This Day in Liberal Judicial Activism—February 18

by Ed Whelan

1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.

This Day in Liberal Judicial Activism—February 17

by Ed Whelan

1964—In Wesberry v. Sanders, the Supreme Court somehow extracts from the provision in Article I, section 2 that members of the House of Representatives be chosen “by the People of the several States” a supposed mandate that congressional districts in each state have, as nearly as practicable, equal populations.

In dissent, Justice Harlan lambastes the majority opinion as “unsound logically on its face, and demonstrably unsound historically.” He explains that Article I, section 4 confers on each state “plenary power to select their allotted Representatives in accordance with any method of popular elections they please, subject only to the supervisory power of Congress.” He closes by observing that the Constitution “does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short,” and by warning that the Court’s “stability” depends “not only on its being alert to keep the other branches of government within constitutional bounds, but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.”

This Day in Liberal Judicial Activism—February 16

by Ed Whelan

2016—Harry Reid, D-Fantasyland. In an op-ed in the Washington Post opposing the Senate Republican strategy to keep open through the November 2016 elections the Supreme Court vacancy resulting from Justice Scalia’s death, Democratic leader Reid claims that Senate Democrats “always guaranteed Supreme Court nominees a fair hearing and a floor vote.”

Yes, believe it or not, that’s the same Reid who, as Senate minority leader in 2006, voted to support an attempt to filibuster the nomination of Justice Alito (and thus prevent a floor vote). That filibuster attempt won the support of 25 Democratic senators (a majority of the caucus), including Barack Obama, Joe Biden, Hillary Clinton, Patrick Leahy, Chuck Schumer, and Dick Durbin.

Some Senators Know How to Consult

by Jonathan H. Adler

On Monday, the White House rolled out its eleventh wave of judicial nominees. As Carrie noted earlier this week, the latest slate of nominees continues the Administration’s established practice of selecting highly qualified, conservative nominees for the federal appellate bench. Although there have been a few hiccups, the Trump Administration’s overall record on judicial nominations remains stellar — and much better than some of us anticipated.

One thing that’s particularly interesting about the latest slate of nominees is that it includes three picks for the circuit courts of appeals from states with two Democratic Senators — Mark Bennett from Hawaii for the U.S. Court of Appeals for the Ninth Circuit and Michael Scudder and Judge Amy St. Eve of Illinois for the U.S. Court of Appeals for the Seventh Circuit. Even more interesting is the fact that all three of these nominees have been endorsed by their home-state Senators. Hawaii Senators Hirono and Schatz praised the Bennett pick, and Illinois Senators Durbin and Duckworth praised the Scudder and St. Eve picks. What’s going on?

A cynic might suspect that the Democratic support for Trump’s latest nominees reflects that the Administration has turned away from picking conservative nominees, but that’s not the case. The latest nominees are in line with prior appellate nominees from states with Democratic Senators — including David Stras (Eighth Circuit), Joan Larsen (Sixth Circuit), and Joel Carson (Tenth Circuit), just to name a few. They are highly qualified, able jurists that are hard for home-state Senators to oppose on the merits.

These nominations are also the product of good faith consultation between the White House and Senate offices. Contrary to some suggestions in the press, the White House is not refusing to consult with Democratic Senators on judicial nominations. To the contrary, it is actively seeking good-faith input from home state Senators of both parties.

This is worth keeping in mind when one considers that there remain a significant number of appellate vacancies in states with one or two Democratic Senators, including California, Ohio, and New York, some of which have been designated judicial emergencies. It may also explain why, if nominees for some of the seats are eventually forthcoming, Senator Grassley might ignore the lack of a blue slip from particularly intransigent Senators. 

The latest nominations show — perhaps surprisingly — that the White House is willing to consult with Senate Democrats on judicial nominations in good faith. Insofar as some Senators are unwilling to play along, I suspect there is a limit to how long this will be allowed to hold up the process. Eventually the White House will tire of waiting for good-faith consultation that never comes, and I doubt Senator Grassley will allow intransigent Senators to use blue slips to block highly qualified nominees.

This Day in Liberal Judicial Activism—February 15

by Ed Whelan

2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.

As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

2017—In a majority opinion written by Judge Karen Nelson Moore and joined by Judge Jane Stranch, a divided Sixth Circuit panel rules (in Bormuth v. County of Jackson) that a county board of commissioners’ practice of beginning its monthly meetings with a prayer violates the Establishment Clause. In dissent, Judge Richard Griffin will object that the practice of legislative prayer dates back to the founding of the Republic and that the Supreme Court has twice held that it does not violate the Establishment Clause.

Five months later, the en banc Sixth Circuit will reject the panel ruling by a vote of 9 to 6.

Re: Illinois Bishop Repudiates USCCB Amicus Brief in Public-Sector Union Dues Case

by Ed Whelan

Bishop Paprocki’s repudiation of the USCCB’s amicus brief in Janus v. AFSCME ought to make clear to the National Catholic Reporter’s Michael Sean Winters why he shouldn’t have been “gobsmacked” by my critique of that brief. At the risk of overkill, let me address Winters’s other comments contesting my initial post.

Winters claims that the USCCB brief “is so obviously in a long line of explicit church teaching.” But as I explained, today’s public-sector unions are enemies of important Catholic causes. That sad reality, which Winters does not address or dispute, must be factored into the prudential judgment that any reasonable person would make about coerced union fees. Indeed, “a long line of explicit church teaching” makes this clear. In Rerum Novarum, Pope Leo XIII warned Catholic workers not to join unions that “are managed on principles ill-according with Christianity and the public well-being,” and he insisted that “working men’s associations” must “look first and before all things to God” and “must pay special and chief attention to the duties of religion and morality.” In Populorum Progressio, Pope Paul VI emphasized that unions forfeit the justification for their existence when they adopt “a materialistic and atheistic philosophy” that “shows no respect for a religious outlook on life, for freedom or human dignity.”

Winters faults me for not treating earlier statements of staff bureaucrats as the positions of American bishops. I recognize that the bishops have (unwisely, in my judgment) often delegated to unsupervised or poorly supervised staffers the authority to speak on their behalf. But I don’t accept the often highly implausible fiction that statements made by those staffers in fact reflect the considered positions of the bishops. Bishop Paprocki’s statement shows that I am right to reject this fiction.

Winters also tries to use against me my punctiliousness and transparency in making even minor changes to my posts. With the snarky advice to me to “Get a new research team!,” Winters claims at the outset of his comments that my post has “corrections [plural] in the body of the text” and that a second post of mine “explain[s] an additional correction.” In my initial post, I made a single change, eliminating a one-sentence “Indeed” point. My second post  illustrated that the USCCB amicus brief had caused “the dangerous misperception that [the USCCB] considers right-to-work laws in the public sector to violate Catholic social teaching as severely as laws imposing abortion and same-sex marriage do.” I merely noted in one bracketed sentence that I had tweaked a passage to soften a criticism. I look forward to Winters’s many needed corrections to his comments.

Illinois Bishop Repudiates USCCB Amicus Brief in Public-Sector Union Dues Case

by Ed Whelan

In a post last week, I explained why I found the amicus brief submitted by the United States Conference of Catholic Bishops in the soon-to-be-argued case of Janus v. AFSCME to be badly misguided in important ways. A statement issued yesterday by Bishop Thomas John Paprocki of the diocese of Springfield, Illinois—the epicenter of the dispute in Janus—forcefully confirms my critique.

In his statement, Bishop Paprocki repudiates the USCCB’s amicus brief. Contrary to the “public perception” generated by news articles, he explains, the brief does not set forth “the position adopted by the bishops of the United States,” as “no vote was taken on whether to file such a brief.” Bishop Paprocki also disputes the brief’s account of Catholic social doctrine: “While church teaching clearly supports freedom of association and the right to form and join a union, it does not mandate coercing people to join a union or pay dues against their will.” More broadly, whether or not to support “right to work” laws “is a matter of prudential judgment on which reasonable people can disagree as to whether the rights of association and free speech are helped or hindered by mandatory union dues.”

In comments yesterday contesting my post, Michael Sean Winters of the National Catholic Reporter declared himself “gobsmacked to see [me] suggesting the staff at the U.S. bishops’ conference ran amok on this brief when it is so obviously in a long line of explicit church teaching.” Bishop Paprocki’s statement shows that the USCCB bureaucrats indeed “ran amok on this brief.” Further, the brief is not “so obviously in a long line of explicit church teaching.” I will address Winters’s comments on this point in a separate post.

This Day in Liberal Judicial Activism—February 14

by Ed Whelan

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” only in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

Judicial Nominations Update

by Carrie Severino

The White House continues to nominate excellent nominees to fill the ever-increasing number judicial vacancies. Yesterday, President Trump announced his intent to nominate an eleventh wave of judicial nominees, which includes Court of Appeals nominees Andrew Oldham (Fifth Circuit), Michael Scudder (Seventh Circuit), Amy St. Eve (Seventh Circuit), and Mark Bennett (Ninth Circuit).

As the Democratic minority continues its unprecedented insistence on time-consuming cloture votes for nominees—including the numerous judicial nominees who have been reported out of the Senate Judiciary Committee unanimously—the number of judicial nominees awaiting full Senate confirmation votes continues to tick up: presently there are 29 judicial nominees awaiting floor votes. Given that cloture requires 30 hours of debate time for each nominee, the Senate would have to work continuously all day and night for over 36 days straight in order to process all of the pending nominees.

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

Current and known future vacancies: 176

Courts of Appeals: 23

District/Specialty Courts*: 153

Pending nominees for current and known future vacancies: 53

Courts of Appeals: 4

District/Specialty Courts: 49

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

Nominees Awaiting Floor Votes: 29

Courts of Appeals: 3

District/Specialty Courts: 26

Nominees Confirmed by the Senate: 24

Supreme Court: 1

Courts of Appeals: 13

District/Specialty Courts: 10

This Day in Liberal Judicial Activism—February 13

by Ed Whelan

2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court. Never mind, as Judge Diarmuid F. O’Scannlain points out in dissent, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin). As O’Scannlain observes:

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.

Ten judges will dissent from the Ninth Circuit’s decision to deny rehearing en banc. Ultimately, after the Supreme Court GVRs (grants review of, vacates the ruling in, and remands) the case, Judge O’Scannlain will write a new panel opinion in 2009 that rules that the prison librarian is entitled to qualified immunity.

Scheduled Events (Updated)

by Ed Whelan

I have a busy schedule of engagements this winter and spring. Most relate to Scalia Speaks (the highly acclaimed, and New York Times bestselling, collection of Justice Scalia’s speeches that I’ve co-edited).

I’m posting my current schedule here for two reasons: first, to answer the many inquiries I’m receiving about upcoming Scalia Speaks events; and second, in case you’re interested in arranging an event with me on Scalia Speaks, judicial nominations, or any other topic, to invite you to explore working that into my existing out-of-town trips.

I’ll note that I’ve recently been invited by a leading D.C. law firm to discuss Scalia Speaks at a firm-wide lunch. If there are other D.C. law firms that would be interested in lunches like this, either now or when you have summer associates around, please let me know. I’ll favor invitations that promise strong attendance.

2/13 Legatus Orange County

2/14 Los Angeles/Federalist Society

2/15 Orange County/Federalist Society

2/16 San Diego/Federalist Society

2/20 Atlanta/Federalist Society

3/7 University of Dallas

3/8 SMU/Federalist Society

3/10 Federalist Society student symposium, Georgetown (booksigning only)

3/12 UC Berkeley/Federalist Society

3/13 San Francisco/Federalist Society (judicial nominations/evening)

3/14 San Francisco (private event/noon)

3/14 Silicon Valley/Federalist Society

3/19 D.C. law firm

3/20 Vanderbilt/Federalist Society

3/20 Nashville/Federalist Society

3/21 Houston/Federalist Society

3/21 Houston/St. Thomas More Society

3/22 South Texas College of Law/Federalist Society

3/28 Cincinnati/Federalist Society

3/29 Columbus/Federalist Society

4/5 Akron/Federalist Society

4/5 Case Western/Federalist Society

4/13 Baton Rouge/Federalist Society (judicial nominations)

4/14 New Orleans (American Academy of Appellate Lawyers – judicial nominations)

4/24 Kansas City/Federalist Society

4/25 University of Missouri/Federalist Society

4/26 St. Louis/Federalist Society

6/4 Supreme Court Historical Society

6/7 Denver/Federalist Society

6/7 Denver/Mountain States Legal Foundation

President Trump Announces Nominees to Fifth, Seventh, and Ninth Circuits

by Carrie Severino

Today President Trump announced his eleventh wave of judicial nominees since his Inauguration, which includes nominees to the Fifth Circuit, Seventh Circuit and Ninth Circuit Courts of Appeal.  Below are the links to the bios of these new nominees; I look forward to seeing them move through the confirmation process. 

Fifth Circuit:  Andrew Oldham 

Seventh Circuit:  Michael Scudder

Seventh Circuit:  Judge Amy St. Eve

Ninth Circuit:  Mark Bennett

 

 

Who is Andrew Oldham?

by Carrie Severino

Andrew Oldham is President Trump’s nominee to the U.S. Court of Appeals for the Fifth Circuit from Texas.

Age: 39 (approximate)

Current Position: General Counsel, Office of the Governor, State of Texas

Education:

  • B.A., University of Virginia (2001), highest honors
  • M.Phil., University of Cambridge (2002), first class
  • J.D., Harvard Law School (2005), magna cum laude

Judicial Clerkships: Judge David Sentelle, U.S. Court of Appeals for the D.C. Circuit (2005-2006); Associate Justice Samuel Alito, U.S. Supreme Court (2008-2009)

Experience:

  • 2006-2008: Attorney-Advisor, Office of Legal Counsel, Department of Justice (Washington, DC)
  • 2009-2012: Associate, Kellogg, Huber, Hansen, Todd, Evans & Figel (Washington, DC)
  • 2012-2015:  Deputy Solicitor General, Office of the Attorney General, State of Texas (Austin, TX)
  • 2015-January 2018:  Deputy General Counsel, Office of the Governor, State of Texas (Austin, TX)
  • January 2018:  General Counsel, Office of the Governor, State of Texas (Austin, TX)

Notable matters:

  • As Deputy Solicitor General, Mr. Oldham appeared twice before the U.S. Supreme Court on behalf of the State of Texas.
  • Mr. Oldham has been actively involved in representing the State of Texas in its opposition to a 2014 Executive Action on immigration, the Deferred Action for Parents of Americans (“DAPA”), and the expansion of the 2012 Deferred Action for Childhood Arrivals (“DACA”).
  • Mr. Oldham is a frequent speaker and panelist for The Federalist Society.

Who is Michael Scudder?

by Carrie Severino

Michael Scudder is President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit from Illinois.

Age: 47 (approximate)

Current Position: Partner, Skadden, Arps, Slate, Meagher & Flom LLP (Chicago, IL)

Education:

  • B.B.A., St. Joseph’s College (1993)
  • J.D., Northwestern University School of Law (1998); Editor-in-Chief, Northwestern University Law Review

Judicial Clerkships: Judge Paul V. Niemeyer, U.S. Court of Appeals for the Fourth Circuit (1998-1999); Associate Justice Anthony M. Kennedy, U.S. Supreme Court (1999-2000)

Experience:

  • 2009-Present: Partner, Skadden, Arps, Slate, Meagher & Flom LLP (Chicago, IL)
  • 2007-2009: General Counsel to the National Security Council; Senior Associate Counsel to the President of the United States (Washington, D.C.)
  • 2006-2007: Counsel to the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.)
  • 2002-2006: Assistant U.S. Attorney, U.S. Attorney’s Office for the Southern District of New York (New York, NY)

Notable Matters:

  • Mr. Scudder’s practice at Skadden focuses on white-collar criminal defense and commercial litigation. He has represented corporations, corporate boards of directors, and corporate officers in internal and government investigations before the DOJ, the SEC, the FDIC, the IRS and the PCAOB.
  • As an AUSA in Manhattan, Mr. Scudder handled numerous trials and argued several appeals before the U.S. Court of Appeals for the Second Circuit.
  • Mr. Scudder has taught trial advocacy at Northwester University Law School since 2009 and national security law and criminal law at the University of Chicago since 2013.
  • Mr. Scudder is a registered CPA in Illinois and worked for Ernst & Young before attending law school.

Awards: In 2014, Mr. Scudder was recognized for his pro bono work by the U.S. District Court for the Northern District of Illinois. In 2015, Leadership Greater Chicago named Mr. Scudder to its Fellows Program. Mr. Scudder also was named to the Chicago Council on Global Affairs Emerging Leaders Class in 2010.

Who is Judge Amy St. Eve?

by Carrie Severino

Judge Amy St. Eve is President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit from Illinois.

Age: 53 (approximate)

Current Position: U.S. District Judge for the U.S. District Court for the Northern District of Illinois (Chicago, IL)

Education:

  • B.A., Cornell University (1987), with honors
  • J.D., Cornell University School of Law (1990), magna cum laude (first in graduating class); Order of the Coif; Articles Editor, Cornell University Law Review

Experience:

  • 1990-1994: Associate, Davis Polk & Wardell LLP (New York, NY)
  • 1994-1996: Associate Independent Counsel, Office of the Independent Counsel (Little Rock, AR)
  • 1996-2001: Assistant U.S. Attorney, U.S. Attorney’s Office for the Northern District of Illinois (Chicago, IL)
  • 2001-2002, Senior Counsel, Abbott Laboratories (Abbott Park, IL)
  • 2002-Present: U.S. District Judge for the U.S. District Court for the Northern District of Illinois (Chicago, IL)

Notable Matters:

  • In 2002, President George W. Bush nominated Judge St. Eve to the U.S. District Court for the Northern District of Illinois. She was confirmed on August 1, 2002 by a voice vote.
  • During her tenure as a U.S. District Judge in Chicago, Judge St. Eve has presided over a number of high profile trials, including the fraud trials of media mogul Lord Conrad Black and Illinois fundraiser Tony Rezko.
  • As an Associate Independent Counsel working on the Whitewater Investigation, Judge St. Eve prosecuted former Arkansas Governor Jim Guy Tucker and Jim and Susan McDougal, obtaining convictions in their fraud trials.
  • Judge St. Eve is an Adjunct Professor at Northwestern Law School where she teaches trial advocacy.

Professional Affiliations: Judge St. Eve is a member of the Board of Directors of the Chicago branch of the Federal Bar Association. She is also a member of the American Bar Association, the Chicago Bar Association, the Illinois State Bar Association, and the Women’s Bar Association in Chicago.

Biographical Notes: Judge St. Eve is originally from Belleville, Illinois. She is married and has three children.

 

Who is Mark Bennett?

by Carrie Severino

Mark Bennett is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from Hawaii.

Age: 64 (approximate)

Current Position: Director, Starn, O’Toole, Marcus & Fisher (Honolulu, HI)

Education:

  • B.A. Union College (1976), summa cum laude
  • J.D., Cornell University School of Law (1979), magna cum laude; Editor, Cornell University Law Review

Judicial Clerkships: Judge Samuel Pailthorpe King, U.S. District Court for the District of Hawaii (1979-80)

Experience:

  • 2010-Present: Director, Starn, O’Toole, Marcus & Fisher (Honolulu, HI)
  • 2003-2010: Attorney General of Hawaii (Honolulu, HI)
  • 1991-2002: Partner, McCorriston Miller Mukai MacKinnon LLP (Honolulu, HI)
  • 1982-1989: Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Hawaii (Honolulu, HI)
  • 1980-1982: Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia (Washington, D.C.)

Notable Matters:

  • In 2003, Governor Linda Lingle appointed Mr. Bennett Attorney General of Hawaii. Mr. Bennett was the first attorney general appointed by a Republican governor since the governorship of William F. Quinn, the first elected governor of Hawaii.
  • Mr. Bennett has argued and briefed numerous cases before the U.S. Court of Appeals for the Ninth Circuit and the Hawaii Supreme Court. Mr. Bennett has also argued cases before the U.S. Supreme Court in Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009), and Lingle v. Chevron, 544 U.S. 528 (2005). As an AUSA in Washington D.C. and Honolulu, Mr. Bennett litigated both criminal and civil cases.
  • In private practice, Mr. Bennett specializes in complex litigation, appellate litigation, antitrust, and government relations. He has tried numerous complex jury trials, and negotiated settlements worth $1 billion.
  • Before becoming Attorney General of Hawaii, Mr. Bennett served the state pro bono as a special deputy attorney general and a special assistant prosecuting attorney.

Awards:

  • Best Lawyers in America (Antitrust Law, Antitrust Litigation, Appellate Practice, Bet-The-Company Litigation, Government Contracts, Environmental Litigation, Insurance Litigation and Commercial Litigation); “Lawyer of the Year” in Honolulu (2015-2018); Top 25 Hawaii Super Lawyers (2011-2018)
  • Mr. Bennett is a recipient of the U.S. Department of Justice Leadership Award (2009); the Hawaii Law Enforcement Elwood J. McGuire Award for Contributions to Law Enforcement (2007); and the Attorney General’s Special Achievement Award (1986)

Professional Affiliations: Mr. Bennett is a fellow of the American College of Trial Lawyers

Atlanta Event on Scalia Speaks

by Ed Whelan

After my several events this week in southern California, I’ll be in Atlanta next Tuesday, February 20, to discuss Scalia Speaks with the Atlanta lawyers chapter of the Federalist Society. More information on the noontime event is here.

This Day in Liberal Judicial Activism—February 12

by Ed Whelan

2015Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.

Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state marriage laws wouldn’t be accepted by the country. (Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what the American public will acquiesce in are closely linked to her view of what the Court should impose.)

This Day in Liberal Judicial Activism—February 10

by Ed Whelan

1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

NYT Op-Ed Smears CA5 Nominee Kyle Duncan

by Ed Whelan

Laverne Thompson, the author of a New York Times op-ed attacking Fifth Circuit nominee Kyle Duncan, is the victim of a grievous injustice. Her husband John Thompson was convicted of armed robbery and murder, and spent eighteen years in prison, including fourteen years on death row, as a result of a prosecutor’s deliberate suppression of exculpatory evidence. But the horrible suffering that she and her husband endured does not remotely justify her ill-founded and bizarre attack on Duncan.

Duncan argued and won a Supreme Court ruling, Connick v. Thompson (2011), holding that the district attorney’s office that employed the rogue prosecutor could not be held liable under 42 U.S.C. § 1983 for failure to train based on a single violation of the Brady rule (which requires prosecutors to disclose exculpatory evidence to defense counsel). Far from condoning the actions of the rogue prosecutor, Duncan repeatedly emphasized that Mr. Thompson had been “grievously injured” by the “flagrant” Brady violation and that he deserved the maximum compensation available under the state’s wrongful-conviction statute.

Mr. Thompson’s federal civil-rights case against the district atttorney’s office involved very different legal issues. Under the settled law of municipal liability under section 1983, the district attorney’s office was not vicariously liable for the wrongdoing of its employees. The theory of liability that Mr. Thompson relied on was instead that the office had failed to train its prosecutors adequately and that that failure had caused his injury. But, as the Supreme Court explained in overturning the jury verdict in favor of Mr. Thompson, a claim based on failure to train must typically be proven by a “pattern of similar constitutional violations” by employees that is sufficient to put the office on notice that its training regimen is deficient. Duncan argued, and a five-justice majority agreed, that Mr. Thompson had failed to establish a “pattern of similar Brady violations” that would have placed the office on notice that it should remedy it training practices.

It is difficult to discern Mrs. Thompson’s objection to Duncan’s arguments, beyond the fact (which ought to accrue to his credit) that those arguments prevailed. The one specific charge she makes is that he “devised the argument that, although the district attorney had withheld evidence in many cases involving innocent men, there was no need to train lawyers in his office because they would have learned about their obligation in law school.” I see nothing in his brief that can fairly be reduced to that argument.

The ABA rated Kyle Duncan “well qualified” for the Fifth Circuit. (A “substantial majority” of the committee rated him “well qualified,” and a minority rated him “qualified.” As the ABA explains, “the majority rating is the official rating.”) Opponents of his nomination had two months before his hearing to try to make their case against him and another six weeks before the Senate Judiciary Committee favorably reported his nomination to the Senate floor. The sort of desperate last-ditch smearing that Mrs. Thompson has unfortunately been persuaded to commit is as ugly as it is baseless.