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

This Day in Liberal Judicial Activism—August 30

by Ed Whelan

1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.” Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.”

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees. Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

“[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…  Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.”

Ah, the unintended consequences of liberal judicial activism: According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.” Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980.

2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court. Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association.

Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation. In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary. Out of 57 employees, zero blacks.

Masterpiece Cakeshop: Can the State Force Us to Agree with Its Views?

by Jonathan Scruggs

“There’s nothing new beneath the sun,” King Solomon famously said — and very little new before the U.S. Supreme Court. Though every generation likes to believe it’s grappling with unprecedented legal challenges, the precedents are usually there, with history holding up its mirror to help us reflect on how those gone before came to grips with surprisingly similar threats to our national — and personal — convictions.

During the coming term, for instance, the High Court will hear the case of a Colorado cake artist, Jack Phillips, who has declined to use his artistic talents to design a wedding cake celebrating a same-sex wedding ceremony. It’s a faith-based position that puts him distinctly at odds with the full-court press of current social trends (at least those preferred by the media and Hollywood).

Phillips is by no means alone and by no means the first to find himself at cross-purposes with popular culture and the prevailing judicial winds. Indeed, those seeking a preview of this fall’s coming legal attractions need look no further back than 1943 and the enduring questions raised in West Virginia Board of Education v. Barnette.

As Jehovah’s Witnesses, the Barnett family discouraged their children from saluting the American flag at school. For them, the flag represented a “graven image” of the kind God pointedly disavowed in Exodus 20:4-5. They could not participate in what they viewed as a religious ceremony, nor promote a religious message with which they disagreed.

It was not — to say the least — a popular position to take on the homefront at the height of World War II. Jehovah’s Witnesses, even then, were not looked on with great esteem by those of more traditional faiths. Society at large viewed them as betrayers of the American way of life. Who would not want to salute the flag? Who would not concede America’s greatness during a fight between good and evil when so much was on the line?

Nor were the legal precedents running in the Barnetts’ direction. Just a few years earlier, in Minersville School District v. Gobitis, the Supreme Court had ruled that schools were perfectly within their rights to expel children who wouldn’t pledge to the flag. Youngsters who persisted in such disloyalty could be branded as juvenile delinquents and sent to reformatories. Their parents could actually be arrested for inciting such delinquency. The state could not afford to let such beliefs go unchecked. After Gobitis, violence against Jehovah’s Witnesses reportedly ensued in several places around the country.

In spite of the severe penalties imposed by the government, the Barnetts would not compromise their beliefs. They raised the question again with the Court, the Court reheard the case, and this time Justice Robert H. Jackson led a 6-3 majority to refute the Gobitis decision and restore to the Jehovah’s Witnesses the benefits of free speech. Jackson’s arguments have more than a passing bearing on the issues at the root of the cake artist’s case.

It would be great, Jackson suggested, if the government could ensure that a given symbol meant the same thing to everybody. Unfortunately, that’s not possible, and government efforts to make people agree on the proper meaning of a given symbol or idea (be it a flag, a wedding cake, or anything else) have always been unsuccessful. As Jackson wrote, “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country” are not new to man but are foreign to our system of government.

Standardization of ideas about any subject — marriage included — “either by legislature, courts, or dominant political or community groups” is fundamentally undemocratic, as a later Supreme Court decision in Terminiello v. City of Chicago explained. The right to speak freely and differ on issues that matter, without fear of government punishment, is what “sets us apart from totalitarian regimes.”

While the Gobitis decision suggested that the right-or-wrong of the Jehovah’s Witnesses’ case should be decided by the state legislature – and, ultimately, by vote — Jackson contended that some issues are simply too important to be decided by popular opinion:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

What’s more, Jackson said, neither the strength nor the rightness of an idea (e.g., the greatness of America, same-sex marriage) is enhanced by the government’s ability to force someone to accept it. A social or political movement that can’t withstand some conscientious objections is built on weak ideas, indeed.

A society can’t have “rich cultural diversities,” Jackson said, without “exceptional minds,” and exceptional minds, by definition, will sometimes take exception to the popular view. “But freedom to differ is not limited to things that do not matter much,” Jackson said. “That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

His conclusion:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Just how fixed that star remains will be decided in the next Supreme Court term in the case of Jack Phillips . . . a cake artist who asks nothing more than that his government not compel him to celebrate an idea he does not believe in. In the end, that’s a right we all want to preserve.

EPPC Amicus Brief in Ten Commandments Monument Case

by Ed Whelan

The city of Bloomfield, New Mexico, has filed a certiorari petition seeking review of a Tenth Circuit ruling that held that the city violated the Establishment Clause by allowing private parties to place a Ten Commandments monument on the city hall lawn, alongside three similar monuments displaying the Declaration of Independence, the Gettysburg Address, and the Bill of Rights.

I’m pleased to pass along that the Ethics and Public Policy Center (the think tank I direct) has filed an amicus brief in support of the city’s petition.

EPPC’s amicus brief argues that the so-called “endorsement test” applied by the Tenth Circuit is, as Justice Kennedy predicted in similar language nearly thirty years ago, “a recipe for confusion, misapplication, and trivialization of core constitutional principles”; that this case is a “perfect opportunity to finally do away with that failed test”; and that Justice Kennedy’s majority opinion just three years ago in Town of Greece v. Galloway provides a historical test that ought to replace the endorsement test in the context of passive religious displays.

My thanks to Benjamin W. Snyder and Bridget R. Reineking of Latham & Watkins for their excellent and generous pro bono work on the brief.

The Florist and the Cake Artist

by Ed Whelan

The Supreme Court has granted review of the certiorari petition in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. That petition presents the question whether Colorado’s public-accommodations law violated the Free Speech or Free Exercise Clauses of the First Amendment when it was used to compel cake artist Jack Phillips to create a custom cake honoring a same-sex marriage in violation of his sincerely held religious beliefs about marriage.

Also pending before the Court is the certiorari petition in Arlene’s Flowers, Inc. v. Washington, which presents the question whether the compelled creation and sale of custom floral arrangements to celebrate a wedding, along with compelled attendance at the wedding ceremony, violates the Free Speech or Free Exercise Clauses.

In its amicus brief in support of the Arlene’s Flowers petition, the Becket Fund for Religious Liberty sensibly encourages the Court to hear the two cases in tandem. As the Becket Fund explains, while the two cases have some overlap, the Arlene’s Flowers petition presents “significant factual and legal aspects that are present in a large number of [religious wedding vendor] cases” but that are not involved in Masterpiece Cakeshop. (See amicus brief at 7-14 for specifics.) Further, “the Court has not hesitated to hear together appeals that present related-but-different factual and legal permutations” and “has frequently heard appeals in tandem when certiorari was granted on different dates,” and doing so here would “save Court resources and provide needed guidance to lower courts.”