Gorsuch).

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

Number of total current and known future vacancies: 166

Courts of Appeals: 27

District/Specialty Court*: 139

Number of pending nominees for current and known future vacancies: 53

Courts of Appeals: 14

District/Specialty Courts: 39

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

Nominees Awaiting Floor Votes

Courts of Appeals: 4

District/Specialty Courts: 17

Nominees Confirmed by the Senate

Courts of Appeals: 4

District/Specialty Courts: 3

This Day in Liberal Judicial Activism—October 30

by Ed Whelan

2006 — A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statements, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”— and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent.

“We Will Confirm These Nominees. You Can Count on It”

by Carrie Severino

While giving remarks this morning, Senate Majority Leader Mitch McConnell had strong words for the Democratic minority, which persists in its unprecedented obstruction of President Trump’s outstanding judicial nominees. Noting that even though “the well-qualified men and women the president has nominated enjoy substantial bipartisan support,” the Democratic minority continues to “erect[] partisan procedural hurdles designed not to change [the] outcome but simply to waste the Senate’s time.”

Senator McConnell pointed out that, during the first year of President Obama’s presidency, only once did Senate Republicans require a cloture vote on one of President Obama’s nominees. In contrast, Senate Democrats have invoked cloture for all of President Trump’s nominees except one. As Senator McConnell explained, these cloture votes “are not designed to change [the] outcome but only to waste Senate floor time. For example, this week the Senate has spent several days considering the nomination of Scott Palk, nominee to the U.S. District Court for the Western District of Oklahoma, despite the fact that Mr. Palk was originally nominated to the same seat by President Obama in 2015. He was confirmed today by a substantial margin of 79-16, notwithstanding the multiple days of debate over his nomination required by cloture. Likewise, Senate Democrats required cloture for Trevor McFadden this past week, nominee to U.S. District Court for the District of Columbia, despite the fact that Mr. McFadden was voted out of the Senate Judiciary Committee unanimously in July. In the past, it has not been unusual for district court nominees—and even occasionally circuit court nominees—to be confirmed by voice votes.

Senator McConnell promised today that the Senate Minority’s pointless attempts at obstruction will not succeed, vowing that, “We will confirm these nominees. You can count on it.” He said that he will do what is necessary to see them confirmed, even if it means “more cloture votes and more time focused on this task [of confirming nominees].” And Senator McConnell demonstrated this afternoon he is quite serious about his promise, filing cloture motions for all four of the pending circuit court nominees: Amy Coney Barrett, Joan Larsen, Allison Eid, and Stephanos Bibas. This sets up confirmation votes for all four of these nominees next week.  With Mr. Palk being confirmed today, and Mr. McFadden’s confirmation vote now slated for Monday afternoon, this means that six of President Trump’s judicial nominees could be confirmed within the span of one week. 

This morning eight additional judicial nominees were reported out of the Senate Judiciary Committee, bringing the number of nominees currently awaiting a confirmation vote to 21.  I applaud Senator McConnell’s commitment to ensuring the confirmation of all of President Trump’s outstanding nominees and look forward to seeing them serve in our federal courts across the country.

This Day in Liberal Judicial Activism—October 25

by Ed Whelan

1957 — No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001 — “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.

Implementing his promise — or, rather, threat — to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court.


2006 — Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples.

This Day in Liberal Judicial Activism—October 22

by Ed Whelan

1992 — Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause.

Undeterred, in Foster v. State Florida chief justice (and, later, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.

Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”

This Day in Liberal Judicial Activism—October 21

by Ed Whelan

1949 — President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”