This Day in Liberal Judicial Activism—March 30

by Ed Whelan

1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.” In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring”. But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional. (See This Day entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)

2001—After nearly six years in which his preliminary injunction has operated to prevent Indiana from implementing an informed-consent statute for abortion that is materially identical to the provisions that the Supreme Court held to be constitutionally permissible in 1992 in Planned Parenthood v. Casey, federal district judge David F. Hamilton enters a permanent injunction against the statute. In doing so, Hamilton rests heavily on a statistical study, conducted by a sociologist at the Alan Guttmacher Institute, that related entirely to the effects of a waiting-period provision in Mississippi. Never mind that the Seventh Circuit had already determined, in a 1999 case involving Wisconsin’s informed-consent law, that the Mississippi study should not be relied on. A Seventh Circuit panel (with abortion radical Diane Wood in dissent) later reverses Hamilton’s injunction.

In 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to a federal appellate seat.


Senate Democrats v. Free Speech

by Carrie Severino
Senator Schumer just joined Senators Whitehouse and Blumenthal in a “press conference” to criticize my organization, the Judicial Crisis Network, for its role in opposing Judge Garland’s nomination and in supporting Judge Gorsuch’s nomination.  Like third-world strongmen on a mission to stop dissent, they are demanding that we disclose our donors.  If they want to be known for an approach to public policy that relies on bullying and intimidation, that is their loss. We are not afraid.  We are proud to count on supporters who value privacy and freedom of expression and we will continue to support the confirmation of exceptionally qualified nominees like Neil Gorsuch.

This Day in Liberal Judicial Activism—March 29

by Ed Whelan

2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections. Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general. So what? As Justice Scalia responds: “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”

Jeffrey Toobin Smears Gorsuch

by Ed Whelan

The New Yorker’s Jeffrey Toobin has penned a hit piece on Supreme Court nominee that plumbs new depths of incompetence.

1. When I first skimmed the piece, I was struck by Toobin’s discussion of the TransAm trucker case. Here’s his entire account of the positions taken by the majority and by Gorsuch’s dissent:

The majority in the case called the dismissal unjustified, but Gorsuch said that the driver was in the wrong.

But, as I’ve explained (and as ought to have been obvious to anyone who paid attention to the hearing), the panel wasn’t deciding whether the company’s dismissal of the trucker was generally “unjustified.” Rather, it was deciding whether a specific whistleblower provision, which makes it unlawful for an employer to discharge an employee who “refuses to operate a vehicle” because of safety concerns, barred the firing. Far from maintaining that “the driver was in the wrong,” Gorsuch merely concluded that the whistleblower provision did not apply:

[T]hat statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department [of Labor] would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place. [Italics in original; underlining added.]

Gorsuch didn’t defend the company’s conduct. He simply opined that the company hadn’t violated the whistleblower provision:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Gorsuch’s dissent, which Toobin mislabels as being “of almost Gothic cruelty,” is all that Toobin offers for his claim that Gorsuch has a “predilection for employers over employees.”

2. As I looked more carefully, I discovered that Toobin’s piece was a cavalcade of folly. Some examples:

a. Toobin claims that “Gorsuch portrayed himself as a kind of judicial automaton, obligated to pay mindless obeisance to the Court’s prior rulings.”

Did Toobin actually watch any of the hearing? Gorsuch specifically stated that judging is not a matter of applying “algorithms.” Further, he treated precedent only as the starting point, and, far from ever claiming that precedent is sacrosanct, referred repeatedly to the various factors (discussed in the 900-page book on precedent that he recently co-authored) that bear on whether and when precedent should be overturned.

b. Toobin asserts that Gorsuch’s “background also includes a dose of pro-corporate, deregulatory libertarianism, as reflected in his close relationship with the billionaire Philip Anschutz, a client turned mentor.”

I’ve seen Anschutz described as a conservative Christian, not a libertarian, and if there was anything in Gorsuch’s legal work that advanced the cause of “pro-corporate, deregulatory libertarianism,” I don’t see it in this New York Times account of Gorsuch’s relationship with Anschutz. As a Tenth Circuit judge, Gorsuch has recused himself from all cases involving Anschutz and his companies, and, per NYT, the continuing “close relationship” consists of little more than Gorsuch’s being a “semiregular speaker” at Anschutz’s “dove-hunting retreats.”

c. Toobin claims, “A sampling of authoritarianism can be seen in Gorsuch’s service in George W. Bush’s Justice Department, where he helped craft a proposal for the treatment of detainees at Guantánamo.” But the proposal Toobin is referring to was the bipartisan Detainee Treatment Act, which aimed to clarify the handling of detainees suspected of terrorism. The Senate approved the two separate measures that comprise the Act by votes of 90-9 and 84-14. That’s sure some “authoritarianism.”

d. Of Gorsuch’s 320-page book against assisted suicide, Toobin claims, “It’s easy to read the book as a coded attack on abortion rights.” Yeah, right: a 320-page code that has a footnote that specifically disclaims addressing the abortion issue. Toobin gives no sign that he’s read a page of the book.

e. Toobin claims that “Gorsuch would embrace the deregulation of campaign finance” and, as his sole support for that proposition, states that Gorsuch “argued in an opinion that judges should evaluate limits on political contributions using the same tough standards that they apply to racial discrimination.” But, as he testified (and as I’ve shown), Gorsuch made no such argument but instead highlighted the “conflicting cues” that Supreme Court precedents provided.

f. Toobin claims that Gorsuch was “taking a side in the culture wars” when he and his fellow members of the en banc majority in the Hobby Lobby case “ruled that a multibillion-dollar corporation could withhold federally guaranteed rights to birth control from thousands of female employees because of the religious beliefs of the corporation’s owners.”

The reader would have no idea that the ruling vindicated the “federally guaranteed rights” of religious liberty that the federal Religious Freedom Restoration Act provided, nor that the corporation was closely held (rather than public). Far from “taking a side in the culture wars,” Gorsuch merely enforced the text of federal religious-liberty laws, just as he has done on behalf of a Native American prisoner seeking access to a sweat lodge and a Muslim prisoner seeking halal food.

g. Toobin finds it “embarrassing” for Gorsuch that the Supreme Court “unanimously rejected one of his holdings” on the second day of his testimony. Never mind that the actual case before the Court wasn’t Gorsuch’s but a follow-on. Toobin doesn’t inform his readers that liberal Clinton appointee Mary Beck Briscoe joined Gorsuch’s unanimous opinion nor that they were seeking to apply circuit precedent.

h. Toobin claims that, by not acting on President Obama’s nomination of Merrick Garland, “the Republicans denied Obama his constitutional right.” But Obama did not have a “constitutional right” to have Garland confirmed. He had a constitutional power to nominate Garland, and he exercised that power. The Senate had a constitutional power to block that nomination, and it exercised that power. Simple as that.

New York/New Jersey Events

by Ed Whelan

On Wednesday, if New York and New Jersey transportation networks function passably, I’ll have three events on three different topics:

At noon, I’ll be at Cardozo law school in New York City for a “Supreme Court Roundup” sponsored by the law school’s Federalist Society chapter. My fellow panelists are law professors Kate Shaw and Sabeel Rahman and Cato’s Ilya Shapiro. (I’ve corrected this event description.)

At 4:15, I’ll be at Pace law school in White Plains for a debate/discussion with law professor Darren Rosenblum titled the “New Gender Neutral Bathrooms.” (The title, as I understand it, draws on the fact that Pace has recently established a number of multiple-occupancy gender-neutral bathrooms, but the discussion will focus more on the legal issues concerning transgender individuals and single-sex facilities.) The event is sponsored by the law school’s Federalist Society chapter.

In the evening, I’ll be at the Morris Museum in Morristown, New Jersey, to discuss “Judicial Nominations in the Trump Administration: Challenges and Opportunities” with the New Jersey lawyers chapter of the Federalist Society.  

This Day in Liberal Judicial Activism—March 27

by Ed Whelan

1931—Stephen Reinhardt is born in New York. Appointed to the Ninth Circuit by Jimmy Carter in 1980, Judge Reinhardt has earned notoriety as the “liberal badboy of the federal judiciary.” In his overtly political view of judging, “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.”


2014—Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court.” But that clear bar somehow doesn’t stop Second Circuit judge Guido Calabresi from collaborating in the publication of an extended interview about the pending Supreme Court case of Town of Greece v. Galloway. That case, in which Calabresi wrote the opinion under review, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.

Among other things, Calabresi seeks to defend his ruling, says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”

Barely a month later, the Supreme Court, by a vote of 5 to 4, will reverse Calabresi’s ruling.

This Day in Liberal Judicial Activism—March 26

by Ed Whelan

1997—After two decades of school-desegregation litigation in Jenkins v. Missouri, federal district judge Russell G. Clark issues his final order in the case. Clark’s desegregation plan for the Kansas City, Missouri, School District has been (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” As this report summarizes it, Clark has ordered the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results, however, have proven dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”

2009—In an academic paper titled “Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees,” political scientists Richard L. Vining, Jr., Amy Steigerwalt, and Susan Navarro Smelcer present their statistical findings that “suggest the presence of some systematic bias towards Democratic nominees in the ABA’s ratings.” Among their findings: “In sum, when we isolate the effect of ideology, we find that, all else being equal, liberal nominees are more likely to receive the highest possible rating than their conservative counterparts.”

This Day in Liberal Judicial Activism—March 25

by Ed Whelan

1987—So much for the express ban on employment discrimination set forth in Title VII of the Civil Rights Act of 1964. Justice Brennan’s majority opinion in Johnson v. Transportation Agency holds that a Santa Clara County agency “appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted.”

Never mind that the county’s affirmative-action program explicitly embraced the goal of racial and sex quotas (“attainment of a County work force whose composition … includes women, disabled persons and ethnic minorities in a ratio in all job categories that reflects their distribution in the Santa Clara County area work force”). And never mind that, according to the undisturbed findings of the district court, the county had never discriminated against women in employment and that Joyce’s sex was the “determining factor” in her selection.

As Justice Scalia points out in his dissent, Title VII speaks with “a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship.” But the Supreme Court “completes the process of converting [Title VII] from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will, and it thus “replace[s] the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and sex in the workplace.” In sum: “A statute designed to establish a color-blind and gender-blind workplace has thus been converted into a powerful engine of racism and sexism, not merely permitting intentional race- and sex-based discrimination, but often making it, through operation of the legal system, practically compelled.”

1993—In her plurality opinion in Wyche v. State, Florida chief justice (and, thanks to President Clinton, later Eleventh Circuit judge) Rosemary Barkett strikes down as facially unconstitutional an ordinance that prohibits loitering for the purpose of prostitution. Barkett strains to misread the ordinance as not requiring, as an element of the crime, a specific intent to engage in prostitution. Further, she asserts that even if specific intent were required, the ordinance would still be unconstitutional because of the hypothetical possibility that it could be applied in a manner that would chill First Amendment speech. Never mind that it’s difficult to see how the ordinance would reach any constitutionally protected activity, much less the substantial quantum needed for First Amendment overbreadth doctrine to apply to a facial challenge.

In two other cases that same day (E.L. v. State and Holliday v. City of Tampa), Barkett similarly strikes down as facially unconstitutional ordinances prohibiting loitering for the purpose of engaging in drug-related activity. So much for the ability of crime-ridden communities to combat the scourges of prostitution and drugs.

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

Gridlock Chuck’s Political Game To Blow Up Senate Tradition

by Carrie Severino

Senator Schumer has publicly announced that he plans to lead a filibuster against Judge Gorsuch’s nomination to the Supreme Court. That’s no surprise. We all knew Gridlock Chuck would spring into action sooner or later. What surprises me quite a bit more is how much credit reporters are giving him for standing up for the traditions of the Senate. That is an inaccurate way of framing things, to say the least.

For decades, Democrats have been playing hardball when it comes to using the U.S. Senate as a tool to turn the federal courts into a rubber stamp for the left’s political agenda. They don’t want judges like Judge Gorsuch, who are willing to decide cases without regard to their outcomes – they want politicians in robes.

Senator Graham described it well: “What Senator Schumer is doing is changing 200 years of precedent in the Senate because he can not stand the pressure from the left.”

It was Schumer himself who orchestrated the 2003 filibuster of Miguel Estrada to the D.C. Circuit, the first time in Senate history that a judicial nominee with clear majority support had even been denied confirmation due to a filibuster. On seven cloture votes, Estrada received majority support each time, but never enough votes for cloture.

In fact, that era fundamentally transformed the way the Senate handles judicial nominations. The successful and strictly partisan filibusters of ten Bush appellate nominees shattered Senate traditions. The principle of self-restraint was discarded. While the right to filibuster existed throughout Senate history, it was not exercised to block nominees brought to the Floor with majority support from receiving confirmation votes. 

Until 2003, cloture motions to end a filibuster were filed on only 17 judicial nominees.  Apart from Supreme Court nominee Abe Fortas in 1968 – a nominee widely regarded as a crook, who faced broad bipartisan opposition – all were confirmed.

Prior to 2003, judicial confirmation battles occurred, but almost always without attempted filibusters. These included Justice Clarence Thomas, who was confirmed 52-48 on an up-or-down vote and many appellate nominees who had majority support but significant minority opposition. In these decades, even through highly contentious confirmation processes the principle of self-restraining the filibuster on judicial appointments was maintained.

Exercising the constitutional option on the Gorsuch nomination would reinforce Senate tradition that judicial appointments brought to the Floor are not blocked by filibuster and receive a confirmation vote.

And, lest you have any doubt that Democrats would exercise that option if given the opportunity, I’ll say two things:

First, Democrats have already done it, with respect to lower court nominees, so we have previous behavior to inform our understanding of how they might behave in the future.

Second, when Senator Reid and Vice Presidential Nominee Tim Kaine believed Hillary was going to win the presidency, they made it explicitly clear that they would invoke the constitutional option to confirm her Supreme Court nominees.

In summary, Gridlock Chuck has made it clear time and time again that he is willing to destroy every norm and tradition in the Senate for the sake of turning our federal courts into rubber stamps for a left-wing political agenda. Now he is at it again, by threatening to make Judge Gorsuch the first Supreme Court nominee in U.S. history with majority support to fail because of a filibuster. Republicans appear poised to restore the tradition of the Senate by invoking the constitutional option and voting to confirm Judge Gorsuch with a bare majority, and I look forward to standing with them if it comes to that.

Senator Schumer’s Washington Post Handmaidens

by Ed Whelan

Habituated as I am to the Washington Post’s left-wing bias, I’m still surprised by particular glaring instances. Take, for example, today’s front-page article, written by Robert Barnes, Ed O’Keefe, and Ann E. Marimow, on Senator Schumer’s filibuster threat against Supreme Court nominee Neil Gorsuch.

The article is titled (in the print edition) “Filibuster against Gorsuch promised.” It asserts early on:

Republicans have vowed Gorsuch will be confirmed even if it means overhauling the way justices have long been approved. Traditionally, senators can force the Senate to muster a supermajority just to bring up the nomination of a Supreme Court justice. [Emphasis added.]

It later observes that “the 60-vote threshold has not caused a problem” for recent Supreme Court nominees.

Some observations:

1. What a strange headline. (I presume that the editors, not the reporters, are responsible for the headline.)

Filibusters aren’t usually “promised” (a word with very positive connotations); they’re threatened. Indeed, my quick Lexis search on WaPo articles over the last 10 years has filibuster associated with threat some 85 times, compared to a mere three for promise. (My search included cognates of the three words.)

To be sure, every threat could be recast as a promise (“the kidnapper promised to kill his hostage”), but the usual parlance is that filibusters are threatened.

And, no, the headline can’t be defended on the ground that Senator Schumer’s statement has gone beyond a threat. Indeed, the carryover headline (on page A5) sensibly speaks of “Filibuster threat….”

The passive voice in the headline is also odd. Why not “Schumer threatens Gorsuch filibuster”? I’m guessing that the answer is that the headline editors sensed that it wouldn’t poll as favorably.

2. The passage indented above gets the Senate tradition exactly backwards. Yes, Senate rules have since 1949 nominally allowed cloture votes on Supreme Court nominees. (And, of course, they allowed the same thing for lower-court and executive-branch nominations up until Democrats abolished the filibuster for those nominations in November 2013.) But the tradition under those rules is that cloture votes have been rare—which is all the more remarkable since any single senator has the power to insist on a cloture vote.

According to the Washington Post’s Glenn Kessler, there have been only four cloture votes on Supreme Court nominees (among the more than 30 nominations to reach the Senate floor since 1949): In 1968, the bipartisan negative votes on cloture blocked LBJ’s effort to elevate Abe Fortas to chief justice. In 1971, a motion to invoke cloture on Nixon’s nomination of William H. Rehnquist failed, but a final merits vote on the nominations was allowed that same day. (That would indicate that the cloture vote wasn’t part of a filibuster effort but was instead done for other reasons, but I haven’t researched the matter.) In 1986, Democrats failed to block cloture on Reagan’s elevation of Rehnquist to chief justice. And in 2006, the Democrats’ filibuster effort against the Alito nomination failed.

In short, the reporters confusingly—and, it seems to me, artfully—misuse “Traditionally” to refer to what the Senate rules allow rather than to the actual practice under those rules.

3. On an accurate understanding of the Senate’s dominant traditional practice, abolition of the filibuster for Supreme Court nominees, far from “overhauling the way justices have long been approved,” would ensure the continuation of that traditional practice.

4. By speaking of a supposed “60-vote threshold” and measuring recent nominees’ final confirmation votes against that supposed threshold, the reporters buy into the very spin that Senate Democrats have been making—and that their own WaPo colleague Glenn Kessler has punished with Two Pinocchios.

5. The bigger picture here is that Senate Democrats have been trying to lay the groundwork to depict their extraordinary potential filibuster as something ordinary—and to paint Republicans as the aggressors for moving to abolish the Supreme Court filibuster. Their goal, of course, is to lower the political costs of filibustering the Gorsuch nomination and to raise the political costs for Republicans to abolish the filibuster.

Barnes, O’Keefe, and Marimow have shown themselves to be eager handmaidens of the Democrats.

This Day in Liberal Judicial Activism—March 24

by Ed Whelan

1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.” The court orders the General Assembly to “create an entirely new school financing system.” (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit. Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice.

No Deal

by Ed Whelan

Politico reports that some Senate Democrats might try to pursue a deal with Senate Republicans that would “allow confirmation of [Supreme Court nominee Neil] Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent [Supreme Court] vacancy during President Donald Trump’s term.”

There is no reason for any Senate Republicans to entertain this foolish deal. Such a deal would give Senate Democratic leader Chuck Schumer a preemptive veto over the next Supreme Court nominee.

If Senate Democrats are serious about filibustering the Gorsuch nomination, that shows that there is no plausible nominee of a Republican president whom they wouldn’t filibuster—and no one worthwhile who would ever get Schumer’s okay.

It’s time to put Senate Democrats to the test. If they defeat cloture on the Gorsuch nomination (by preventing 60 yes votes on cloture), the only sensible response from Senate Republicans is to do what Senate Democrats boasted they would do in the same scenario: abolish the filibuster for Supreme Court nominees.

It makes no sense for Republicans to allow a double standard under which Supreme Court nominees of a Republican president are subjected to a filibuster but Senate Democrats, when back in the majority, would be free to abolish the filibuster for Supreme Court nominees of a Democratic president.

This Day in Liberal Judicial Activism—March 23

by Ed Whelan

1970—By a vote of 5 to 3, the Supreme Court, in an opinion by Justice Brennan, rules in Goldberg v. Kelly that the Constitution requires that the government provide an evidentiary hearing before terminating welfare payments to an individual whom it has determined is not eligible to receive such payments. Justice Black objects in dissent:

I would have little, if any, objection to the majority’s decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient.… [I]t is obvious that today’s result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.

2004—The Left is adept at what Abraham Lincoln labeled “lullaby arguments”—false claims designed to lull the listener into a sense of complacency. In testimony at a Senate hearing, law professor Cass Sunstein argues that a constitutional amendment on marriage is unnecessary because the prospect that the Supreme Court would invent a constitutional right to same-sex marriage is utterly fanciful:

It is possible that the Chicago White Sox and the Chicago Cubs will meet in the World Series and play to a seventh game tie. That is unlikely, but that scenario is more likely than it is that the Supreme Court of the United States, as currently constituted, will hold that there is a constitutional right to same-sex marriage. This is a reckless conception of what is on the horizon and it is indefensible by reference to anything any Supreme Court Justice has said, at least on the bench, and I believe even off the bench.

Sunstein was testifying less than one year after the Supreme Court’s 6-3 decision in Lawrence v. Texas. In his majority opinion for five justices in that case, Justice Kennedy combined his usual gauzy rhetoric with the specific assertions that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child reading, and education” (emphasis added) and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” So much for Sunstein’s claim that any concern that the Court might “hold that there is a constitutional right to same-sex marriage” was “a reckless conception of what is on the horizon” and “indefensible by reference to anything any Supreme Court Justice has said.” 

2009—President Obama nominates radical transnationalist Harold Koh to be State Department legal adviser, a position that would give Koh a cornucopia of opportunities to advance his agenda of having American courts import international law to override the policies that American citizens adopt through the processes of representative government. (See here for more detail.) Three months later, the Senate confirms Koh by a 62-35 vote.

Trump Nominates Thapar to Sixth Circuit

by Jonathan H. Adler

Yesterday, President Donald Trump announced his intent to nominate Judge Amul Thapar to one of two open seats on the U.S. Court of Appeals for the Sixth Circuit. For Bench Memos readers, this should come as no surprise. Judge Thapar is currently a federal district court judge in Kentucky, and previously served as a federal prosecutor. His nomination was urged by Senate Majority Leader Mitch McConnell.

This Day in Liberal Judicial Activism—March 22

by Ed Whelan

1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Gone Tweeting

by Ed Whelan

I’ll be doing little if any live blogging during Judge Gorsuch’s confirmation testimony, as Twitter, for all its faults, seems a vehicle better suited for instant responses.

My Twitter handle is @EdWhelanEPPC. I also invite you to consult my repository of commentary on the Gorsuch nomination, collected on this single page (to enable ease of searching for cases or topics).

Fellow Students Refute Student’s Claim of Sexist Gorsuch Comments

by Ed Whelan

NPR reported yesterday that Jennifer Sisk, a “former law student of Judge Neil Gorsuch, … alleges that that in a course she took from Gorsuch at the University of Colorado Law School last year, the judge told his class that employers, specifically law firms, should ask women seeking jobs about their plans for having children and implied that women manipulate companies starting in the interview stage to extract maternity benefits.”

But a slew of students who took the same ethics course from Gorsuch—some in the same class as Sisk—are powerfully refuting her claim. From their accounts, it seems quite clear that Sisk (who has Democratic ties) was misunderstanding Gorsuch’s devil’s-advocate posturing of hypotheticals.

In a letter to the Senate Judiciary Committee, Baker Arena, a student in the same class as Sisk and a self-described “liberal feminist Democrat,” explains:

In the Legal Ethics class I took from Judge Gorsuch, the textbook we used contained numerous hypothetical ethical dilemmas that attorneys could potentially face in their practice. Judge Gorsuch would use these dilemmas in the textbook in his lectures to illustrate the fact that there are few black and white solutions to the ethical issues attorneys face daily. Adept at challenging the views of students (and sometimes frustratingly so), Judge Gorsuch would use the Socratic method and play devils advocate in his lectures as the class debated the appropriate course of action to confront the ethical issues at hand. If a valid point was made in favor of one course of action, he would present counterfactual points to illustrate the compelling arguments in favor of another course of action. Through the constant debate of ethical dilemmas that semester, we left with a greater appreciation of the nuances attorneys must account for in making ethical decisions consistent with our code of professional responsibility.

I was present in the class at issue and sat directly in front of the accusing student. I recall the hypothetical ethical dilemma discussed in the lecture that day. In that hypothetical ethical dilemma, a female law student, suffering financial hardship, is asked at an interview if she planned on having children and using the firms maternity leave policies. The female student in the hypothetical was planning on having children but nervous to tell the potential employer, for fear she might not get the position. Judge Gorsuch began to lead the class in debate as to what the appropriate course of action should be for the female law student. Judge Gorsuch made compelling points about the numerous issues and subtle discrimination women face in the workplace that many men are oblivious to. In fact, as a man, I had never really considered the extent of pregnancy related discrimination that women face in the workplace until this very class. True to form (and the Socratic teaching style), Judge Gorsuch also presented counterarguments presenting the hardships employers face due to paid maternity leave policies, which I, as a liberal feminist Democrat, as well as the majority of my colleagues rejected.

During Judge Gorsuch’s presentation of such counterarguments, I do not recall him accusing women of taking advantage of paid maternity leave policies, much less espousing such accusations as his personal beliefs. In class and in our conversations outside of class, Judge Gorsuch was always extremely respectful, inclusive, tolerant and open-minded. Additionally, Judge Gorsuch’s never shared his personal views on legal or ethical matters in class and was somewhat of an enigma. Had he made the statements he is accused of making, I would have surely noticed as they would be out of his character and had he said such things, I potentially would have even said something to him concerning these statements. That is not the Judge Gorsuch I know.

Ruthie Goff, who took Judge Gorsuch’s legal ethics class in 2015, writes (link to come):

I purposefully took Ethics with [Judge Gorsuch], because I wanted to be pushed and challenged on the difficult questions I would face as a woman entering the legal community. That’s exactly what his class did. Judge Gorsuch asked tough and sometimes uncomfortable questions, and I appreciated every one of them.…

One such scenario asked us to consider whether or not an employer can ethically ask a female applicant if she plans to have a family soon. At first, I thought absolutely not because that’s not fair nor can that be ethical. The discussion proceeded much in that way until Judge Gorsuch finally revealed employers are not prohibited from asking that question but only from making the final decision based on that answer. That’s the rule and the law. As much as I disagreed, I understood why the Judge pushed us so hard. The point was to get us to understand that the law will challenge us to resolve difficult issues in ways that we may not agree with, but in a way we have a legal and ethical duty to do so. During this discussion, I never felt as though he was expressing his personal belief regarding the scenario but was doing his job in remaining neutral and guiding us to an understanding of how we must sometimes divest ourselves of personal beliefs in order to apply the rules of ethics and the rule of law.”

Will Hauptman, who was also in the same legal ethics class as Sisk, has also written to the Committee to “refute the … veracity” of Sisk’s claim:

Although Judge Gorsuch did discuss some of the topics mentioned in [Sisk’s] letter, he did not do so in the manner described. The judge frequently asked us to consider the various challenges we would face as new attorneys. Among those challenges were balancing our desire to perform public service with our need to pay off student loan debt, and the tension between building a career in a time-intensive profession and starting a family and raising children—especially for women. The judge was very matter-of-fact in that we would face difficult decisions; he himself recalled working late nights when he had a young child with whom he wished to share more time. The seriousness with which the judge asked us to consider these realities reflected his desire to make us aware of them, not any animus against a career or group. And despite the soberness that these topics sometimes imparted on the class, our conversations were always respectful and cordial.

It is clear that my classmate and I have a different account of what happened in class. But had Judge Gorsuch truly made the statements described in the letter, I would remember—the statements would have greatly upset me. And I would not be writing you in support of the judge if I felt he would not treat all people with equal dignity.

Jordan Henry, a female student who took Judge Gorsuch’s ethics class in the fall of 2016 (one semester after Sisk), tells the Committee that Sisk’s allegations “in no way reflect my experience with Judge Gorsuch as a professor and a mentor.” In what seems like a discussion of the same textbook hypothetical, Henry writes:

I recall a day in class that was devoted to diversity and some of the issues that face women and others in the profession. The textbook noted that there is a lot of attrition among women lawyers. Judge Gorsuch encouraged discussion on this point and asked students to share their experiences. I shared an experience where I was asked about family planning in a job interview and the overriding concern seemed to be whether I would need maternity leave. Judge Gorsuch thanked me for sharing my experience and used it to demonstrate that gender inequality in the profession was not just theoretical, but something that may occur to the classmate sitting next to us. He prepared us to confront these issues when they arise.

Catherine Holgrewe, who took Judge Gorsuch’s ethics class, has issued this statement (link to come):

Judge Gorsuch was an exemplary professor and treated every student with absolute respect. He took an active interest in our educational and professional success. Judge Gorsuch always made time in his busy schedule to further discuss class materials and offer professional advice and support. I have never heard Judge Gorsuch ever speak disrespectfully to or about anyone. As a former student, I am a witness to the respect that he showed towards his female students and fellow professors at Colorado Law. The supposed remarks he made in his 2016 Legal Ethics class are completely out of character and I find very hard to believe are accurately relayed. 

Nathan Davis, another student in Sisk’s class and “a life-long Democrat,” attests (link to come):

I have no recollection of Judge Gorsuch acting in the manner described in the letter, nor do I remember Judge Gorsuch making any insensitive or chauvinistic remarks at any point during the semester. I was fully aware that my professor was a federal judge and am certain that I would recall such outlandish behavior. Nothing I witnessed at any point gives me any reason to question Judge Gorsuch’s moral fitness to serve on the Supreme Court. 

Kate Waller, who took classes in both legal ethics and antitrust from Judge Gorsuch, states (link to come):

[Judge Gorsuch] never demonstrated anything but the utmost respect and integrity for all students and viewpoints. Judge Gorsuch believed in unbiased, well-reasoned arguments, and never appealed to emotions or politics.

While I was not in the class during which the alleged incident occurred, I can unequivocally say that I never witnessed him make any discriminatory statements about women or other minorities, nor demean or belittle anyone. He expected his students to appeal to logic and he demonstrated the same levelheaded, apolitical focus on reason over emotion.

Glen Matthews writes (link to come) of Judge Gorsuch’s ethics course:

Every week Judge Gorsuch did what was expected from him in the Ethics class he taught at the University of Colorado School of Law. I was a student in his class my final semester of law school. During each class, he posed provocative legal ethical questions and hypotheticals to his class. The class at issue was no different in that we explored difficult issues and topics that affect nearly all parents in the legal profession; specifically, how will the obligations of being an attorney impact my ability to effectively parent? Additionally, we discussed the ethical implications, if any, of applicants applying for jobs while knowing they were soon planning to start or expand their families.

The tone and tenor of that discussion seemed similar to ethical discussions we had about disclosing a client’s secrets after their death, or how the rising cost of a legal education creates a disincentive to enter public service. The point of this class was to explore difficult ethical questions—questions with no easy answers. Judge Gorsuch’s comments in this instance were in keeping with the dilemmas posed, which were admittedly difficult, and were not inappropriate or demonstrating bias. 

This Day in Liberal Judicial Activism—March 21

by Ed Whelan

2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

2012—By a vote of five to four, the Supreme Court rules in Lafler v. Cooper that a habeas petitioner who received a full and fair trial may nonetheless pursue a claim that his attorney’s allegedly incompetent advice regarding a plea-bargaining offer deprived him of his (supposed) Sixth Amendment right to effective assistance of counsel. Never mind (among other things) that assurance of a fair trial is what the right to effective assistance of counsel had been thought to protect and that the petitioner, having received a fair trial, therefore did not suffer any constitutional injury.

The majority’s “squeamishness in fashioning a remedy, and the incoherence of what it comes up with,” argues Justice Scalia in dissent, signal “its realization, deep down, that there  is no real constitutional violation here anyway.”

2014—After encouraging plaintiffs, a same-sex couple, to recast their challenge to state adoption laws as a challenge to state marriage laws, federal district judge Bernard A. Friedman rules (in DeBoer v. Snyder) that the Michigan constitutional amendment that defines marriage as the union of a man and a woman is not “rationally related to any conceivable legitimate governmental interest.” Despite the fact that the Supreme Court, in the preceding month, had intervened to block a similar ruling against another state’s marriage laws from taking effect during the appellate process, Friedman refuses even to stay his own ruling pending appeal. (The Sixth Circuit, one day later, will stay Friedman’s ruling.) 

Property Rights and the Supreme Court

by Roger Clegg

After Judge Gorsuch has answered all the inevitable questions about the right to an abortion and the right to assisted suicide, maybe just for fun he could be asked about some rights that are actually in the Constitution, like the takings clause and the contracts clause, for example. George Leef has some thoughts on them here and here.