This Day in Liberal Judicial Activism—September 23

by Ed Whelan

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), a unanimous Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

Another Weak Defense of Feinstein

by Ed Whelan

In this Washington Post op-ed, Boston College law professor Cathleen Kaveny asserts that “there is no evidence that [Senator Dianne] Feinstein was motivated by anti-Catholic bias” when she complained to Seventh Circuit nominee Amy Coney Barrett that “the dogma lives loudly within you.”

Yeah, “no evidence” other than what Harvard law professor Noah Feldman correctly identified as Feinstein’s use of “a term with a long history as a dog whistle for anti-Catholicism in America.” Does that prove that Feinstein was actually motivated by anti-Catholic bias? No. But it does render ridiculous Kaveny’s whitewashing assertion of “no evidence.”

Kaveny also thinks it somehow exculpatory of Feinstein that Senator Durbin, “who is Catholic, also asked Barrett about the impact of her faith on her jurisprudence.” Kaveny asks: “Is he a self-hating bigot? Or is it just the Jewish senator who is the problem?”

How strange. Durbin (who, by the way, has been barred by his bishop from receiving communion in his home diocese) has received plenty of criticism for asking Barrett, “Do you consider yourself an orthodox Catholic?” But his question can more readily be classified as out of bounds—what business is it of a senator to make such an inquiry?—than as obviously bigoted.  So Kaveny’s not-so-subtle insinuation that Feinstein’s critics—some of whom are Jewish—are anti-Semitic is vile and baseless. Or does Kaveny think that Noah Feldman and Yair Rosenberg (author of “Jewish Senators Need to Stop Subjecting Non-Jewish Nominees to Religious Tests”) are “self-hating bigots”?

More broadly, Kaveny finds “puzzling” Barrett’s position that “her faith-based moral views will not affect her judicial decision-making.” Most of Kaveny’s discussion of Catholic teaching “on many controversial matters at the intersection of law, morality and public policy” simply fails to distinguish between the role of legislators and the role of judges. But she does also assert that “many laws call upon judges to make moral judgments.” Her two examples, however, are weak. She invokes the Eighth Amendment’s ban on “cruel and unusual punishments.” But apart from the fact that the meaning of that ban would properly be determined by looking to the nature of punishments that were regarded as cruel and unusual at the time the Eighth Amendment was adopted, even the proponents of the “evolving standards” approach to the Eighth Amendment purport to be looking to objective markers to determine what those standards are. Similarly, Kaveny’s contention that the common-law doctrine of promissory estoppel limits remedies “as justice requires” seems to assume that neutral principles haven’t (and can’t) be developed to channel that discretion.

But whether you agree with Kaveny or me on the proper relationship between a judge’s moral views and that judge’s decisionmaking is largely beside the point of the current controversy. As I’ve made clear (here and here), I agree with Kaveny that it is fair to explore whether a judicial nominee will indulge her own views in deciding cases. But there are proper and improper ways to conduct such an exploration. Whatever her motivations, Feinstein used an obvious misreading (intentional or not) of what Barrett had written on the relationship between a judge’s religious faith and the judge’s legal duty, and she then invoked a bigoted term to insinuate that Barrett, as a faithful Catholic, would not comply with her legal duty as a judge. Feinstein’s conduct was grossly improper, and Kaveny ought to be condemning it, not offering excuses for it.

This Day in Liberal Judicial Activism—September 22

by Ed Whelan

2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

Southern Poverty Law Center Smears Me

by Ed Whelan

Last week I exposed how, at Seventh Circuit nominee Amy Coney Barrett’s confirmation hearing, Senator Al Franken foolishly parroted the Southern Poverty Law Center’s false claim that the Alliance Defending Freedom “has defended state-sanctioned sterilization of transgendered people abroad.” I also highlighted SPLC’s broader ugly practice of promiscuously misusing hateful labels to stigmatize its political opponents and milk money from its gullible followers.

True to form, SPLC has responded to my criticism with an article bearing the sensationalistic title “Ed Whelan is pleased to defend state-enforced sterilization.” That charge is a vile lie—and grossly incompetent as well.

1. SPLC uses the term “state-enforced sterilization” as a confusing and inflammatory shorthand that encompasses legal regimes that allow a change of a person’s sex on a government-issued document only when a person has undergone a so-called sex-change operation. Yes, sterilization is SPLC’s deceptive blanket dysphemism that covers what it usually celebrates as sex-reassignment surgery.

[Update/clarification (2:00 p.m.): It may in fact be that some of the legal regimes that SPLC objects to condition (or conditioned) the documentary change of sex on actual sterilization alone. But SPLC is clearly using the term sterilization to include sex-reassignment surgery: it states, for example, that the American Medical Association “advocated for the same” (that is, for “total elimination” of the “sterilization requirement”) and links to an AMA document that objects to state laws that allow changes to the sex on birth certificates only for “applicants who change their sex by ‘surgical procedure.’” I’ve tweaked the preceding paragraph accordingly.]

SPLC complains that such regimes put transgender persons to the choice of “either undergo[ing] sterilization or continu[ing] living with documents that do not reflect their gender identity.” It’s that choice that SPLC mischaracterizes as “state-enforced sterilization.”

2. As I understand it, SPLC regards the only acceptable legal regime as one in which government-issued documents allow a change of a person’s sex on request. Indeed, it seems to see that as the only possible alternative to the regime it objects to.

The regime that SPLC favors would regard the purpose of government-issued documents as affirming a person’s subjective self-identification rather than advancing the basic identification (e.g., crime suspect, accident victim) and security purposes that I would have thought that government IDs are meant to serve.

3. My own tentative inclination would be toward a third regime—one that wouldn’t present transgender individuals with the choice that SPLC finds coercive and that also wouldn’t have government documents stating falsehoods. That regime wouldn’t allow for changes of a person’s sex on a government-issued document. (I would instead support other means of accommodating the difficult situations that transgender individuals encounter. But I also recognize that this third regime, like the others, would have shortcomings in some instances—which is why my previous post described the whole matter as “vexing.”)

More broadly: Not only do I not support “state-enforced sterilization”; I don’t support any form of surgical mutilation, no matter how voluntarily undertaken.

I of course can’t and don’t speak for ADF, but it wouldn’t surprise me if its view is the same as mine—which possibility of course further illustrates how ridiculous SPLC’s charge against it is.

4. SPLC’s article has numerous other errors that I’ll leave to the discerning reader of my previous post to discover.

Lest more epithets be flung at me, I’ll repeat that I regard individuals who identify as transgender as individuals who have an unalienable human dignity and who deserve to be treated justly and compassionately. The real debate ought to be over what just and compassionate treatment consists of. I don’t think that lies about biological reality are part of it.

5. It sure seems that SPLC is in the business of inciting irrational hatred against folks whose policy positions it doesn’t like. Doesn’t that qualify it as a “hate group”? Does SPLC care at all that its sensationalistic lies might again stir unstable followers to attack its targets? Or does it regard that risk—and the fear that it might instill in its targets and their families—as a feature rather than a bug?

Media Beware: The Southern Poverty Law Center Has Become a Dangerous Joke
Anti-Radical-Muslim Activist Group Labeled a ‘Hate Group’ by SPLC
Journalists Overreach in Their Quest to Purge ‘Hate’ from the Web

William Galston on Feinstein’s Anti-Catholic Bigotry

by Ed Whelan

In an excellent piece in the Wall Street Journal today, William A. Galston joins ranks with other liberal commentators who have criticized Senator Feinstein’s questioning of Seventh Circuit nominee Amy Coney Barrett.

Galston invokes “philosophical and constitutional first principles” and starts with Madison’s position that (in Galston’s summary) “the duty of faithfulness to divine command and the inner light of conscience must take precedence over the claims of civil society.” He then reviews the positions taken by various Catholic public officials, both judges and non-judges: William Brennan, Antonin Scalia, John F. Kennedy, and Mario Cuomo. He concludes (emphasis added):

None of these Catholics in public life took the position that he had the right to use his office to impose his faith on others. Ms. Barrett doesn’t either. She stated repeatedly during her Senate hearing that it is “never appropriate” to do so and that her religious affiliation and beliefs “would not bear on the discharge of my duties as a judge.”

But instead of giving priority to civil law, as Justice Brennan did, or insisting that resignation is the only way to resolve a conflict of conscience, as Justice Scalia did, her law-review article recommended something else: recusal on a case-by-case basis. This was what she and Mr. Garvey believed to be the best way of ensuring that Catholic judges neither betray their conscience nor impose its duties on fellow citizens.

Whatever its merits, this stance fits squarely within America’s judicial tradition—and it has nothing to do with dogma.

Chemerinsky’s Fatuous Defense of Feinstein

by Ed Whelan

There he goes again.

Berkeley law school dean Erwin Chemerinsky has penned a defense of Senator Dianne Feinstein’s questioning of Seventh Circuit nominee Amy Coney Barrett. Let’s take a close look at it:

1. Amazingly, Chemerinsky never acknowledges, much less quotes, the specific remark by Feinstein that invites the charge that she is indulging anti-Catholic bigotry:

Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.

Pro tip: If you want to defend someone against charges of bigotry but you won’t even disclose the statement that has been criticized as bigoted, perhaps you should reconsider whether to offer a defense.

2. Chemerinsky likewise never quotes Barrett’s emphatic rejection of the charge that her religious beliefs would affect her judging. As Barrett stated in the 1998 law-review article that Feinstein persistently misrepresented: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” At her hearing, she stated:

It is never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.… I continue to stand and vehemently believe the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, it is never, ever permissible for that judge to follow their personal convictions in the decision of a case rather than what the law requires.


If a judge ever felt that for any reason that she could not apply the law, her obligation is to recuse. I totally reject and I have rejected throughout my entire career the proposition that, as you say, the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.

Yet again:

I continue to subscribe to the core argument of that article, which is that a judge may never subvert the law or twist it in any way to match the judge’s convictions from whatever source they derive.

3. Chemerinsky’s glaring omissions are necessary to his defense of Feinstein. He deceptively claims at the outset of his piece that Barrett “had written about the duties of Catholic judges to be true to their religious beliefs.” Only four paragraphs later does he signal, rather obscurely, that Barrett was addressing only whether and when Catholic judges should recuse themselves from capital cases.

Oddly, even the caption of the photo of Barrett that accompanies Chemerinsky’s op-ed falsely states that Barrett “has written that Catholics must follow their religion on court decisions involving moral issues, such as abortion and the death penalty.” I half wonder whether Chemerinsky drafted the caption.

4. Chemerinsky posits some supposed conflict between Barrett’s article and her testimony that she “could not imagine sitting here any class of cases or category of cases on which I would feel obliged to recuse on grounds of conscience.” But Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges was much more complicated under Catholic moral teaching on improper cooperation. Ditto for issues beyond the death penalty. As Justice Scalia wrote (in an article that got enough attention that I’d think that Chemerinsky read it):

Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state (of which I am in a sense the last instrument) that is decreeing death, but rather private individuals whom the state has decided not to restrain.

So there is no inconsistency between Barrett’s article and her testimony.

5. Chemerinsky gives the false impression that only “conservatives” have criticized Feinstein’s line of questioning. To sustain this impression, he misrepresents Notre Dame president John I. Jenkins as a conservative, and he completely ignores the strong critiques from liberal non-Catholics like Harvard law professor Noah Feldman (“Feinstein’s Anti-Catholic Questions Are an Outrage”) and Princeton president Christopher Eisgruber. Even Laurence Tribe says he “lean[s] toward [Feldman’s] critique.”

(There’s also a great Wall Street Journal op-ed today by another liberal, William A. Galston. I’ll highlight it in a separate post.)

6. As I have made clear in response to a more sober defense of Feinstein, I agree that it is fair to explore whether a judicial nominee will improperly indulge her own views in deciding cases. But there are proper and improper ways to conduct such an exploration, and there are sound and unsound bases for having concerns about a particular nominee.

Feinstein used an obvious misreading (intentional or not) of what Barrett had written on the relationship between a judge’s religious faith and the judge’s legal duty to insinuate, in a bigoted fashion (“the dogma lives loudly within you”), that Barrett, as a faithful Catholic, would not comply with her legal duty as a judge.

Chemerinsky can defend Feinstein only by engaging in his own misreading and by concealing her bigoted statement.

This Day in Liberal Judicial Activism—September 20

by Ed Whelan

1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional. Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

“It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.”

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”

Posner’s Latest Book Is ‘Bats**t Crazy’

by Ed Whelan

That’s not my assessment of Richard Posner’s self-published book on pro se appeals. (I haven’t read the thing and don’t expect to.) Rather, it’s the assessment made by an admirer of Posner, Matthew Stiegler of CA3blog, who (after “start[ing] with the positive”) includes these critiques (underlining added):

At its heart, this book is a baffling, disjointed blow-by-blow of Posner’s many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.

The primary battle arose from Posner’s demand that he be allowed to re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it “uncontroversial” and he was “surprised” when it was met with first silence, then uniform rejection. When Wood told him so, Posner “angrily” threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything — memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.

And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because “uniquely among this court’s judges, [he had] a deeply felt commitment to the welfare of the pro se litigants.” But, by his own account, he only “became interested in the staff attorney program in the late winter/early spring of this year (2017).” And in his preceding three and a half decades on the court, “I’m pretty sure I’d never even discussed it with another judge.” Deeply? Uniquely?

It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se’s and televising arguments, when this case has nothing to do with either? Because “I’ve decided to note two recent clashes with colleagues.” This is not Posner-being-Posner, this is madness. . . .

Posner’s enemies will be chortling, but, for his many admirers, it’s just sad.

I’ll add just a couple of comments. First, I don’t grasp the supposed distinction between “Posner-being-Posner” and “madness”; I think that’s what’s often called a distinction without a difference. Second, as one of Posner’s critics, but not (in my view, at least) as one of his “enemies,” I don’t find much amusement in his buffoonery.   

This Day in Liberal Judicial Activism—September 19

by Ed Whelan

1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

This Day in Liberal Judicial Activism—September 17

by Ed Whelan

A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

Scalia Speaks—Faith and Judging

by Ed Whelan

As I’ve worked on co-editing Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (publication date October 3—pre-order now), I’ve repeatedly been struck by how timeless and ever-pertinent so many of Justice Scalia’s insights and observations are.

One current example: Justice Scalia’s 1992 speech that we’ve put under the title “Faith and Judging” cogently presents his view of the Catholic’s vocation as a judge—broadly the same view that I understand Seventh Circuit nominee (and former Scalia clerk) Amy Coney Barrett to have articulated. Here’s the starting point of analysis: “How one’s faith affects the practice of one’s vocation depends primarily upon what one’s vocation is.” If you read on, you’ll also find out what a Catholic hamburger is.

Relatedly: Scalia’s speech on “Church and State” sets forth his understanding of the “proper Christian attitude toward lawful civil authority”—an attitude that ought to be displayed not just by citizens but also by those charged with exercising portions of that authority. And his law-school graduation speech on “The Legal Profession” likewise emphasizes that the “kingdom of Caesar” must be separate from the “kingdom of God.”

Scalia Speaks—An Overview

by Ed Whelan

It’s barely two weeks now until the October 3 publication date of Scalia Speaks: Reflections on Law, Faith, and Life Well Lived—the book of Justice Scalia’s speeches that I’ve co-edited with his son Christopher—so I figure that I’ll do some more blog posts about the book (which you should pre-order now).

Scalia Speaks presents nearly fifty of Justice Scalia’s speeches, only some five or so of which have ever been made public before. The speeches are organized under six topics: on the American people and ethnicity; on living and learning; on faith; on law; on virtue and the public good; and on heroes and friends. They are full of Justice Scalia’s characteristic wisdom, clarity, and humor.

The breadth of the topics should convey that this is a collection designed for a general audience. Even the law speeches, which account for over a third of the book, have been selected from among the much larger pool of speeches on legal issues precisely because they are readily accessible to the intelligent non-lawyer.

The speeches vary in length. Most are shorter than ten pages, and the longest (on dissents) is only twenty pages.

Justice Ginsburg has kindly provided a beautiful introduction. Fittingly, one of the speeches is Justice Scalia’s playful and admiring tribute to her at a 1990 roast in celebration of her tenth anniversary on the D.C. Circuit.

Chris Scalia has penned a poignant introduction replete with his own reminiscences of his father.

I assure you: You will love this book, and your reaction to it will be even more enthusiastic than my Justice Scalia bobblehead’s:

Huge discounts—in the range of 40% or higher—are available on bulk orders (25+) of Scalia Speaks. Contact Owen Haney at [email protected] for more information.

This Day in Liberal Judicial Activism—September 15

by Ed Whelan

1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

Stone and Segall on Dianne Feinstein

by Ed Whelan

In a New York Times op-ed, law professors Geoffrey R. Stone and Eric J. Segall come to Senator Feinstein’s defense.

I’ll volunteer that the Stone/Segall piece is much more measured than I expected when I saw Stone’s and Segall’s names in the byline. It was Stone, after all, who absurdly argued some years ago that the five Catholic justices who ruled that the federal partial-birth abortion law enacted by Congress is constitutionally permissible “failed to respect the fundamental difference between religious belief and morality” (and who has been way out there on a host of other matters). And Segall was co-author (with Richard Posner) of a silly op-ed that grossly distorted Justice Scalia’s views in order to accuse him of promoting a “majoritarian theocracy.”

Stone and Segall concede that Feinstein was “surely guilty of poor word choice,” as “the term ‘dogma’ has an ugly historical context, often used by 19th-century Protestants to express anti-Catholic bigotry.” They minimize this as “an objection more to style than to substance,” but surely the same could be said of all sorts of expressions of bigotry. So I don’t quite see how they end up acquitting her of anti-Catholic bigotry.

Stone and Segall write:

[Senator Feinstein] was asking whether someone of deep faith and who had previously openly (and in our opinion eloquently) written about the relationship between judging and faith could cast aside her deeply held views when judging. Had Ms. Barrett said that her faith would in fact deeply influence her judging, would the question had been deemed so wrong? We think not.

Likewise, if senators had asked Justice Ruth Bader Ginsburg during her confirmation hearing if her long history litigating claims of gender discrimination would influence her judging, or if they had asked Chief Justice John Roberts whether his time working in the Bush administration would affect his decision making, no one would have blinked.

I agree with much of this. But unlike the facts of Ginsburg’s litigation history and Roberts’s executive-branch work, Barrett had made quite clear that it’s improper for judges to allow their religious convictions to influence their judging. So the hypothetical foundation for Feinstein’s questioning didn’t exist. Worse, her obstinate mischaracterization of Barrett’s position, while perhaps attributable to simple confusion, reasonably invites charges of bigotry.

Stone and Segall also write:

Judges regularly decide difficult legal issues in which the law at issue is unclear. In those open spaces, a judge’s personal values and life experiences will inevitably play a role in the outcome of the case. Given that Ms. Barrett had previously explored the relationship between her deeply held religious views and judging, Ms. Feinstein acted well within the bounds of fair questioning to probe deeply on this question.

I’m not persuaded that a judge’s “personal values and life experiences will inevitably play a role” in the outcome of some cases. But that doesn’t matter here. Because I instead think that it’s proper to try to ensure that that doesn’t happen, I agree with Stone and Segall that the territory is fair ground for senators to explore.

The problem is that Feinstein did not “probe deeply” or fairly. She instead used an obvious misreading (intentional or not) of what Barrett had written on the relationship between a judge’s religious faith and the judge’s legal duty to insinuate, in a bigoted fashion (“the dogma lives loudly within you”), that Barrett, as a faithful Catholic, would not comply with her legal duty as a judge.

‘Rampant Anti-Semitism shows Jews’ power’

by Ed Whelan

Maybe that will be the title of the sequel to Michael Sean Winters’s “Barrett’s confirmation hearing shows Catholicism’s power.”

Those familiar with the National Catholic Reporter won’t be surprised that it’s published a piece that defends Senator Feinstein and her fellow Democrats against charges of anti-Catholic bigotry in their questioning of Seventh Circuit nominee Amy Barrett; that takes various ill-informed whacks at conservative Catholics; and that conveniently fails to mention the trenchant criticisms of Feinstein by liberal non-Catholics like Harvard law professor Noah Feldman and Princeton president Christopher Eisgruber.

But everyone ought to be amazed by what Winters claims is “the most obvious fact about the controversy: There is a big, fat compliment to Catholics in this.” According to Winters, “It is unimaginable that a senator would pursue a similar line of questioning with a Presbyterian or a Congregationalist.” Perhaps so. But, I would argue, that’s not because Catholicism “is assumed to matter … as an intellectual force” but rather because bigotry against Catholics—or, more precisely, against a perceived brand of conservative Catholics—is so popular, indeed seemingly instinctive, in some quarters.

Winters also opines that Boston College professor Cathleen Kaveny had the better of Notre Dame professor Rick Garnett when she stated, “You can’t say that our faith on the one hand has ramifications for politics, law and the common good and on the other hand expect not to answer questions about it and claim that faith is purely private.” But Kaveny’s statement has two interrelated flaws. First, she misses the elementary point that it is entirely coherent to maintain that the role of a legislator or law professor is distinct from that of a judge. Second, Barrett never remotely claimed that her faith “is purely private.” Rather, she explained that “it is never, ever permissible for [judges] to follow their personal convictions in the decision of a case rather than what the law requires.”

Putting Senator Feinstein’s Anti-Catholic Bigotry in Context

by Ed Whelan

I’m going to address a couple of defenses of Senator Feinstein’s questioning of Seventh Circuit Amy Coney Barrett that have recently been offered, but before I do, I figured that it would be useful to place Feinstein’s controversial remarks in the broader context of the hearing.

1. At the outset of the hearing, Senator Grassley asked Barrett about her article on “Catholic Judges in Capital Cases.” In that article, as I explain here, Barrett argued that Catholic judges “are morally precluded from enforcing the death penalty” and should therefore recuse themselves from cases in which they might be required to do so. She emphatically rejected another alternative that many on the Left might favor—that Catholic judges should apply Catholic teaching and undermine the death penalty. Instead, she embraced the proposition that Catholic judges “cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”  

Grassley asked Barrett to “elaborate on these statements and discuss how you view the issue of faith versus fulfilling the responsibilities as a judge today.” Specifically: “When is it proper for a judge to put their religious views above applying the law?”

Barrett’s response:

Let me start with your very last question and say, “Never.” It is never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.… I continue to stand and vehemently believe the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, it is never, ever permissible for that judge to follow their personal convictions in the decision of a case rather than what the law requires.

2. In her first round of questioning immediately after Grassley, Feinstein asserted that Barrett’s response “leaves me a bit puzzled because you have a long history of believing that your religious beliefs should prevail.” Feinstein did not invite Barrett to respond to this slander, but instead went on to a series of questions about Roe v. Wade.

(Among her distortions, Feinstein stated that “as a textbook co-authored by Justice Neil Gorsuch last year points out, Roe is super-precedent because it has survived more than three dozen attempts to overturn it.” Wonder why that never surfaced in the Gorsuch hearing? Because Feinstein’s statement is false. The book, The Law of Judicial Precedent, instead states in its glossary (p. 802) that Roehas been called a superprecedent” (emphasis added)for that reason. The authors themselves don’t apply that label to it. Is that distinction too subtle for Feinstein and her crack staff?)

3. In response to Senator Hatch’s questioning, Barrett reiterated:

If a judge ever felt that for any reason that she could not apply the law, her obligation is to recuse. I totally reject and I have rejected throughout my entire career the proposition that, as you say, the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.

4. In response to Senator Hirono’s questioning, Barrett again stated:

I continue to subscribe to the core argument of that article, which is that a judge may never subvert the law or twist it in any way to match the judge’s convictions from whatever source they derive.

(Hirono, who has shown herself to be quite a demagogue, nonetheless baselessly asserted that there was some supposed inconsistency between Barrett’s article and her testimony. Clearly having failed to understand Barrett’s article—if, that is, she ever even looked at it—she ridiculously asserted that the article “was enough of a statement of what you believe the role of religion was that it caught my attention, because I thought that justice was supposed to be blind.”)

5. In response to Senator Blumenthal, Barrett pointed out some significant evidence for the proposition that she doesn’t let her religious views affect her legal judgment (versus no evidence for the contrary proposition):

I have gotten bipartisan support in ways that I have found actually very moving — all the law clerks the term that I clerked, [for] nine different Justices, many different views, all my colleagues, 70 members or more than 70 members of my academic colleagues, hundreds of Notre Dame alumni, people across the ideological spectrum. And if these people, especially people who disagree with me on policy matters, thought that I would be about the business of imposing my policy beliefs, I would not have received such bipartisan support. I have conducted myself as a professional my whole career and would continue to do so if I were confirmed.

6. It was after all of this that Feinstein made her controversial statement:

Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.

As I see it, and as I might address in follow-up posts, I think that this broader context reinforces charges that Feinstein’s remarks reek of anti-Catholic bigotry.

Reform the Blue Slip

by Ed Whelan

In an editorial today on Senator Al Franken’s refusal to return a favorable blue slip on Eighth Circuit nominee David Stras, the Wall Street Journal encourages Senate Judiciary Committee chairman Chuck Grassley to use the occasion to reform the committee’s blue-slip practice:

The blue slip has been around since 1917, but only a few Judiciary Chairmen have chosen to treat it as an absolute veto. Democratic Senator Ted Kennedy gave home state senators a “reasonable” deadline to return slips, and then put it to a committee vote on whether to proceed if they weren’t returned. Democrat Joe Biden reserved the right to ignore blue slips so long as an Administration consulted with home state Senators. Republican Strom Thurmond gave Members a mere seven days to return slips, then sometimes voted on nominees even over blue-slip objections.

Mr. Grassley has authority under Senate rules to suspend the blue-slip tradition on a case-by-case basis, and Mr. Franken’s abuse deserves to become his first example. The Iowan would also be justified in setting a time limit for returning a slip, since Mr. Franken also exploited the tradition by dragging out his decision on the Stras blue slip for months.

I’ve recommended a similar course of action. As I made clear in this 2006 Weekly Standard article and repeated in 2011, I’ve long been highly dubious of the expanded version of the blue-slip policy that gives individual senators an effective veto over federal appellate judgeships associated with their states (even though the laws do not assign appellate judgeships by state and the caseload of an appellate judge has no more connection to one state than to any other in a circuit).

‘Al Franken Supports State-Sanctioned Sterilization of Transgendered People’

by Ed Whelan

Senator Feinstein’s display of anti-Catholic bigotry at Seventh Circuit nominee Amy Coney Barrett’s hearing last week overshadowed an even more vicious—and equally baseless—attack by Senator Al Franken on Alliance Defending Freedom, a leading defender of religious liberty. Franken parroted the Southern Poverty Law Center’s claim that ADF is a “hate group” and faulted Barrett for speaking to ADF’s Blackstone Fellowship program.

SPLC has an ugly practice of promiscuously misusing labels like “hate group” and “anti-Muslim extremist” to stigmatize its political opponents and (as one liberal critic puts in this Politico article) “to milk money out of the public.” Its targets and victims include heroes like Ayaan Hirsi Ali, Carol Swain (an African-American academic whom, as she explains in a Wall Street Journal op-ed today, SPLC smeared as “an apologist for white supremacists”), Princeton professor Robert P. George, Ben Carson, and, perhaps most notoriously, the Family Research Council, which five years ago faced a near-massacre by an unstable individual incited by SPLC’s ugly rhetoric. So ADF has plenty of good company.

A has-been comic who has evidently lost his sense of irony, Franken faulted Barrett for failing to “vet” ADF even as he failed to vet SPLC’s attack on ADF. For example, Franken quoted and credited SPLC’s claim that ADF “has defended state-sanctioned sterilization of transgendered people abroad.” And he then adopted the charge as his own: “This is a group that calls for the sterilization of transgender people abroad.”

Franken’s claim is flatly false. If Franken or his staff had bothered to click SPLC’s supposedly supporting link, they would have discovered that the European Court of Human Rights case that SPLC was relying on was one that involved the vexing question whether and when government-issued documents should redefine a person’s biological sex to comport with the person’s gender identity. One possible answer to that question—an answer that is available to the federal government and to all fifty states—is to allow a sex change on a government-issued document only when the person has undergone a so-called sex-change operation. So the “state-sanctioned sterilization” that ADF purportedly defended was in fact an individual transgender person’s own decision to undergo surgical mutilation.

Even worse, SPLC and Franken are wrong in claiming that ADF advocated that government-issued documents should redefine a person’s biological sex only when that person has undergone a sex-change operation. ADF did not even address the question in its amicus brief but instead argued merely that the “mechanics” of changing the sex on government documents was “a matter for the member State” to determine (again, just as it is up to each state in this country).

By his support of Obamacare, Franken, I’ll note, supports government-authorized (“state-sanctioned”) taxpayer funding of sex-change operations. Indeed, he has urged the Department of Veteran Affairs to provide such operations to veterans (as “critically important care”). So the title of this post, while admittedly misleading, is far more accurate than his attack on ADF.

More broadly, there is no reason to impute to Barrett any of the various legal or policy positions that ADF has adopted.

Franken claims that he “would vet whoever asked me to speak, whether I was speaking for free or I was getting paid.” Who knows whether he vetted the Council on American-Islamic Relations (perhaps better known as CAIR) before he thanked the group for its “efforts to not only promote political engagement and protect civil liberties, but to further our national dialogue”? This is the same CAIR that the Anti-Defamation League faults for its “anti-Israel agenda” and for its chapters that “partner with various anti-Israel groups that seek to isolate and demonize the Jewish State.” My point, of course, is not to suggest that Franken shares any of CAIR’s positions, including its “anti-Israel agenda.” By the same token, there’s no reason to assume that Barrett’s agreement to speak to ADF’s Blackstone Fellows means that she shares any of ADF’s positions.

(Disclosure: I have spoken to ADF’s Blackstone Fellows and have been pleased to work with ADF on matters of common interest.)


This Day in Liberal Judicial Activism—September 12

by Ed Whelan

2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.”

Posner and ‘Beasts’

by Ed Whelan

In a New York Times interview about his decision to retire, former Seventh Circuit judge Richard A. Posner reiterated his candid description of his lawless “pragmatism”:

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Posner also divided his critics into two camps: those who hold a “formalist” conception of the law and “reactionary beasts [who] want to manipulate the statutes and the Constitution in their own way.”

His dehumanizing rhetoric aside, Posner draws a very sensible line. As someone who has steadfastly advocated formalism and who offered a formalist critique of Posner’s pragmatism well before Posner’s sharp turn to the Left, I’m happy to be on the right side of that line.

Yet I have to wonder whether Posner can be trusted to apply the line he draws. If there is a single decision of Posner’s that conservatives have criticized on non-formalist, results-oriented grounds, I can’t think what it is. Further, Posner has shown himself eager to impute illegitimate motives to judges who reach results that he agrees are dictated by formalism. Thus, for example, he states in his recent mess of a book (see my series of posts—parts 1, 2, 3, 4, and 5) that the four dissenters in Obergefell “were Catholic” and that “it’s difficult to believe that their religious beliefs play no role in their votes in cases that have a religious dimension.” And he’s also tossed an error-strewn ad hominem at me.

Moreover, Posner has forfeited any legal ground for opposing the supposed “reactionary beasts.” He wants to “manipulate the statutes and the Constitution” in his way. They want to manipulate them in theirs. So Posner has much more in common with the “reactionary beasts” than he evidently recognizes. Maybe that’s fitting for someone who says he has “exactly the same personality” as his cat—“Cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”