Texas Churches Challenge FEMA’s Denial of Disaster-Relief Funds to Houses of Worship

by Hannah C. Smith & Diana Verm

In the wake of Hurricane Harvey, massive amounts of federal aid are being sent to Texas, helping victims of that natural disaster rebuild. FEMA permits funds to go to museums, zoos, and even community centers that host sewing classes and stamp-collecting clubs.

But houses of worship are left out in the cold. That’s because of a FEMA policy that categorically excludes houses of worship from equal access to disaster-relief grants. Unfair? Yes. And unconstitutional, too. In a lawsuit filed earlier this week, three small churches in Texas are challenging FEMA’s policy, arguing that it violates the free-exercise clause of the First Amendment under the Supreme Court’s recent decision in Trinity Lutheran Church v. Comer.

What does Trinity Lutheran say about FEMA’s denial of disaster-relief grants to churches? A lot. In a 7-2 decision, the Supreme Court held that excluding churches from a generally available public benefit constitutes religious discrimination and “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Missouri had created a grant program to help non-profit organizations resurface their playgrounds. Many non-profits were eligible, but churches were excluded because Missouri interpreted its constitution to block funding to churches. The state’s exclusion of churches from the program violated the free-exercise clause because it “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.”

The Court’s decision in Trinity Lutheran will help religious organizations in several ways. First, the Court held that the federal free-exercise clause requires that churches be included in generally available government funding programs. Going forward, Trinity Lutheran provides a solid foundation for government funding programs to include churches in a variety of contexts, from security grants to asbestos-remediation grants to historic-preservations grants and to disaster-relief grants, such as FEMA’s.

Second, Trinity Lutheran provides clear guidance on something the Court has referred to as “play in the joints” — the idea that there are some state actions allowed by the establishment clause but not compelled by the free-exercise clause. The Supreme Court concluded that the so-called “play in the joints” stops here: “Missouri’s policy preference for skating as far as possible from religious establishment concerns” cannot justify a “clear infringement on free exercise.

Third, the Supreme Court articulated that anti-establishment interests beyond the establishment clause itself are not compelling governmental interests. To be sure, the Court recognized that Locke v. Davey had affirmed Washington’s “antiestablishment interest in not using taxpayer funds to pay for the training of clergy.” But the Court held that Missouri’s interest did not constitute an interest of the highest order necessary to override the blatant free-exercise violation at issue there. Going forward, Trinity Lutheran teaches that courts should treat as suspect the argument that establishing greater separation of church and state warrants religious discrimination.

Finally, Trinity Lutheran distinguishes and limits the holding in Locke v. Davey. In Locke, the Court upheld Washington’s denial of a government-funded scholarship to a religious student because he intended to use the scholarship to pursue a degree in devotional theology. In Trinity Lutheran, the Court made clear that Locke was an entirely different kind of case. Although the Court declined to overrule Locke, the Court also made clear that Locke does not condone discrimination against religious groups based on their religious status.

Despite these very important developments in the law, some commentators have suggested that Trinity Lutheran applies narrowly only to playground-resurfacing cases because of a short footnote that garnered only four votes. Footnote 3 says that this case “involves express discrimination based on religious identity with respect to playground resurfacing,” and does not address “religious uses of funding or other forms of discrimination.”

But footnote 3 must be read in context. Placed at the end of the discussion of Locke, footnote 3 then makes sense as a statement of the Court’s focus. Instead of revisiting Locke’s treatment of “religious uses of funding” — as Justices Thomas and Gorsuch were prepared to do — the Court left the question of Locke’s continued viability for another day. In Locke, the funding at issue would have been used for a religious degree. Read in context, then, footnote 3 clarified that the Court’s opinion in Trinity Lutheran did not reach such religious uses of government funding, and Trinity Lutheran declined to extend Locke’s reasoning to “express discrimination based on religious identity.”

Finally, footnote 3 was joined by only four members of the Court — Chief Justice Roberts, Justices Kennedy, Alito, and Kagan – and as such does not have the force of law. (Justices Thomas and Gorsuch joined all of the Court’s opinion except for footnote 3, and Justice Breyer concurred in the judgment but did not join the Court’s opinion including footnote 3.) The footnote may well have been added to secure the vote of a justice who did join the opinion in full. But since it is what the courts call obiter dictum — something said in passing — footnote 3 may end up being, well, just a footnote.

The Hurricane Harvey lawsuit — Harvest Family Church v. FEMA — will provide an opportunity to apply Trinity Lutheran to government disaster-relief grants. Especially when houses of worship play such a vital role in recovery efforts, the court should hold that FEMA must discontinue its policy of irrational discrimination against churches and start helping the helpers bring lasting recovery to Texas.

– Hannah Smith is Senior Counsel and Diana Verm is Counsel at the Becket Fund for Religious Liberty, a non-profit law firm that defends religious liberty for all.

“The Rebirth of American Constitutionalism”

by Matthew J. Franck

On Monday, September 25, my friends at the James Madison Program in American Ideals and Institutions at Princeton University will host an all-day conference devoted to the scholarly legacy of two giants in the study of the American founding who both died 40 years ago.  Martin Diamond and Herbert J. Storing, friends who were both students of Leo Strauss, were pioneers in the field of political philosophy, responsible (along with colleagues such as Harry Jaffa, Walter Berns, Ralph Lerner, and Harvey Mansfield) for resurrecting the serious study of American political thought in American political science departments.  (I did not study under any of the men just named, but my teachers were their colleagues and students.)

Diamond was the preeminent scholar of The Federalist of his generation, while Storing was almost singlehandedly responsible for bringing the thought of the Anti-Federalists to the center of our attention.  Their books and essays continue to repay careful study to this day.  Both men died far too young in 1977 (Diamond in July at age 57, Storing in September at just 49), but their students were many and their influence wide and deep.  The Princeton conference, “The Rebirth of American Constitutionalism: The Political Thought of Martin Diamond and Herbert Storing,” promises to be a very interesting exploration of their thought and legacy.

 

Congrats, Greg Katsas!

by Ed Whelan

I’m delighted to learn that President Trump has nominated Deputy White House Counsel Greg Katsas to a vacancy on the D.C. Circuit. Katsas is a truly outstanding pick, as Shannen Coffin and Carrie Severino attest.

Hilarious Attacks on Larsen and Barrett Nominations

by Ed Whelan

Michigan supreme court justice Joan Larsen and Notre Dame law professor Amy Coney Barrett have outstanding credentials and have received broad acclaim—including favorable blue slips from their home-state Democratic senators—for their nominations to the Sixth Circuit and Seventh Circuit, respectively. So it’s perhaps no surprise that some of the Left’s attacks on Larsen and Barrett are downright hilarious. (To be clear: I wouldn’t put Senator Dianne Feinstein’s display of ugly anti-Catholic bigotry against Barrett or Senator Dick Durbin’s improper inquiry into Barrett’s religious beliefs in the category of hilarious.)  

For example, People For the American Way complains of Larsen:

Also of concern is the signal Larsen sent about her conservative ideology during her campaign for the Michigan Supreme Court last year. Her website stated that “judges should interpret the laws according to what they say, not according to what the judges wish they would say. Judges are supposed to interpret the laws; they are not supposed to make them.” This is coded language used by ultra-conservative jurists and activists to signal a willingness to issue rulings that (among other things) do not recognize the constitutional right to abortion or the fundamental humanity and equality of LGBTQ people. [Emphasis added.]

Yeah, sure. And Justice Sotomayor was using that same “coded language” when she testified at her confirmation hearing that “The task of a judge is not to make the law—it is to apply the law.” And so did Justice Kagan when she proclaimed that “we are all textualists now.” Ditto for statements by countless other Democratic judicial appointees over the years.

The Alliance for Justice claims that Barrett “believes and has stated that judges can and should put their personal beliefs ahead of the law and Constitution when carrying out their duties.” It cites its own report as authority for that claim. But when you finally get past AFJ’s repetition of that claim to its actual report, you learn that AFJ is complaining that “in a 1998 law review article, Barrett argued that federal judges who are faithful to Catholic teaching should recuse themselves from capital cases because they are morally precluded from considering or imposing the death penalty.” (Emphasis added.) (The law-review article is here; AFJ doesn’t bother to include a link.)

In short, far from arguing that “judges can and should put their personal beliefs ahead of the law and Constitution when carrying out their duties,” Barrett was arguing 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. Indeed, she emphatically declared that Catholic judges “cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”

As Barrett’s co-author John H. Garvey—former Notre Dame law professor and current president of Catholic University—writes in an op-ed today, “I never thought I’d see the day when a coalition of left-wing groups attacked a Republican judicial nominee for opposing the death penalty.” Even more amazing is that AFJ adopts the loopy position that a judge who complies with recusal obligations is placing himself “at odds with the very essence of the [judicial] oath.”

What buffoonery.

* Justice Scalia, for whom Barrett later clerked, disagreed with her reading of Catholic teaching on the death penalty.

Greg Katsas a Superb Choice for D.C. Circuit

by Carrie Severino

I want to add a personal comment regarding Greg Katsas, today’s nominee to replace Judge Janice Rogers Brown on the D.C. Circuit. It couldn’t have happened to a nicer guy, or one more well-suited for that high post.

I have known Greg for several years, having met him while I was clerking when Justice Thomas swore him in as Assistant Attorney General under President Bush. I recall thinking then what a quiet, unassuming person he was to have reached such a high post. Little did I know what a brilliant advocate and fierce defender of constitutional principles lay beneath his humble exterior. He has argued before every court in the country, including the Supreme Court where, among other cases, he ably argued one portion of the first major Obamacare challenge.

I expect he will enjoy broad bipartisan support from the many fellow lawyers who not only respect his high-powered legal chops but like him personally. Not that that will stop every single Democratic senator from voting against him (which at this point I view as the starting position for every Trump nominee, perhaps even more so for the most highly-qualified who the Left finds more threatening).

And his position in the current White House Counsel’s office only further guarantees that Democrats will play politics with this nomination. They will relish trying to tar him with every criticism they have of the president and then some. They will feign ignorance of attorney-client privilege when he is unable to go into details about his administration experience. But at the end of the day, his personal poise, brilliance, and unwavering commitment to the Constitution will serve him well. I am grateful he is willing to brave that gauntlet and look forward to seeing him sworn in once more.

More Excellent Judicial Nominees Announced Today

by Carrie Severino

Now that the Senate is back from recess, The White House is able to deliver another outstanding collection of nominees for their consideration. I will follow this post with bios of the appellate nominees, who continue to fulfill—in spades—the campaign promise of the President to appoint judges faithful to the Constitution and the rule of law.

The three appellate and thirteen district court nominees will bring the total number of nominees in process to 48. But while the administration is working at full speed to select judges, Senate confirmation is still far outpaced by judicial retirements thanks to the Democrats’ abuse of Senate procedures to create gridlock. President Trump took office with 105 vacancies, and the number has ballooned by more than 1/3 to 144 and counting. I hope today’s nominees enjoy the efficient confirmation that individuals of their exceptional qualifications, character, and principle deserve.

D.C. Circuit:  Greg Katsas

Ninth Circuit:  Ryan Bounds

Eleventh Circuit:  Elizabeth L. “Lisa” Branch

 

Who is Greg Katsas?

by Carrie Severino

Greg Katsas is President Trump’s nominee to the U.S. Court of Appeals for the D.C. Circuit.

Age: 53 (approximate)

Current Position: Deputy Assistant to the President and Deputy Counsel to the President (Washington, D.C.)

Education:

  • B.A., Princeton University (1986), cum laude
  • J.D., Harvard Law School (1989), cum laude; Executive Editor, Harvard Law Review

Judicial Clerkships: Judge Edward Becker, U.S. Court Appeals for the Third Circuit (1989-1990); Associate Justice Clarence Thomas, Supreme Court of the United States (1990-1991)

Experience:

  • 1992-2001; 2009-2016: Associate and Partner, Jones Day LLP (Washington, D.C.)
  • 2001-2006: Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice (Washington, D.C.)
  • 2006-2008: Principal Deputy Associate Attorney General, Civil Division, U.S. Department of Justice (Washington, D.C.)
  • 2007-2008: Acting Associate Attorney General, U.S. Department of Justice (Washington, D.C.)
  • 2008-2009: Assistant Attorney General, Civil Division, U.S. Department of Justice (Washington, D.C.)
  • January 2016-present: Deputy Assistant to the President and Deputy Counsel to the President (Washington, D.C.)

Notable Matters:

  • Mr. Katsas currently serves as Deputy Counsel to President Trump, a role in which he provides legal advice to senior staff at the White House and manages legal issues involving executive branch agencies.
  • Mr. Katsas has more than 20 years of experience as an appellate litigator. In his roles in private practice and at the DOJ, he has argued more than 40 appeals and in every federal appellate court, including the U.S. Supreme Court. As the Deputy Assistant Attorney General in charge of the Appellate Staff of the Civil Division at the Department of Justice, Mr. Katsas argued, briefed, or supervised many of the most significant appeals handled by the government in the federal courts.
  • By appointment from the Chief Justice of the United States, Mr. Katsas served on the Advisory Committee for Appellate Rules from 2013-2017. He is listed as an expert for The Federalist Society, for whom he frequently speaks about appellate litigation matters.

Awards: Mr. Katsas is the recipient of the Attorney General’s Distinguished Service Award (2006), the Department of Defense Medal for Exceptional Public Service (2009), and the Edmund Randolph Award for Exceptional Public Service (The DOJ’s most distinguished award) (2009). Mr. Katsas is also a member of the American Academy of Appellate Lawyers.

Who is Ryan Bounds?

by Carrie Severino

Ryan Bounds is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from Oregon. 

Age: 44 (approximate)

Current Position: Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Oregon (Portland, OR)

Education:

  • B.A., Stanford University (1995), with honors and distinction; Phi Beta Kappa; Editor, The Stanford Review; Founding Editor, The Thinker
  • J.D., Yale Law School (1999); Editor-in-Chief, Yale Law and Policy Review; Editor-in Chief, Harvard Journal of Law and Public Policy (1998 Federalist Society Symposium Issue); Editor, Yale Law Journal; Vice-President, Yale Federalist Society

Judicial Clerkships: Judge Diarmuid F. O’Scannlain, U.S. Court of Appeals for the Ninth Circuit (1999-2000)

Experience:

  • 2000-2004: Litigation Associate, Stoel Rives LLP (Portland, Oregon)
  • 2004-2007: Deputy Assistant Attorney General and Chief of Staff, Office of Legal Policy, U.S. Department of Justice (Washington, D.C.)
  • 2008-2009: Special Assistant to the President for Domestic Policy, The White House (Washington, D.C.)
  • 2007-2008; 2009: Special Assistant United States Attorney, U.S. Attorney’s Office for the District of Columbia
  • 2010-present: Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Oregon (Portland, OR)

Notable Matters:

  • As an Assistant U.S. Attorney in Portland, Mr. Bounds prosecutes criminal cases involving fraud and environmental offenses.
  • Mr. Bounds has extensive appellate experience, having served in the Appellate Unit as a Special Assistant at the D.C. U.S. Attorney’s office, briefing and arguing criminal appeals before the D.C. Circuit and the D.C. Court of Appeals. He also briefed and argued cases in the Courts of Appeals for the Fourth, Eighth, and Ninth Circuits while serving as Deputy Assistant Attorney General for the Office of Legal Policy at the DOJ.
  • In his capacity as Deputy Assistant Attorney General and Chief of Staff at the DOJ, Mr. Bounds coordinated departmental policies in a wide range of areas, including immigration, intellectual property, crime-victims’ rights, and budget priorities. He also assisted in advising the White House on the nominations of Chief Justice Roberts and Justice Alito to the Supreme Court.

Professional Associations: Mr. Bounds serves as an Appellate-Lawyer Representative to the U.S. Court of Appeals for the Ninth Circuit. He is also President of the Pioneer Courthouse Historical Society and President of the Portland Lawyers’ Chapter of the Federalist Society.

Biographical Notes: Mr. Bounds is an Eastern Oregon native and a graduate of Hermiston High School. He is married and has a seven year-old daughter.

Who is Judge Lisa Branch?

by

Judge Lisa Branch is President Trump’s nominee to the U.S. Court of Appeals for the Eleventh Circuit from Georgia. 

Age: 49 (approximate)

Current Position: Judge, Court of Appeals of Georgia (Atlanta, GA)

Education:

  • B.A., Davidson College (1990), cum laude
  • J.D., Emory University (1994), with distinction; Order of the Coif; Notes and Comments Editor, Emory Law Journal

Judicial Clerkships: Judge J. Owen Forrester of the U.S. District Court for the Northern District of Georgia (1994-1996)

Experience:

  • 1996-2004: Attorney, Smith, Gambrell & Russell, LLP (Atlanta, GA)
  • 2004-2005: Associate General Counsel for Rules and Legislation at the U. S. Department of Homeland Security (Washington, D.C.)
  • 2005-2008: Counselor to the Administrator of the Office of Information and Regulatory Affairs at the U. S. Office of Management and Budget (Washington, D.C.)
  • 2008-2012: Partner, Smith, Gambrell & Russell, LLP (Atlanta, GA)
  • 2012-present: Judge, Court of Appeals of Georgia (Atlanta, GA)

Notable Matters:

  • Georgia Governor Nathan Deal appointed Judge Branch to the Georgia Court of Appeals in 2012. In 2016, Judge Branch authored the majority opinion in a case that overturned the state’s invasion of privacy conviction of a grocery store employee who had recorded videos of up a woman’s skirt (a practice known as “upskirting”). Recognizing the textual limitations of the state’s invasion of privacy statute, which specifically applied to the use of any device to record or observe the activities of another “in any private place and out of public view,” the majority found that a grocery store is neither a private place nor out of view. Judge Branch wrote, “[I]t is regrettable that no law currently exists which criminalizes [the defendant’s] reprehensible conduct.”
  • By appointment of Governor Deal, Judge Branch has served on the George Commission on Child Support since 2013. She is also a member of the State Bar of Georgia’s Appellate Practice Section.
  • Judge Branch is a member of the Board of Advisors of the Atlanta Lawyers Chapter of the Federalist Society.

Awards: Georgia Super Lawyer (2012)

Biographical Notes: Judge Branch is a Georgia native. She was born in Atlanta, Georgia and was raised in Fulton County.

This Day in Liberal Judicial Activism—September 7

by Ed Whelan

2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.

Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball.” You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court,” but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly failed to “mention[]—or even hint[] at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

2016—State superior court judge Thomas Moukawsher appoints himself czar of Connecticut’s public schools.

As this Hartford Courant article reports, Moukawsher “ordered the state to come up with a new funding formula for public schools”; “directed the state to devise clear standards for both the elementary and high school levels, including developing a graduation test”; “ordered a complete overhaul of Connecticut’s system of evaluating teachers, principals and superintendents”; and “demanded a change in the ‘irrational’ way the state funds special education services.”

Further: “Moukawsher’s mandates come with a tight deadline: The remedies he is ordering must be submitted to the court within 180 days.”

As the reporter observes, “It is unclear how the state Department of Education, the legislature and Gov. Dannel P. Malloy will come up with solutions, within six months, to complicated problems that have plagued public education in Connecticut for decades.” Yes, indeed.

No, We Don’t Need to Slow the Pace of Judicial Hearings

by Carrie Severino

An op-ed by law professor Carl Tobias in the Des Moines Register criticizes Senate Judiciary Chairman Chuck Grassley for scheduling today’s hearing on five nominations, two each to fill circuit and district court vacancies and one for Assistant Attorney General of the Justice Department’s Civil Rights Division. Specifically, he charges that including so many nominees in one hearing “violate[s] regular order” and “jeopardize[s] his fair and efficient Judiciary Committee stewardship” and “his cordial relationship with Democrats.”

Tobias is correct only in the limited sense that Grassley has gone out of his way to be fair and cordial toward committee Democrats, but he omits any recognition of the magnitude of unfilled vacancies or the Democrats’ accompanying refusal to reciprocate the Chairman’s goodwill.

President Trump entered office with substantially more total judicial vacancies (105) than four of his five predecessors, including almost twice as many as President Obama (55), and only ten fewer vacancies than President Clinton. Tobias looks no earlier than the Obama years in attempting to identify a committee “tradition” capping the number of circuit court nominees per hearing—not that a cap existed even then, but the analogy is particularly inapt given so many fewer vacancies than courts face today. (Never mind that as Chairman of the Senate Judiciary Committee, Ted Kennedy once scheduled seven circuit court nominees for one hearing.) In fact, since inauguration day, the current administration’s judicial vacancies have skyrocketed to 144, a higher number than all five of his predecessors at this point in their respective presidencies. Throw in the Democrat-induced confirmation lag for executive branch vacancies, and the vacancy rate is so bad that, as Senate Majority Leader Mitch McConnell recently remarked, “If this continues it will take us more than 11 years to confirm the remaining presidential appointment[s].”

Of course, it will remain difficult to staff the federal government as long as Senate Democrats engage in wholesale obstruction. After inventing the routine use of the filibuster as a weapon against appellate court nominees during the second Bush administration, Senate Democrats have compelled a vote for cloture on all five Trump judicial nominees who so far have had a floor vote, in addition to all of the nominees to the top three positions in the Justice Department. U.S. Court of Appeals nominees from states represented by Democratic senators have also been impeded by the refusal of those senators to return blue slips, a courtesy extended to home state senators before the Judiciary Committee holds a hearing for a nominee.

This unprecedentedly toxic combination of federal vacancies and obstruction to the nomination process is in stark contrast to Tobias’ idyllic description of Chairman Grassley’s “cordial relationship with Democrats,” at least in the sense that a relationship is a two-way street. Tobias also has little reason for his concern that scheduling the hearing “just when members and staff are returning to Washington could overwhelm scarce panel resources.” Even putting aside that Seventh Circuit nominee Amy Barrett’s hearing was originally scheduled for August 8 and rescheduled for today, the committee to date has held hearings for only 12 Trump judicial nominees. That number can be substantially increased without the Committee being nearly as taxed as the understaffed judiciary and executive branch already are.  

This Day in Liberal Judicial Activism—September 6

by Ed Whelan

2016—Over the public dissenting votes of ten of its judges, the Ninth Circuit issues an order declining to grant rehearing en banc of a divided panel decision in Oregon Restaurant & Lodging Ass’n v. Perez.

This case provides a powerful illustration of how liberal judges and bureaucrats will engage in tag-team tactics to override unwelcome precedent and to invent legal obligations that assist favored constituencies. In brief: The unwelcome precedent here was a 2010 Ninth Circuit ruling that held that, by its plain language, a statutory restriction on a restaurant employer’s ability to require waiters to pool tips with non-tipped employees applied only to restaurants that did not pay waiters the minimum wage. Despite this holding, the Department of Labor in 2011 issued a regulation purporting to bar employers from requiring tip pools to include non-tipped employees, even if the employer was paying the tipped employees minimum wage. And in the divided panel decision in Oregon Restaurant, notorious liberal activist Harry Pregerson ruled that the Labor Department regulation was entitled to deference under the Chevron doctrine, even though the circuit precedent from 2010 held that the plain language of the statute meant otherwise.

Time to Restore the Kennedy-Biden-Hatch Blue-Slip Policy

by Ed Whelan

It’s difficult to see how President Trump could have found a more highly qualified candidate for the Eighth Circuit vacancy in Minnesota than David Stras. A Minnesota supreme court justice since 2010, Stras has earned the respect of his colleagues across ideological lines: among the (at least) eight former justices who support his nomination is Alan Page, the longtime liberal justice—and, before that, Hall of Fame defensive tackle for the Vikings—who served with Stras for five years. Page hails Stras as having “all the attributes and qualifications necessary to make an excellent circuit court judge.” It’s no surprise at all that Stras received the ABA’s highest possible rating: a unanimous “well qualified.”

What ought to be a surprise, given the broad acclaim that Stras has received from those who have worked with him and appeared before him, is that Senator Al Franken (D-Minn.) announced today that he would not only oppose Stras’s nomination but would also decline to return the “blue slip” signaling his go-ahead to the Senate Judiciary Committee to hold a hearing on the nomination. Franken expresses concerns that Stras “would be a deeply conservative jurist in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia.” (If Franken is right, it’s unclear why he would prefer that Stras remain on Minnesota’s highest court, which has the final word on what state law means, rather than move to the Eighth Circuit, where he’d be dealing with federal cases arising in various states and be subject to reversal by the Supreme Court.)

In her own statement, Senator Amy Klobuchar, Franken’s senior home-state colleague and also a Democrat, says that “it is [her] view that [Stras] deserves a hearing before the Senate.” But she effectively defers to Franken’s refusal to return a favorable blue slip, and she says that “the White House will need to provide additional names for the 8th Circuit position.”

If Franken is going to use the negative blue slip to prevent a nominee like Stras from even getting a hearing, I respectfully suggest that it’s time for Senate Judiciary Committee chairman Chuck Grassley to take the step I outlined four months ago: to restore—at least with respect to appellate nominations—what Senator (and former committee chairman) Orrin Hatch called the “Kennedy-Biden-Hatch blue-slip policy.” Under that policy, the chairman would give the return of a negative blue slip on a nomination “substantial weight,” but could still decide to allow a committee hearing and vote on the nomination.

‘A gold mine of brilliance, common sense, humility, and virtue’

by Ed Whelan

That’s the assessment of Scalia Speaks: Reflections on Law, Faith, and Life Well Lived that a distinguished academic recently passed along to me, after reading the galley version.

On October 3—exactly four weeks from today—Scalia Speaks will be published by Crown Forum, an imprint of Penguin Random House. It’s been a great pleasure for me to serve as co-editor (along with Christopher Scalia) of this book of Justice Scalia’s speeches.

Scalia Speaks is designed for a general audience and is replete with Justice Scalia’s characteristic wisdom, clarity, and humor. There are a lot of great speeches on legal topics, all readily accessible to the non-lawyer. As the subtitle suggests, we’ve included many speeches on other topics: for example, faith, character, tradition, ethnicity, education, turkey hunting, and even the games and sports that a young Nino Scalia played on the streets of Queens in the 1940s. The book also features several of the Justice’s moving, and often funny, tributes to friends.

Only a small handful of the dozens of speeches in the book have ever been published anywhere before.

My hopeful expectation is that a very broad swath of readers will find the book a delight—a joy to read and a great gift for family, friends, and colleagues. Here’s a take from one non-lawyer who reviewed the early manuscript:

Skimming through the speeches is like being bathed in a world of goodness, truth, and beauty. The humor, generosity, friendship, and love that shines from them is a balm in what is too often an ugly world.

Justice Ruth Bader Ginsburg—dear friend to Justice and Mrs. Scalia and subject of one of the Justice’s tributes—has generously volunteered a wonderful foreword, and Chris Scalia has written a poignant introduction.

Pre-order the book now. You’ll be very glad you did.

Or, better yet, get huge discounts—in the range of 40% or higher—by buying bulk orders (25+) of Scalia Speaks. Contact Owen Haney at [email protected] for more information.

This Day in Liberal Judicial Activism—September 5

by Ed Whelan

1969—By a vote of 4 to 3, the California supreme court rules in People v. Belous that the exception to California’s abortion ban for abortions “necessary to preserve [the] life” of the mother is “not susceptible of a construction … that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” On that flimsy basis (which the dissenters deride as a “negation of experience and common sense”), the majority invalidates the state’s abortion law. The decisive fourth vote is provided by a justice pro tem whose appointment to the case was engineered by California chief justice Roger Traynor.

2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated. An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.

This Day in Liberal Judicial Activism—September 4

by Ed Whelan

1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.

Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality.

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

2014—Graham Henry’s saga of proceedings challenging his conviction for a murder in 1986 had finally seemed to come to an end when the Supreme Court denied his certiorari petition in June 2014. But in an extraordinary procedural contortion, the en banc Ninth Circuit instead votes to rehear en banc Henry’s motion to reconsider a Ninth Circuit panel’s November 2013 order denying his petition for panel rehearing.

In dissent, Judge Richard Tallman, joined by four other judges, issues an opinion with this memorable opening:

“If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now—after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed—we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.”

In December, the Supreme Court will take the remarkable action of requesting that the Ninth Circuit—yes, the court itself—respond to the state of Arizona’s petition for a writ of mandate that would compel the Ninth Circuit to terminate further proceedings in the case. In a transparent effort to avoid having to explain its misconduct, the Ninth Circuit, on December 30, will terminate its proceedings.

2015—By a vote of 6 to 3, the Washington supreme court rules in League of Women Voters v. Washington that the state law authorizing charter schools violates the state constitution. The ruling came just as nine charter schools, serving some 1,200 students, had started the school year, thus (as one article reports) “creating chaos for hundreds of families.”  

This Day in Liberal Judicial Activism—September 2

by Ed Whelan

2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively. In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) will reverse the Ninth Circuit in June 2004. Not a single justice will express agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion will take four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court will rule that Ring did not announce a watershed rule of criminal procedure.

2008—Federal district judge Beverly B. Martin rules that the federal statutory minimum sentence of 30 years for the crime of crossing a state line with intent to engage in a sexual act with a person under 12 years of age violated Kelly Brenton Farley’s Eighth Amendment right against cruel and unusual punishments “under the specific facts of his case.” (Emphasis in original.)

In June 2010, a unanimous Eleventh Circuit panel, after presenting the “specific facts” of Farley’s case in excruciating detail, will reverse Martin’s ruling. The panel explains that the Supreme Court’s 1992 ruling in Harmelin v. Michigan, which rejected an Eighth Amendment challenge to a mandatory life sentence of life imprisonment for the crime of possessing 672 grams of cocaine, forecloses Martin’s conclusion.

But in the meantime President Obama will appoint Martin to a seat on the Eleventh Circuit.

Judge Posner to Retire

by Ed Whelan

Effective tomorrow. (Not taking senior status; full retirement.)

Better late than never.

This Day in Liberal Judicial Activism—September 1

by Ed Whelan

2016—As Sherlock Holmes once observed, “it is better to learn wisdom late than never to learn it at all.” But the late learner might have the decency to acknowledge his earlier folly.

In a New York Times piece on Bill Clinton and Kenneth Starr, Linda Greenhouse offers effusive—and appropriate—praise for Justice Scalia’s solo dissent in Morrison v. Olson, the 1988 case in which the Court rejected a separation-of-powers challenge to the independent-counsel statute:

“It was a dissenting opinion of which he was deservedly proud, even perhaps his best work. His words were prescient, his analysis airtight.” [Emphasis added.]

Although her readers wouldn’t know it, Greenhouse had a very different reaction to Scalia’s dissent back in 1988, when she complained of its supposedly “fevered tone” and quoted only a four-word “sarcastic reference” in it. Indeed, she regretted back then that the independent-counsel statute did not intrude more on presidential power. Only the use of the independent-counsel statute against President Clinton and others in his administration awakened Greenhouse to the separation-of-powers problems that were manifest to Scalia. (More here.)

Judicial Nominations Roundup

by Carrie Severino

Here is the latest update on the growing number of federal judicial vacancies and the status of the President’s nominees. Once Congress returns from its August Recess on September 5th, we can expect more nominations to be announced in the weeks to come.

Number of total current and known future vacancies: 161

Courts of Appeals: 25

District/Specialty Court*: 136

Number of pending nominees for current and known future vacancies: 32

Courts of Appeals: 8

District/Specialty Courts: 24

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

Nominees Awaiting Floor Votes (Reported by Senate Judiciary Committee)

Courts of Appeals: 0

District/Specialty Courts: 4

Nominees Confirmed by the Senate

Courts of Appeals: 3

District/Specialty Courts: 1