Don’t Turn Greg Katsas’ Nomination Into a Democratic Grievance Free-For-All

by Carrie Severino

The Senate Judiciary Committee is now holding its nomination hearing for Greg Katsas, President Trump’s nominee to the D.C. Circuit. Because he has served this year as Deputy White House Counsel, it appears committee ranking member Dianne Feinstein (D-CA) and her Democratic colleagues are using this as an opportunity to turn the hearing into an inquisition regarding virtually every aspect of the Trump administration they oppose. Such a strategy could operate as a subterfuge to overlook the nominee’s impeccable character and rich experience to serve as an appellate judge.

Hopefully this nomination will remain about the nominee’s qualifications and not become a free-for-all regarding the administration. There are prudential reasons for this concern even apart from the importance of filling vacancies in our woefully understaffed federal judiciary. Our constitutional separation of powers offers the president the right to receive candid and confidential advice, a consideration that should not be dismissed casually. The Supreme Court recognized as much in its landmark Watergate-era decision on executive privilege in United States v. Nixon (1974) even while it held that a “generalized assertion of privilege” without more would give way to a “demonstrated, specific need for evidence in a pending criminal trial.”

Whether or not the term “executive privilege” is used (it usually is not), the president’s interest in confidentiality has been asserted as early as the administration of George Washington, when the first chief executive was confronted with congressional demands for documents relating to military misfortunes and treaty negotiations. It remains consistent practice for senior executive branch officials to regard information regarding internal deliberations prior to reaching important decisions on policy and other key matters, including law enforcement investigations, as confidential.

In interbranch conflicts where presidents resist demands for testimony or documents from Congress, courts over the years following Watergate have been reluctant to intervene, preferring that the two branches negotiate their own resolution. In other contexts, however, we have instructive holdings from none other than the D.C. Circuit. In In re Sealed Case (1997), that court recognized that a “presidential communications privilege” applies “to communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.” As a member of such a staff, Katsas in his current position would be covered by that privilege. Unlike a narrower “deliberative process privilege” that applies to executive branch officials beyond an immediate White House adviser’s staff, the presidential communications privilege “applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.”

Consistent with the Nixon precedent, this privilege is not absolute, but it is “more difficult to surmount” than that based strictly on deliberative process. To overcome it, a party “must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials.” In other words, before demanding testimony or documents from a White House adviser’s staff, show why you need the information from that source and why you cannot get it elsewhere.

When Brett Kavanaugh had his nomination hearing for the D.C. Circuit in 2006, he was asked about issues on which he had given advice as Staff Secretary to President Bush. He refrained from giving more than a general idea of the subject matter he encountered in that position and would not discuss any specific advice he offered. The Senate confirmed him 2½ weeks later.

In this case, Katsas should fare no worse. He enjoys a reputation for integrity and is not facing allegations of involvement in, or even knowledge of, government misconduct. His name has not come up in connection with arguably the Democrats’ top investigative priority this year—one initiated by the Judiciary Committee’s Republican chairman: the probe of Russian interference in the 2016 election and the firing of James Comey. If Katsas had information critical to that investigation, you can bet it would have come up there.

Still, given their track record, don’t be surprised at the spectacle of the Democrats ignoring other venues for investigation and behaving as if they are participating in a kitchen-sink executive branch oversight hearing instead of a judicial nomination hearing.

Update: During the hearing, Katsas testified that he had not worked on any matter relating to the dismissal of James Comey or to Paul Manafort, including his June 9, 2016, meeting with a Russian attorney, and that he lacked knowledge of any underlying facts on the question of Russian interference in the 2016 election. His only work that even related to Special Counsel Robert Mueller’s probe was confined to “a few discrete legal questions arising out of the investigation.” Accordingly, he also testified that the special counsel has not asked to interview him in connection with his investigation. For that matter, he added that he only learned of Comey’s dismissal when he saw mention of it on television. Based on this, the Committee could not make a serious argument overcoming the presumption of executive privilege.

 

This Day in Liberal Judicial Activism—October 16

by Ed Whelan

1898 — William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.

This Day in Liberal Judicial Activism—October 15

by Ed Whelan

1956 — So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.

2014 — By a vote of 9 to 2, a limited en banc panel of the Ninth Circuit rules (in Lopez-Valenzuela v. Arpaio) that an Arizona law that bars pretrial release of an illegal alien charged with a serious felony offense violates substantive due process.

Dissenting months later from the Supreme Court’s refusal to review the ruling, Justice Thomas, joined by Justice Scalia, will lament that the Court fails to exercise its certiorari discretion “with a strong dose of respect for state laws” and that “indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds.”

This Day in Liberal Judicial Activism—October 14

by Ed Whelan

1983 — When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.

UVA Law Event on Scalia Speaks

by Ed Whelan

Next Tuesday, October 17, at 11:30, I’ll be at the University of Virginia law school to discuss Scalia Speaks, the bestselling collection of Justice Scalia’s speeches that I’ve co-edited. I’m very pleased that UVA law professors (and fellow former Scalia clerks) John Duffy and Aditya Bamzai will also take part.

The event, which is jointly sponsored by the law school’s Federalist Society chapter and by its St. Thomas More Society, will take place in Caplin Pavilion and will include a free lunch. And, yes, copies of Scalia Speaks will be available for purchase.

Scalia Speaks Hits NYT Best Sellers List

by Ed Whelan

I’m delighted to report that after its first week of sales Scalia Speaks (which I co-edited) is already a “Best Seller”: #15 on the New York Times Best Sellers list for hardcover nonfiction.

While I’m at it, I’ll highlight some more rave reviews (on top of previous ones I’ve highlighted):

In the new (Oct. 30) issue of National Review, James Rosen praises Scalia Speaks as “engrossing and invaluable, a treasure for lawyers and non-lawyers alike, a milestone in the literature of this profoundly influential American and in the annals of the Supreme Court.”

In her nationally syndicated column, my Ethics and Public Policy Center colleague Mona Charen finds “many reasons to rejoice at [this] new collection of Scalia’s speeches”: his “vivid prose,” his “characteristic drollery,” “an almost intimate picture of one of the giants of our age.” Further:

There is much to learn in these speeches about the Constitution, Western civilization, the intersection of faith and public policy, American history and, of course, the law. But the thread that connects all is Scalia’s bone-deep appreciation for the primacy of character.

Scalia Speaks is available everywhere, including at Costco. Buy it now, for yourself and for your family and friends. You’ll be very glad that you did.

This Day in Liberal Judicial Activism—October 12

by Ed Whelan

1985 — In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.

Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:

When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.

But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.

Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

Speaking of ‘Sociological Gobbledygook’

by Ed Whelan

In a grandstanding letter to Chief Justice Roberts, Eduardo Bonilla-Silva, president of the American Sociological Association, takes umbrage at the Chief’s reference to “sociological gobbledygook” at oral argument in the redistricting case of Gill v. Whitford. But Silva does so only by grossly misrepresenting Roberts’s point.

Silva gets on his high horse by pretending that the Chief was dismissing all of sociology as “gobbledygook.” But the Chief was instead characterizing the sorts of standards that were being advanced as measures of an unconstitutional gerrymander. Here’s the set-up for his remark (pp. 37-38 (emphasis added)):

Mr. Smith, I’m going to follow an example of one of my colleagues and lay out for you as concisely as I can what — what is the main problem for me and give you an opportunity to address it….

[I]f you’re the intelligent man on the street and the Court issues a decision, and let’s say, okay, the Democrats win, and that person will say: “Well, why did the Democrats win?” And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans.

It’s stuff like this that the Chief is plainly referring to when, replying to Paul Smith’s response, he says (p. 40) that “the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but [what] I can only describe as sociological gobbledygook.” [Addendum in response to one reader's confusion: If Bonilla-Silva had undertaken to defend the standards that the Chief was criticizing, rather than to misread the Chief as dismissing all of sociology, I would not enter into the debate.]

Pro tip to Bonilla-Silva: If you’d like to convince someone that your field “is rigorous and empirical,” it would help if you displayed some intellectual rigor and attention to actual facts.

What’s even funnier about Bonilla-Silva’s letter is that he offers “just a few examples of the contributions of sociological research to American society that our members offered in response to your comment.” But he doesn’t offer any citations in support of his laundry list (which includes things like “Modern public opinion polling”). It seems as if he’s just sent out an email soliciting such examples and copied and pasted in whatever responses he received.

Bonilla-Silva even has the gall to offer this invitation to the Chief: “Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff.”

If the Chief does happen to have the preconception that many sociologists are pretentious buffoons, Bonilla-Silva’s letter will reinforce that preconception.

Addendum: A reader also points out that Bonilla-Silva dated his letter “October 9, 2018.” Yes, the sort of mistake anyone can make. But reflective of the top-to-bottom sloppiness of his letter. (Update (12:10 p.m.): The ASA has now changed both the online version and the PDF, so it now presents a false version of the letter that it sent to the Chief. Now that’s some display of intellectual integrity!)

This Day in Liberal Judicial Activism—October 11

by Ed Whelan

1990 — More from Florida justices Rosemary Barkett and Gerald Kogan. In Stall v. State, the Florida Supreme Court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional. In a brief dissent, Barkett, joined by Kogan, asserts: “A basic legal problem with the criminalization of obscenity is that it cannot be defined.… Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.” Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”

Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections. Nor does she recognize that there are any number of criminal laws — criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide — whose definition or application is not more objectively “obvious to all” than for obscenity.

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

Judicial Nominations Update

by Carrie Severino

At its markup last Thursday, the Senate Judiciary Committee voted on, among others, the nominations of Amy Coney Barrett and Joan Larsen, advancing them to the Senate floor.  This brings the number of judicial nominees awaiting confirmation votes to a total of ten.  The Senate is currently in the midst of a one-week recess and returns next Monday, October 16th.

Number of total current and known future vacancies: 166

Courts of Appeals: 27

District/Specialty Court*: 139

Number of pending nominees for current and known future vacancies: 54

Courts of Appeals: 14

District/Specialty Courts: 40

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

Nominees Awaiting Floor Votes

Courts of Appeals: 2

District/Specialty Courts: 8

Nominees Confirmed by the Senate

Courts of Appeals: 4

District/Specialty Courts: 2

This Day in Liberal Judicial Activism—October 10

by Ed Whelan

2008 — By a vote of 4 to 3 — with the decisive vote provided by a lower-court judge who, as a result of two curious recusals, was sitting in for the chief justice — the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, invents a right to same-sex marriage under the state constitution.

Richmond and William & Mary Events on Scalia Speaks

by Ed Whelan

This Wednesday evening at 6:00, I’ll be at the University of Richmond law school to discuss Scalia SpeaksThe event is jointly sponsored by the law school’s Law Library and its Federalist Society chapter as well as by the St. Thomas More Society of Richmond. Richmond law professor (and fellow member of the Scalia law family) Kevin C. Walsh will also take part.

On Thursday, I’ll be at William & Mary law school for a lunchtime discussion of Scalia Speaks. This event is jointly sponsored by the law school’s Institute of Bill of Rights Law and its Federalist Society chapter. Also kindly taking part will be W&M law professors Neil C. Devins, director of the Institute of Bill of Rights Law, and Alan J. Meese, a former Scalia clerk.

This Day in Liberal Judicial Activism—October 9

by Ed Whelan

1986 — In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams — well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”

This Day in Liberal Judicial Activism—October 8

by Ed Whelan

2006 — New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’ — not opinion — that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….  Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

This Day in Liberal Judicial Activism—October 6

by Ed Whelan

2000 — Liberal judicial activists eagerly seize opportunities to expand unsound or dubious precedents. In 1971, the Supreme Court had ruled in Bivens v. Six Unknown Federal Narcotics Agents that the Constitution confers a claim for damages against a federal agent for allegedly unconstitutional conduct. Writing for a Second Circuit panel in Malesko v. Correctional Services Corp., Judge Sonia Sotomayor rules that a Bivens claim may also be made against a private corporation acting under color of federal law.

One year later, the Supreme Court will reverse the Second Circuit ruling by a 5-4 vote.

My Favorite Tweets on Scalia Speaks

by Ed Whelan

“Can’t put it down. Hilarious, incisive, brilliant. And well edited. Will read and reread again and again.” That’s a tweet about Scalia Speaks from Edward Gero, the talented actor who masterfully depicts Justice Scalia in The Originalist. And here’s another from him: “A witty, insightful treasure of his speeches. A must read and re-read. Get it.”

New Challenge to P.C. Racial Gerrymandering

by Roger Clegg

The indispensable law firm (who knew there could be such a thing?) Consovoy McCarthy Park filed an important lawsuit on Wednesday, challenging the constitutionality of the California Voting Rights Act. That statute requires in particular that race-based single-member districts be created and that they replace at-large systems if “racially polarized” voting exists; the complaint alleges that this violates the Fourteenth Amendment because such “race-based sorting of voters” does not serve a compelling government interest and is not narrowly tailored.

The lawsuit is important not just because it challenges an aggressive, identity-politics-uber-alles law in our nation’s largest state, but because the federal Voting Rights Act is frequently used to coerce racially gerrymandered districts as well. To be sure, the California law goes further than the federal law has (so far), and indeed was passed to circumvent limits put on racial gerrymandering by the U.S. Supreme Court. But a successful lawsuit here could have salutary effects in other states and at the federal level, too.

So kudos all around: to the law firm, to the plaintiff (a former mayor, Don Higginson), and to Ed Blum and the Project for Fair Representation, who acted as matchmaker for the two.

Scalia Speaks: What Makes an American

by Ed Whelan

I’m going to offer occasional glimpses at the wonderful collection of Justice Scalia’s speeches in Scalia Speaks. With Columbus Day just around the corner, I figured that I’d highlight the opening speech in the collection: Justice Scalia’s speech to the National Italian American Foundation in October 1986—just one month after he became the first Italian-American Supreme Court justice. In that speech, which we’ve put under the heading “What Makes an American,” the Justice reflects on “why we are proud of our Italian heritage—and about why that pride makes us no less than 100 percent Americans.”

Scalia praises 19th-century Italian immigrants for their “capacity for hard work,” “love of family,” “love of the church,” and “love of the simple physical pleasures of human existence: good music, good food, and good—or even pretty good—wine.” He continues:

We have shared those qualities with our fellow Americans— as they have shared the particular strengths of their heritages with us. And the product is the diverse and yet strangely cohesive society called America. It is a remarkable but I think demonstrable phenomenon that our attachment to and affection for our particular heritage does not drive our society apart, but helps to bind it together. Like an intricate tapestry, the fabric of our society is made up of many different threads that run in different directions, but all meet one another to form the whole.…

While taking pride in what we have brought to America, we should not fail to be grateful for what America has given to us. It has given us, first and foremost, a toleration of how different we were when we first came to these shores. What makes an American, it has told us, is not the name or the blood or even the place of birth, but the belief in the principles of freedom and equality that this country stands for.

There’s much more in this short but beautiful speech—and a lot, lot more in Scalia Speaks.

Upcoming D.C. Events for Scalia Speaks

by Ed Whelan

Next Tuesday, my co-editor Chris Scalia and I will take part in a noontime Hoover Institution event titled “Scalia Speaks: Collecting the Wit and Wisdom of Justice Antonin Scalia.” Hoover Institution scholar Adam White, author of this very thoughtful and favorable review of Scalia Speaks, will lead the discussion. And there’s also this plum: “A limited supply of complimentary copies of Scalia Speaks will be available at the event.” More info here.

At 4:00 on Tuesday afternoon, I’ll be at Catholic University law school to discuss the book with law school dean Daniel Attridge and law professor Mark Rienzi. Justice Scalia had a special fondness (combined with high expectations) for Catholic University—it was the venue for two very interesting speeches in Scalia Speaks—so I especially welcome the opportunity. More info here.

This Day in Liberal Judicial Activism—October 5

by Ed Whelan

1995 — In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions — and “all government officials and employees during the performance of government business” — “shall act in English.” In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.

Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.” Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”: “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.” Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures.

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Arizona) shows. In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit: “The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.” Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains. First, the cause of action under which the plaintiff sued creates no remedy against a state. Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor. Ginsburg notes this “lapse” in Reinhardt’s reasoning: “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona Supreme Court’s authoritative reading of the provision. Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.