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. 

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

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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.” 

Re: Erwin Chemerinsky Is Beyond Parody

by Ed Whelan

One follow-up to this post: Both in this Politico whack at Gorsuch (which I had forgotten about) and in his San Francisco Daily Journal piece, Erwin Chemerinsky writes:

In deciding whether to filibuster, Democrats should remember that there were 48 votes against Clarence Thomas and 42 votes against Samuel Alito. They could have been blocked by filibusters, and it was a huge mistake that Democrats did not do so.

Does Chemerinsky really not recall that, with his urging, Democrats tried to filibuster the Alito nomination but failed (on a cloture vote of 72 to 25)? Is he really so clueless about the political process to think that a senator’s vote against a nomination means that he would necessarily also vote to filibuster that nomination?  

Left-Wing Letter Against Gorsuch—Part 3

by Ed Whelan

Okay, let me complete my wade (see Part 1 and Part 2 posts) through the sludge of the LCCHR letter against Supreme Court nominee Neil Gorsuch:

“Students with Disabilities”: LCCHR complains of three rulings by Gorsuch involving the Individuals with Disabilities Education Act.

I’ve already extensively addressed Gorsuch’s unanimous opinion in Thompson R2-J School District v. Luke P. in the second half of this blog post, so I’ll just highlight here that his opinion steadfastly sought to follow the Supreme Court’s 1982 ruling in Board of Education v. Rowley and succeeded so well in doing so that Judge Mary Beck Briscoe, a very liberal Clinton appointee, joined his opinion in full.

LCCHR faults Gorsuch for supposedly holding in Garcia v. Board of Education of Albuquerque Schools that “a student who left the school out of frustration with the school’s failure to follow the IDEA was entitled to no remedy.” But what Gorsuch held was that the district court did not abuse its broad discretion under IDEA in denying relief to the student. In part that was because the student already possessed the same right (to provision of a “free and appropriate public education”) that she sought to have imposed as a remedy. In part it was because the student, with her “significant record of disciplinary problems and truancy,” had “demonstrated a clear commitment to avoid school and [to] disregard the educational opportunities available to” her. (LCCHR’s assertion that the student “left the school out of frustration with the school’s failure to follow the IDEA” is a fabrication.) Once again, Briscoe joined Gorsuch’s opinion in full.

The third ruling that LCCHR complains about is A.F. v. Española Public Schools. The case presents a complicated statutory question whether a student who has settled, and had dismissed with prejudice, an IDEA complaint may pursue under other federal disabilities laws the same relief that she could have pursued under IDEA. It would take far too much time and space to present the competing views of Gorsuch’s majority opinion and the dissent (by Briscoe). I’ll limit myself to noting that the tie-breaking vote in favor of Gorsuch’s position was cast by Clinton appointee Michael R. Murphy.

“Corporate Bias”: LCCHR imagines that Gorsuch’s concurring opinion (in Gutierrez-Brizuela v. Lynch) calling into question the Chevron doctrine of judicial deference to administrative agencies reflects some sort of “corporate bias” on his part. But as I have explained, and as some folks on the Left fearing a Trump administration are coming to realize, the Chevron doctrine has no inherent ideological valence; how it operates in practice depends on who is running the agencies. Instead of recklessly impugning Gorsuch’s motives, defenders of Chevron should engage the separation-of-powers arguments that Gorsuch has made.

“Money in Politics”: LCCHR contends that Gorsuch’s concurring opinion in Riddle v. Hickenlooper “suggested courts should afford strict scrutiny … to political contribution limits.” But as I explained in this post, Gorsuch was simply highlighting the “conflicting clues” he saw in the Supreme Court guidance on the proper level of scrutiny. His approving statement about how the “federal government regulates campaign contributions” contradicts LCCHR’s silly assertion that he would be “extremely hostile to campaign finance reform measures and would essentially gut the ability of Congress and the states to set any reasonable limits on money in our elections.”

“Environmental Protection”: Beyond repeating its Chevron canard, LCCHR complains about two of Gorsuch’s cases.

LCCHR argues that Gorsuch’s dissent in United States v. Nichols “tried to revive an obscure legal doctrine that could strike down many significant environmental laws.” In case you’re wondering, that “obscure legal doctrine” that LCCHR doesn’t dare to identify is, as Gorsuch puts it, that “the prosecutor isn’t allowed to define the crimes he gets to enforce.” Or, if you prefer, that under the so-called nondelegation doctrine, the Constitution’s separation of powers places some limits on the legislative powers that Congress may delegate to executive-branch agencies, especially when criminal liability is involved.

LCCHR also complains that Gorsuch “concurred” in Wilderness Society v. Kane County. In that case, the en banc Tenth Circuit ruled by a vote of 9 to 2 that an environmentalist group’s lawsuit to vindicate the property rights of the federal government should have been dismissed. The majority opinion for six judges ruled that the group lacked prudential standing to sue. Gorsuch did not join that opinion but instead wrote an opinion concurring in the judgment that rested on mootness and redressability grounds. One of the two judges who joined his opinion was liberal Clinton appointee Mary Beck Briscoe. In quoting the dissent’s criticism of the majority opinion, LCCHR leaves the false impression that it applies to Gorsuch’s concurrence.

LCCHR also errs by omission. It fails to note, much less credit Gorsuch for, his opinion in Energy & Environmental Legal Institute v. Epel, which rejected a constitutional challenge to a Colorado clean-energy law. Lefty environmental groups celebrated Gorsuch’s ruling when it was issued.

* * *

I thank the tireless readers who have made it with me to the end. I would not have bothered to address LCCHR’s letter so extensively but for the fact that some people, whether from gullibility or political bias, might be inclined to take it seriously. But what we see here, as we’ve already seen with People for the American Way and American Bridge, is a shoddy and thinly disguised political attack made by folks who amply demonstrate that they have no idea what good judging entails or no interest in seeing it prevail.

Erwin Chemerinsky Is Beyond Parody

by Ed Whelan

For most of the last year, law professor Erwin Chemerinsky was propagating the “silly” and “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on President Obama’s nomination of Merrick Garland. Never mind that back in 2005 Chemerinsky wrote a law-review article that defended the use of the filibuster to block judicial nominations, including Supreme Court nominations. Never mind that in January 2006 he urged Senate Democrats to filibuster the Alito nomination. (See cites in linked post.)

In a Los Angeles Daily News op-ed (and in a very similar piece, not available online, in the San Francisco Daily Journal, a newspaper for lawyers), Chemerinsky now calls for Senate Democrats to filibuster the Gorsuch nomination. Chemerinsky does not acknowledge, much less try to explain away, the blatant contradiction in his positions. (And, no, as I explain in the link above, Chemerinsky can’t plausibly claim that the “timely vote” to which he said Garland was constitutionally entitled was something other than a final Senate floor vote on the nomination.) He even continues to claim that Senate Republicans “stole” the seat.

What’s perhaps most telling is that Chemerinsky makes his call for a filibuster in the midst of a cartoonish attack on originalism. Is there any stronger indictment of Chemerinsky’s “living Constitution” approach than the fact that Chemerinsky’s positions on the constitutionality of the filibuster flip back and forth depending on who is president?

Left-Wing Letter Against Gorsuch—Part 2

by Ed Whelan

Before continuing my section-by-section response to the LCCHR letter against Supreme Court nominee Neil Gorsuch, I’d just like to observe that one of the most galling aspects of the letter is its signatories’ purported opposition to “litmus tests.” Never mind its failure to distinguish between tests of judicial philosophy and tests of political ideology. The larger scandal is that the LCHHR letter is nothing more than a series of political litmus tests.

The letter rarely acknowledges, much less engages, Gorsuch’s legal reasoning and instead persistently objects (even if wild distortions are required to do so) to the results that he reaches. In its manifest contempt for legal reasoning, the letter thoroughly discredits every organization that has signed it.

Back to the letter’s specific claims:

“Women’s Health”: It’s no surprise that LCCHR goes way off the deep end here.

Of the Tenth Circuit’s decision in Hobby Lobby Stores v. Sebelius, LCCHR says that Gorsuch “signed on to an opinion allowing certain for-profit employers to refuse to comply with the birth control benefit in the Affordable Care Act.” It’s wrong that the HHS contraceptive mandate was set forth in the Obamacare statute. (It was imposed by regulation.) But more importantly, it omits that Gorsuch and the Tenth Circuit majority were applying the federal Religious Freedom Restoration Act; that the Supreme Court affirmed their judgment and reasoning; and that only two justices (Ginsburg and Sotomayor) adopted the (clearly wrong) position that a for-profit corporation is never a person capable of an exercise of religion within the meaning of RFRA. LCCHR’s claim that Gorsuch’s legal reading enables employers “to block employees’ insurance coverage of birth control” also misses the elementary point that the Supreme Court and the Tenth Circuit, faithfully applying the RFRA test, recognized that the government had ways of providing such access that didn’t dragoon religious objectors.​

LCCHR contends that in Little Sisters of the Poor v. Burwell Gorsuch “joined a dissent that argued that the simple act of filling out an opt-out from constitutes a substantial burden on religious exercise.” Wrong. What the dissent argued, correctly, is that subjecting someone to massive fines for refusing to execute a document in violation of her religious beliefs imposes a substantial burden on her religious exercise:

When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

LCCHR complains that in Planned Parenthood Ass’n of Utah v. Herbert Gorsuch “dissented from the majority’s decision to keep in place a preliminary injunction that stopped the state of Utah from blocking access to health care and education for thousands of Planned Parenthood’s patients.” But (as I explain more fully in point 3 here), the case involved discontinuing taxpayer funding of Planned Parenthood, not “blocking access to health care and education”; the district court had denied Planned Parenthood’s request for a preliminary injunction, only to be overturned by a Tenth Circuit panel; and the narrow legal objections that Gorsuch raised were over the panel’s departure from circuit practice on the standard of review and burden of proof.

“LGBT Rights”: LCCHR repeats its false claim that Gorsuch, in a 2005 National Review article, “expressed disdain for those seeking to use the courts to enforce their rights under the law.” (See my Part 1 post, section on “Discrimination Claims.”) It further falsely claims that Gorsuch “specifically criticized LGBT Americans who have relied on federal courts in their quest for equality.” No, Gorsuch cited “gay marriage” as an example of the “overweening addiction” of “American liberals” to “the courtroom as the place to debate social policy.”

LCCHR also charges that the “rationale [Gorsuch] employed in the Hobby Lobby case—a license to discriminate for private corporations—has also been used by several states to justify discrimination against LGBT Americans.” But Gorsuch didn’t “employ” a “rationale” in Hobby Lobby, nor did he confer “a license to discriminate.” He enforced the religious-liberty rights that Congress recognized in RFRA. It would seem that it’s LCCHR that is guilty of “express[ing] disdain for those seeking to use the courts to enforce their rights under law” as well as for those seeking to have their religious-liberty rights protected by state legislation.

LCCHR complains that in Druley v. Patton Gorsuch “voted to reject a claim by a transgender woman [prisoner] who alleged that her constitutional rights were violated when she was denied medically necessary hormone treatment and the right to wear feminine clothing.” But the unanimous opinion that Gorsuch joined straightforwardly relied on three circuit precedents (each of which had at least two Democratic appointees on the unanimous three-member panel) and on the district court’s determination that the hormone treatment was not medically necessary.

“Police Misconduct”: LCCHR complains of a single ruling by Judge Gorsuch, in Wilson v. City of Lafayette, but fails to note that Obama appointee Scott M. Matheson Jr. joined Gorsuch’s opinion in its entirety. LCCHR also gets the basic holding of the case wrong. Gorsuch did not conclude that the officer’s use of force “was reasonable because the young man was fleeing arrest.” Rather, applying the long-established test for qualified immunity, he concluded that a person who is actively resisting arrest had no “clearly established right” not to be tased

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.

 

Left-Wing Letter Against Gorsuch—Part 1

by Ed Whelan

The Leadership Conference on Civil and Human Rights and a collection of other left-wing self-styled “civil and human rights organizations” have sent the Senate their all-too-predictable letter opposing the confirmation of Supreme Court nominee Neil Gorsuch. Their letter is replete with boilerplate blather, but it woefully fails to support their claims.

The lefty groups (which I will refer to collectively as LCCHR) organize their claims about Judge Gorsuch’s record in ten sections. I will address each of these in turn. (I will pass over, at least for now, their last two sections, which complain about some things that happened at the Department of Justice while Gorsuch served in the Associate Attorney General’s office but which simply say that he “should be questioned” to see what role, if any, he had in such matters.)

“Discrimination Claims”: LCCHR claims that Gorsuch’s 2005 National Review article manifested a “hostility to the use of courts by discrimination victims to enforce their rights under the Constitution” (emphasis added). But Gorsuch showed no such hostility. On the contrary, he was simply endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal,” that American liberals excessively rely on the courts to impose their social agenda. Gorsuch made clear that he was not applying that critique to the “constitutional lawsuits [that] have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list.” And, by its own terms, his critique plainly also did not apply to lawsuits to enforce established rights under the Constitution.

LCCHR cites two of Gorsuch’s opinions, but its accounts of both are grossly inadequate and misleading. In Strickland v. UPS, Gorsuch joined the parts of the panel opinion that held that the plaintiff was entitled to a new trial on her claim that she had been retaliated against for using her rights under the Family and Medical Leave Act. He dissented only from the panel’s ruling that she was also entitled to a new trial on her Title VII sex-discrimination claim, and he did so on the ground (not hinted at, much less disclosed, by LCCHR) that the record showed that the employer mistreated male employees “in very much the same manner” that he mistreated the plaintiff. In other words, the plaintiff offered no evidence that she was being discriminated against on the basis of sex.

The second opinion that LCCHR cites, Weeks v. Kansas, was a short unanimous opinion that involved a straightforward application of circuit precedent. The case did not involve sex discrimination but rather an employer’s alleged unlawful retaliation against an in-house lawyer for her advice concerning two other employees’ claims of unlawful discrimination. Under Tenth Circuit precedent, an in-house lawyer does not engage in “protected opposition to discrimination” when she merely provides legal advice to the employer. Gorsuch’s opinion affirmed the district-court ruling of Judge Carlos Murguia, a Clinton appointee.

“Workers’ Rights”: In Compass Environmental, Inc. v. Occupational Safety & Health Review Comm’n, Gorsuch dissented from a panel ruling upholding a fine imposed against a company for allegedly failing to adequately train a worker who was electrocuted. LCCHR claims that Gorsuch dissented “because he didn’t believe the employer was negligent” (as though he were making some sort of free-form assessment). But, as Gorsuch explains, he dissented on the very narrow ground that the Secretary of Labor failed to present any evidence to satisfy her burden, under Department regulations, of showing that industry norms would have required more training than the worker received. As he points out, the administrative-law judge in the matter “dismissed the citation against [the employer] for exactly this reason.”

LCCHR’s account of TransAm Trucking v. Administrative Review Board badly obscures the legal issue that was the basis for Gorsuch’s dissent. According to LCCHR, Gorsuch “said the [fired trucker] should have followed orders even at the risk of serious injury.” No. What Gorsuch said was that the trucker who “chose … to operate his vehicle in a manner he thought wise but his employer did not” (emphasis in original) could not claim the statutory whistleblower protection extended to those who refuse to operate a vehicle out of safety concerns. As he put it, the company’s decision to fire the trucker under the circumstances may not have been “a wise or kind one.” But “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”

LCCHR doesn’t even bother to try to explain, much less intelligently criticize, Gorsuch’s dissent in NLRB v. Community Health Services. Gorsuch was not objecting to the employees’ eligibility for back pay where their hours had been unlawfully reduced. He was objecting, rather, to the NLRB’s adoption of a “new rule” governing the calculation of that back pay.

“Immigration”: In its discussion of the Tenth Circuit’s en banc ruling in 2007 in Zamora v. Elite Logistics, Inc., LCCHR again does a remarkable job of obscuring what the case was about. When Elite Logistics hired Ramon Zamora, he was a Mexican citizen and a lawful permanent resident of the United States. When Elite later discovered that he was using the same social security number that another employee was using, it gave him ten days to provide documents establishing that he had a right to work in the United States. When he failed to do so, Elite suspended him. When he later provided these documents, it reinstated him, but when he requested an apology, it fired him.

The Tenth Circuit divided evenly, seven to seven, on the question whether Elite was entitled to summary judgment on Zamora’s suspension claim; Gorsuch voted that it was. It ruled by a vote of nine to five, with Gorsuch in the majority, that Elite was entitled to summary judgment on Zamora’s firing claim.

The fact that Gorsuch was part of a seven-judge coalition on one question and a nine-judge coalition on the other defeats any claim that his positions in the case were somehow extreme. Moreover, LCCHR’s effort to draw broader lessons from this case about Gorsuch’s approach to immigration-law issues and “immigration enforcement strategies” mistakes the discrete legal issues that the case presented.

It’s also very odd that LCCHR doesn’t discuss, or even acknowledge, here Gorsuch’s notable rulings in favor of illegal aliens in Gutierrez-Brizuela v. Lynch and De Niz Robles v. Lynch. But I guess that those don’t fit the contrived narrative.

Common Cause’s Chicken Little

by Ed Whelan

In this US News & World Report piece, Karen Hobert Flynn, president of Common Cause, does her best Chicken Little imitation.

Flynn squawks that Supreme Court nominee Neil Gorsuch “stands to further entrench big-money politics as the law of the land and threaten our democracy.” But halfway through her piece, she acknowledges that his “record on money in politics is sparse.”

The only specific claim from Gorsuch’s judicial record that Flynn tries to muster is that his “troubling concurring opinion in Riddle v. Hickenlooper suggests he is open to a higher level of protection to a donor’s right to make political contributions than to every American’s right to vote.” But Gorsuch’s concurring opinion in Riddle v. Hickenlooper isn’t “troubling” at all and suggests no such thing.

The legal question in the case was whether the Constitution allowed Colorado to cap individual contributions to a write-in candidate for the state house of representatives at a level ($200) that was lower than the cap ($400) for contributions to the Republican and Democratic nominees who qualified for the general-election ballot. In a unanimous opinion for the panel, Judge Robert Bacharach, an Obama appointee, ruled that the disparity violated the Equal Protection Clause.

In addition to joining Bacharach’s opinion, Gorsuch penned a brief concurring opinion. Among other things, Gorsuch explained, in response to the minor-party contributors claim that strict scrutiny should apply to the Colorado law, that “we have no controlling guidance on the question [of the level of scrutiny] from the Supreme Court” and that “in what guidance we do have lie some conflicting cues.”

So far as I can tell, the three paragraphs in which Gorsuch presented these “conflicting cues” are the sole basis for Flynn’s characterization of Gorsuch’s opinion as “troubling.” But the fairminded reader will readily discover that Gorsuch was simply highlighting the confusion he saw in the Supreme Court’s then-existing guidance for the lower courts and was not saying anything about how he would approach the issue as a justice (much less saying anything about how the constitutional protection of a “donor’s right to make political contributions” compares to the constitutional protection of “every American’s right to vote”).

Gorsuch also observed in his concurrence that it was “clear” to him that, “with a little effort, Colorado could have achieved its stated policy objectives (and might still) without offending the national charter.” He explained that Colorado could follow the federal model of regulating campaign contributions.

So there is zero basis for Flynn to infer from Gorsuch’s opinion that he would vote “to declare campaign contribution limits unconstitutional.” 

Potential Judicial Picks from Texas

by Jonathan H. Adler

Among the judicial vacancies facing President Trump are two Texas seats on the U.S. Court of Appeals for the Fifth Circuit. According to the Texas Lawyer, a committee is about to begin work vetting potential nominees for these vacancies. Among those likely under consideration are Texas Supreme Court Justice Don Willett, U.S. District Court Judge Reed O’Connor, former Texas solicitor general James Ho, Texas Governor Greg Abbott’s deputy general counsel Andy Oldham, and two state appellate court judges, Michael Massengale and Brett Busby. Fifth Circuit court watcher Jason Steed thinks Willett and Ho are the leading candidates, and that seems to me like a reasonable initial assessment. Willett, after all, was on President Trump’s list of potential Supreme Court justices, and Ho is an accomplished and well-connected appellate lawyer who worked for Senator John Cornyn (R-TX).

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.

The Ginsburg Standard and the Schumer Double Standard

by Carrie Severino

Senate Minority Leader Chuck Schumer, a master of the double standard, has already embarrassed himself by attempting to rewrite history about the filibuster and invent a fictitious “60-vote standard” for the current nominee.  Not satisfied with his two Pinocchios for that fib, he’s now holding Judge Neil Gorsuch to a standard completely at odds with that applied to nearly all sitting members of the Court. As Gorsuch meets with more Senate Democrats today expect to hear him being held to unreasonable standards yet again as Senators cast about for some excuse to oppose this highly-qualified nominee with fans on both sides of the aisle.

The Senate historically was deferential in confirming the President’s judicial picks; it was only in the 20th century that the nominees were even asked questions, and it wasn’t until the Bork era that they faced serious partisan scrutiny.  The modern standard for nominees in answering questions during their confirmation hearings is the so-called “Ginsburg Standard.”  During her 1993 confirmation hearing, Justice Ruth Bader Ginsburg invoked her ethical obligation not to answer questions about cases likely to come before her on the Court.  Justice Ginsburg testified, “A judge sworn to decide impartially can offer no forecasts, no hints; for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”  Over the course of her hearing, Justice Ginsburg refused to answer nearly 60 questions out of concern for maintaining her judicial independence and impartiality.  Her reticence notwithstanding, Justice Ginsburg was overwhelmingly confirmed by a vote of 96-3.

Every subsequent nominee has followed the Ginsburg Standard.  Just a year after Ginsburg’s own confirmation, Justice Stephen Breyer stated, “I do not want to predict or commit myself on an open issue that that I feel is going to come up in Court.”  Chief Justice Roberts noted that this “has been the approach that all of the Justices have taken.”  Justice Alito similarly cited precedent and judicial ethics not to address questions that might come before the Court.  Justice Elena Kagan – despite having advocated for more candor from nominees when she was on the other side of the witness table – testified to the Senate Judiciary Committee that her “that it would be inappropriate for a nominee to talk about how she will rule on pending cases or on cases beyond that that might come before the Court in the future.”  Likewise in her hearing, Justice Sonia Sotomayor stated, “I can’t engage in a question that involves hypotheses.”

So it took veteran Court watchers by surprise when Senator Schumer faulted Gorsuch for not being willing to answer questions about hot legal topics including the constitutionality of a ban on Muslims, the Emoluments Clause of the Constitution, and about whether he had “grave concerns” about President Trump’s use of executive power.  After all, it doesn’t take a Constitutional law scholar to recognize that any of these issues could easily come before the Supreme Court in the future. 

Ginsburg Standard, meet the Schumer Double Standard.  Prior to Chief Justice John Robert’s confirmation hearing, Senator Schumer cited Roberts’ short time on the bench as one reason he should be more explicit about how he would rule in different cases.  However, when Justice Elena Kagan – who had never sat on any court – was before the Senate, he claimed that her judiciary questionnaire was so detailed they didn’t need to wonder what her judicial approach would be.  And while he mentioned cases to her that he personally disagreed with, he clarified that he didn’t expect her to comment on specific cases.  He didn’t ask Justice Sotomayor a single question about a case that might come before the Court.

It’s clear that, for Schumer, the overarching principle isn’t one of, well, principle.  It’s about the party of the nominee.  Last week on the Senate floor Senator Schumer said, “This new nominee to the Supreme Court has to pass a special test, in my opinion, of true independence from the President.”  That’s about as close as he will likely get to admitting his real objective: to hold Republican nominees to a stricter standard that he used for nominees of his own party.

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” 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.)

Turow’s Reversible Errors—Part 2

by Ed Whelan

Continuing with my critique of Scott Turow’s Vanity Fair attack on Supreme Court nominee Neil Gorsuch (and numbering my points serially from my Part 1 post):

5. Turow scripts a set of questions for Senate Democrats to ask at Gorsuch’s hearing that will—get this!—“force[] [Gorsuch] to concede [Merrick] Garland’s qualifications” for a Supreme Court seat. E.g.:

In your view are you a better judge than Merrick Garland?

Do you have the same length of service as Judge Garland on the appellate court? (No)

Have you, like Judge Garland, served as the chief judge of the Circuit on which you sit? (No)

He even “expect[s]” that Republicans would “try to rule these questions about Garland somehow out of order” and that there might be a dramatic confrontation over them that should cause Senate Democrats to “get up and leave and boycott the confirmation process thereafter.”

All that Turow is showing is that he understands next to nothing about the confirmation process.

Earth to Turow: The very sound Republican strategy on the Scalia vacancy was established on the very day of Scalia’s death (exactly one year ago today, as it happens). It had nothing to do with Garland (even though it probably helped win him the nomination), and Republicans never disparaged Garland’s qualifications. As someone who has repeatedly stated my own admiration for Judge Garland, I am confident that it would not take any tricky cross-examination to get Gorsuch to avow the same. Nor would Republicans have the least concern about your oh-so-clever questions.

6. Turow also imagines that Gorsuch has “boxed himself in” to being questioned about his personal beliefs since “those beliefs, according to his own catechism, would not control how he would rule on the cases before him.”

So in Turow’s view, a Supreme Court nominee who says that his personal views will influence his judging can’t be asked about those personal views but a nominee who says that his personal views won’t influence his judging can be. On the basic measure of relevance, I can’t see how that distinction makes any sense.

In any event, Turow seems not to realize that all or nearly all Supreme Court nominees have put themselves in the same “box” that Turow imagines Gorsuch to be in. To take but one example, Elena Kagan stated at her hearing that “judging is about … how the law applies to [the] case, not how your own personal views, not how your own political views might suggest, you know, anything about the case.”

Moreover, insofar as the traditional practice of a nominee’s refusal to discuss personal views is justified, it rests heavily on the public interest in the appearance of judicial impartiality—an interest that would be disserved by a nominee’s expressing his personal views on contested issues, irrespective whether he says those view are or are not relevant to his judging.

7. Turow wants Democrats to use all possible weapons, including resorting to the filibuster (even if that means that Republicans will eliminate the filibuster). But, wait. I thought (see point 1 of my Part 1 post) that Turow insists that the Senate has a “constitutional mandate” to “allow a vote on whether or not to confirm” a Supreme Court nominee—​in other words, not to use the filibuster to prevent an up-or-down vote on the nomination.

Yes, Turow’s constitutional argument is insipid, but the fact that he would apply it (in the same essay, no less!) to the Garland nomination but not to the Gorsuch nomination shows what a hopeless hack he is.

8. Turow posits that Gorsuch might lead the Supreme Court not merely to overturn Roe v. Wade (and restore abortion policy to the democratic processes) but to go much further to establish “a constitutional right to life” that would amount to a “national ban on abortion.”

You see, Gorsuch wrote a dissertation and book that expressed his moral opposition to assisted suicide and “went on to suggest the possibility of a constitutionally enforceable right to life” against assisted-suicide laws. Plus, “assisted suicide is an obvious proxy for reproductive choice.” So we could be just around the corner from having a Supreme Court majority embrace a proposition that no justice has ever endorsed—and that Justice Scalia specifically rejected.

Turow’s Reversible Errors—Part 1

by Ed Whelan

In a piece for Vanity Fair titled “How the Democrats Can Stop Neil Gorsuch: And why they absolutely must,” lawyer-turned-novelist Scott Turow amply demonstrates that he’s more suited to fiction-writing than to legal analysis.

The author of Reversible Errors, Turow commits quite a few of his own:

1. Turow asserts that Supreme Court nominee Neil Gorsuch “is filling a seat that by any objective reading of the Constitution belongs to Merrick Garland.” He claims that Republicans, in declining to take any action on President Obama’s nomination of Garland, “read … out of the Constitution” the Appointments Clause set forth in Article II, section 2. In particular, he asserts that they “refused to fulfill [their] constitutional mandate” when they “refused to allow a vote on whether or not to confirm him.”

Far from being dictated “by any objective reading of the Constitution,” Turow’s gross misreading of the Appointments Clause is so “silly” and “obviously fatuous” that no reasonably well-informed person could intelligently advance it in good faith. As I have explained repeatedly, the Appointments Clause restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything.

The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. Senate practice has routinely defeated nominations by inaction. So Turow’s claim that Republicans had a “constitutional mandate” to “allow a vote on whether or not to confirm” Garland has zero basis in the Constitution’s text and contradicts the Senate’s longstanding practice on nominations subject to the Appointments Clause.

But if you’re disinclined to think through this yourself and don’t want to take my word for it, how about (among countless others) liberal law professor, and Supreme Court confirmation expert, Michael Gerhardt or President Obama’s former White House counsel Kathryn Ruemmler?

2. In support of his assertion that Gorsuch is “extremely conservative,” Turow cites two studies. One, in the best tradition of modern junk social science, ranked the candidates on President Trump’s Supreme Court list by this “tried-and-true [insert hilarious laughter] approach”:

• If a judge is appointed from a state where the president and at least one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator.

• If both senators are from the president’s party, the judge is assigned the average ideology of the two senators.

• If neither home-state senator is from the president’s party, the judge receives the ideological score of the appointing president.

So, you see, don’t bother actually trying to take a serious look at Judge Gorsuch’s judicial record over ten years. You can just assign him the “ideology” of Wayne Allard, who was the Republican senator from Colorado when George W. Bush appointed Gorsuch.

The second “study” that Turow finds so probative looks only to the “political donations made by federal judges before taking their seats.” Such donations may surely offer some insight (even if imperfect) into a judge’s preferences for political candidates, but it’s difficult to see why anyone would look to them to measure a judge’s judicial record.

3. Turow complains of the “rank partisanship” of the National Review essay that Gorsuch wrote in 2005 lamenting the Left’s “overweening addiction to the courtroom as the place to debate social policy.” Never mind that Gorsuch was expressly endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal.” What Turow finds “infuriating” is that Gorsuch failed to “recognize that conservatives have been equally, if not more guilty[,] of the same thing”—and Turow cites the “conservative effort to eradicate gun control, to allow for unlimited campaign spending, [and] to overturn Obamacare” as examples.

I’ll pass over for now the merits of Turow’s examples and limit myself to the observation that I don’t see how he can fault Gorsuch for writing an essay in 2005 that fails to address or distinguish conservative litigation efforts that occurred (or at least became prominent) only years later.

4. Turow imagines that Gorsuch’s “supposed sympathy to [sic] legislative judgments” is belied by his Tenth Circuit vote in the Hobby Lobby case. But Turow gets Hobby Lobby wrong.

Turow says that Gorsuch “struck down on grounds of freedom of religion those provisions of the Affordable Care Act that obligated employers to pay for their employees’ contraceptive care.” The trusting reader would think that Gorsuch ruled that a provision in Obamacare violated the First Amendment’s Free Exercise guarantee. But the HHS contraceptive mandate was an Obama administration regulation, not a statutory provision. And Gorsuch and his Tenth Circuit colleagues ruled (as the Supreme Court majority did) on the basis of the federal Religious Freedom Restoration Act, not the First Amendment. Further, they did not strike down the regulation; they held merely that RFRA meant that it could not be applied to Hobby Lobby.

In short, contrary to Turow’s confusion, Hobby Lobby illustrates Gorsuch’s respect for “legislative judgments.”

More in Part 2.

Anniversary of Justice Scalia’s Death

by Ed Whelan

Today marks the first anniversary of Justice Scalia’s death. I encourage you, if you are so disposed, to use the occasion to pray for the repose of his soul and for the continuing consolation of Mrs. Scalia and the Scalia family.

On National Review Online’s home page, former Scalia clerk Ryan J. Walsh has an excellent essay in which he presents “five life lessons” that he learned from this “profoundly good man.”

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.

This Day in Liberal Judicial Activism—February 12

by Ed Whelan

2015—Never 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 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.)

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

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