ED WHELAN SHARES SOME OF HIS PRICELESS THOUGHTS ON ABSURD NOMINATION RHETORIC

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Some Thoughts on Nomination Rhetoric

By ED WHELAN

February 4, 2022 10:15 AM

Having been away for a few days, I’ll re-enter the fray by offering a few thoughts on the rhetoric surrounding President Biden’s impending selection of a nominee for Justice Breyer’s seat:

1. As this New York Times article recounts, “Many [black women lawyers] say they have experienced discrimination or been second-guessed” and have at times “felt dismissed by others in the legal world.” It is not surprising that their experience of feeling belittled will shape how they view commentary on the various candidates for the vacancy.

2. Biden’s commitment to consider only black women for the vacancy means that he is excluding from consideration lots of other candidates that he might deem qualified for a Supreme Court seat. It is a logical error to conclude that none of the current contenders would be under consideration if Biden were considering all possible candidates. At the same time, the unfortunate but foreseeable effect of Biden’s explicit exclusion of other candidates is to cast a cloud of suspicion over all of the contenders.

3. A Supreme Court nomination ought to be a time for public debate over the relative strengths and weaknesses of the leading candidates. But the Left has attempted to squelch debate at the outset by proclaiming all the contenders to be beyond amazing and by screeching racist in response to any scrutiny of a candidate’s record.

4. The public rhetoric is now shifting, as the behind-the-scenes fights among supporters of the various contenders come out into the open. Consider this NYT article that disparages Michelle Childs’s candidacy as a “blatant effort” by Congressman James Clyburn to “call in a political favor.” Ironically, this attack on Childs involves the same sort of logical misstep that the Left has been decrying: Clyburn’s support for Childs provides no more reason to discredit her as a candidate than Biden’s blatant commitment to nominate a black woman provides to discredit all the contenders.

Judge Ketanji Brown Jackson’s First Appellate Opinion

By ED WHELAN

February 4, 2022 10:56 AM

On Tuesday, Judge Ketanji Brown Jackson issued her first published opinion as a D.C. Circuit judge. Her opinion for the panel in American Federation of Government Employees v. Federal Labor Relations Authority holds that the agency responsible for overseeing labor relations with federal employees failed to adequately justify its new standard for determining that an employer’s change to the workplace is so minor that it does not trigger a duty to engage in collective bargaining.

Last week I highlighted legal-writing guru Ross Guberman’s competing assessments of the legal writing of Supreme Court contenders Ketanji Brown Jackson and Leondra Kruger, a competition in which Jackson fared very poorly. So I figured that I should note that her opinion garnered a much higher BriefCatch score than the district-court opinions that Guberman had rated. I likewise found the opinion to be well written overall (though with a couple of passages that called out for editing).

Of course, there are some things well beyond the reach of the best diagnostic software. On the Volokh Conspiracy, administrative-law expert Jonathan Adler faults Jackson for what he sees as a surprising misstatement and misapplication of Supreme Court precedent.

While I’m at it, I will also note that on Monday I poked fun at a sentence in a New York Times article that stated that “Judge Jackson has not yet written a body of appeals court opinions expressing a legal philosophy.” I found that a rather strange way to obscure that she hadn’t yet written a single appellate opinion. Some yahoos on Twitter condemned me for supposedly implying that she was unfit for the Supreme Court because she hadn’t published an appellate opinion. That’s not an intelligent reading of what I wrote, and it’s also a position that I had already explicitly rejected.

More Against Imaginary Middle Ground in Dobbs

By ED WHELAN

February 4, 2022 12:45 PM

As I’ve been pointing out for some time, Dobbs v. Jackson Women’s Health Organization puts the Supreme Court to a binary choice on Mississippi’s law that bars abortion (with some exceptions) after 15 weeks of gestation: Either the Court applies the Roe/Casey regime to hold that the statute is impermissible because it bars abortion before viability, or it overrules Roe and Casey and holds that the statute is permissible.

At oral argument in Dobbs, Chief Justice Roberts seemed to float the possibility of reconceiving Roe and Casey in a way that would allow the Mississippi statute to be enforced. In separate law-review articles, law professors Sherif Girgis and Eric Claeys explain why that theory sinks.

In “Misreading and Transforming Casey for Dobbs,” Girgis addresses the contention that a law that leaves women a fair opportunity to choose whether to abort—up until the 15th week, under the Mississippi law—shouldn’t count as an “undue burden” under Casey. As he explains, Casey uses “undue burden” in a “synchronic sense,” forbidding laws that make abortion too hard to get at any point before viability.

In “Dobbs and the Holdings of Roe and Casey,” Claeys comprehensively explains that the viability line (before which states can’t prohibit abortion) was part of the holdings of Roe and Casey and, contrary to what the Chief suggested, can’t fairly be characterized as dicta.

This Day in Liberal Judicial Activism—February 4

By ED WHELAN

February 4, 2022 8:00 AM

2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).

2005
—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as the union of a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, will reverse this ruling.

2016—A divided Ninth Circuit panel rules, in Smith v. Schriro, that Robert Douglas Smith was intellectually disabled when he committed acts of kidnapping, sexual assault, and murder in 1980. In the opening paragraph of her dissent from Judge Stephen Reinhardt’s lead opinion, Judge Consuelo Callahan observes (emphasis added):

“The one thing everyone appears to agree on is that Smith is not intellectually disabled. When tested in 2005 the experts found that he had an IQ of between 87 and 93, well within the low-average to average range of intellectual ability. Yet despite this fact, the majority reverses because it is certain that Smith was intellectually disabled in 1980 when he murdered Sandy Owen. The majority reaches this conclusion by disregarding the findings of the state courts, denying those courts the deference they are due, and expressing supreme confidence in its own ability to detect past intellectual disability despite substantial conflicting evidence and the fact that Smith is not now intellectually disabled. Accordingly, I dissent.”

This Day in Liberal Judicial Activism—February 3

By ED WHELAN

February 3, 2022 8:00 AM

1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell. Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg. Kennedy will sit on the Court for the next thirty years, until his retirement in 2018.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraced an aggressive view of judicial power. While he sometimes deployed that power towards conservative ends, his misdeeds of liberal judicial activism were far more momentous—and were often masked by grandiose rhetorical diversions. To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood v. Casey (1992). Translation: We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” Roper v. Simmons (2005). As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” So begins Justice Kennedy’s majority opinion in Obergefell v. Hodges (2015), inventing a constitutional right to same-sex marriage. Quoting this passage, Justice Scalia laments that the Supreme Court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Lawrence v. Texas (2003). Translation: We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Ashcroft v. Free Speech Coalition (2002) (emphasis added). It’s odd that Kennedy would think that speech (including opinion-writing?) should precede thinking. The notion is especially odd in a case concerning virtual child pornography.

2010In Perry v. Schwarzenegger—the case challenging California’s Proposition 8 and traditional marriage—the ACLU Foundation of Southern California continues its involvement in the case by filing a post-trial amicus brief on behalf of its national affiliate, the American Civil Liberties Union.

Ramona Ripston, the wife of Ninth Circuit judge Stephen Reinhardt, is the executive director of the ACLU Foundation of Southern California and (per its website) is “responsible for all phases of the organization’s programs, including litigation.” In addition to leading the political opposition to Proposition 8, Ripston engaged in confidential discussions with the lawyers for the Perry plaintiffs about whether they should file the case. And months later, she will publicly celebrate Judge Vaughn Walker’s decision striking down Proposition 8.

Yet when the wonders of not-random-after-all selection assign arch-activist Reinhardt to the Ninth Circuit panel to review Walker’s decision in this very case, Reinhardt somehow will decline to recuse himself. He will instead end up writing the majority opinion in support of (and providing the decisive vote for) a divided-panel holding affirming Walker’s ruling.

2021—A Ninth Circuit panel splits on the elementary question whether an alien has “reentered the United States illegally” when he was inadmissible at the time of his reentry. In his majority opinion (in Tomsyzk v. Wilkinson), Judge William Fletcher concludes that illegal reentry under that statutory text somehow “requires more than mere status of inadmissibility” and instead depends, in some indeterminate way, “on the manner and circumstances of the entry.”

In December 2021, in a unanimous opinion written by Judge Consuelo Callahan, the en banc Ninth Circuit will rule that Fletcher’s reading contravenes “the plain language of the statute,” is inconsistent with Ninth Circuit precedents, and would create a conflict with rulings of the Seventh and Tenth Circuits.

This Day in Liberal Judicial Activism—February 2

By ED WHELAN

February 2, 2022 8:00 AM

2009—Ninth Circuit judge Stephen Reinhardt, acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, opines that the federal Defense of Marriage Act is unconstitutional insofar as it requires that federal benefits available to spouses of federal employees not be extended to same-sex spouses. Disguising his administrative misdetermination as a Ninth Circuit judicial order, Reinhardt purports to direct the Administrative Office of the United States Courts to add an employee’s same-sex spouse as a beneficiary.

2017—Evidently unfamiliar with the humor of high-school yearbook editors, the Daily Mail and the New York Post trumpet a ridiculous claim that Supreme Court nominee Neil Gorsuch, while he was a high-school student, founded a student club named “Fascism Forever.”

2018—In Hill v. Anderson, a Sixth Circuit panel, in an opinion by Carter appointee Gilbert Merritt, rules that Danny Hill is entitled to federal habeas relief because the rulings of the Ohio courts against him in 2008 and earlier were contrary to Supreme Court precedent that was clearly established at the time of those rulings. But the Supreme Court precedent that the panel relies on most heavily is from 2017—years after the state rulings. The panel tries to cover its tracks by asserting that the Supreme Court’s 2017 ruling was “merely an application of what was clearly established by” a 2002 ruling.

Less than a year later, the Supreme Court will summarily reverse the Sixth Circuit for its “plainly improper” reliance on the 2017 ruling.


This Day in Liberal Judicial Activism—January 31

By ED WHELAN

January 31, 2022 8:00 AM

2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire takes effect. Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise. Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency. Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases. Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations.

This Day in Liberal Judicial Activism—January 30

By ED WHELAN

January 30, 2022 8:00 AM

2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails. The Senate respects its longstanding tradition of providing an up-or-down vote on the Senate floor to Supreme Court nominees who have been reported to the full Senate.

2014—By a vote of 5-1, the Maine supreme court, purporting to reconcile two statutes, rules that a public school is required to allow a “transgender girl”—that is, a boy who identifies as a girl—to use a girls’ bathroom.

As the dissenter argues, the ruling defies “the plain language of a specific statute [that] explicitly requires segregating school bathrooms by sex.” Further, the ruling construes the Maine Human Rights Act in a way that “inescapably lead[s] to the conclusion that an individual may not be denied access to public bathrooms based upon sex.” The majority doesn’t dispute this proposition, and one member of the majority expressly agrees with it.

In other words, under the court’s logic, men in Maine may now use any public women’s bathroom, and women in Maine may now use any public men’s bathroom. (A “public” bathroom is any bathroom in a “place of public accommodation,” such as a restaurant or store.) Indeed, even labeling a bathroom with a sign designating “Men” or “Women” violates the majority’s understanding of the MHRA.

This Day in Liberal Judicial Activism—January 29

By ED WHELAN

January 29, 2022 8:00 AM

1971—Two years before Roe v. Wade, a divided three-judge district panel rules in Doe v. Scott that the longstanding Illinois abortion statute is invalid in two respects. The majority holds, first, that the statute is unconstitutionally vague because its exception for abortions “necessary for the preservation of the woman’s life” is supposedly not sufficiently intelligible. Second, it determines that the Supreme Court’s ruling in Griswold v. Connecticut on a marital right to contraception compels the conclusion that the statute unconstitutionally invades a woman’s privacy interests. The court enjoins state officials from enforcing the statute against licensed physicians performing abortions during the first trimester in a licensed medical facility.

In an excellent dissent, senior district judge William Joseph Campbell faults the judges in the majority for “impos[ing] upon the people of Illinois their own views on this most important and controversial issue concerning public health and morals.” Judge Campbell points out that “we are presented with no actual circumstance where the vagueness question is in issue,” and he cites “numerous examples of statutes which have been held constitutional and which are not as clear and definite as this one.” He also finds “incredible” the majority’s assertion that “there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life.”

2004—Having somehow given her permission to the NOW Legal Defense and Education Fund to dedicate a lecture series in her honor, Justice Ruth Bader Ginsburg presents opening remarks at the fourth annual Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Never mind that the highly ideological NOW Legal Defense and Education Fund regularly files briefs in the Supreme Court—and indeed had filed a brief in a case that was pending when Ginsburg agreed to give her remarks.

Somehow many of the same folks who squawk when a conservative justice merely speaks to a conservative group that doesn’t litigate in the Supreme Court are silent at the extraordinary spectacle of a justice’s permitting a repeat litigant to name a lecture series in her honor.

2018—In Ragbir v. Sessions, federal district judge Katherine B. Forrest orders that the federal government release from its custody an alien, Ravidath Ragbir, who had forfeited his status as a lawful permanent resident and had been ordered deported from this country in 2006 because of his conviction in 2001 on charges of wire fraud and conspiracy to commit wire fraud. Forrest explicitly “agrees [with the government] that the statutory scheme governing [Ragbir’s] status is properly read to allow for his removal without further right of contest”—that it “allows [the government] to do what was done here,” i.e., to have Ragbir “suddenly taken into custody” earlier this month. But without citing any precedent, Forrest, trying to wax poetic, declares:

“There is, and ought to be in this great country, the freedom to say goodbye …, the freedom to hug one’s spouse and children, the freedom to organize the myriad of human affairs that collect over time.”

One might well lament that bureaucratic practices often aren’t as sensitive to real-life considerations as they might be. But Forrest’s notion that the Constitution forbids whatever she regards as unfair is simply lawless. And it seems perverse that, rather than giving the federal government any credit for the four stays of removal that it granted Ragbir since 2011, she invokes those stays only as evidence of the supposed cruelty of the government’s recent detention of him.

Worse, Forrest’s opinion is disingenuous nearly to the point of unintelligibility. Forrest asserts that Ragbir has “lived without incident in this country for years.” Only the very attentive reader will learn, in her eleventh and final footnote in the last paragraph of the body of her opinion, of the reason for Ragbir’s deportation order, his conviction in 2001. Until then, that reader might well have been puzzled over how a lawful permanent resident who had “lived without incident in this country for years” would find himself detained. As a matter of elementary judicial craftsmanship, his conviction should have been part of the basic narrative of the opinion.

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
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About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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