This Day in Liberal Judicial Activism—January 21

by Ed Whelan

2014—Arch-activist Stephen Reinhardt sets the stage for the judicial invalidation of state marriage laws throughout the Ninth Circuit. Writing for a liberal panel, Reinhardt rules in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Reinhardt construes the Supreme Court’s recent decision in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles.

Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.

In fact, the Windsor majority’s reasoning was directed at the specifics of the Defense of Marriage Act, so it was unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.

This Day in Liberal Judicial Activism—January 19

by Ed Whelan

1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution.

1989—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death.

In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”

This Day in Liberal Judicial Activism—January 17

by Ed Whelan

2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler. But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction.


2014—Retired Sixth Circuit judge Boyce F. Martin Jr.’s career of zany lawlessness ends in rank public disgrace, as the Judicial Conference of the United States denies his request to keep confidential the results of a Judicial Council investigation into up to $138,500 of “questionable travel reimbursement expenses.”


By suddenly retiring in May 2013, Martin succeeded in obtaining a dismissal of the misconduct proceedings against him. But the Judicial Council decided that the public interest required disclosure of the charges against Martin.


Further, in an action that one federal judicial expert called “stunning,” the Judicial Council referred the matter to the Public Integrity Section of the Department of Justice for possible criminal prosecution of Martin.


2014—The judicial butchering of the Constitution continues. In Kosilek v. Spencer, a divided panel of the First Circuit affirms a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name has been changed to Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”


Eleven months later, the en banc First Circuit will overturn the panel ruling by a 3-2 vote.

This Day in Liberal Judicial Activism—January 16

by Ed Whelan

2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake.


When various religious groups sponsored an advertising campaign offering “healing for homosexuals,” the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.

In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

Trump’s Justice Department Begins to Take Shape

by Jonathan H. Adler

Barring some extraordinary development, Alabama Senator Jeff Sessions will be the next Attorney General of the United States. What will the Justice Department look like under Sessions? Based upon this reporting by David Lat at Above the Law, the Department will be led by a team of smart, principled, experienced attorneys.

For starters, it’s been widely reported that Maryland U.S. Attorney Rod Rosenstein will be nominated to be Sessions’ number two: Deputy Attorney General. As I blogged here, Rosenstein would be a fabulous choice.

For Associate Attorney General, Lat reports the leading candidate is Rachel Brand, former head of DOJ’s Office of Legal Policy. This is another inspired choice.

For Solicitor General, Lat’s story is consistent with my reporting that the leading candidates are NY litigator George Conway and former Reagan Administration DOJ official Charles “Chuck” Cooper

Lat further reports that the leading contender to head the Office of Legal Counsel is Steven Engel, who served as the Deputy AAG for that office in the second half of the Bush Administration.

Finally, Lat reports on two individuals who had been rumored to be in the running for SG: Jones Day attorneys Noel Francisco and Greg Katsas. Writes Lat, Francisco is likely to be the Principal Deputy SG and Katsas is expected to be Deputy White House Counsel.

Whatever one thinks of Trump’s other appointments, this would be a very strong legal team and one that should instill confidence. Let’s hope that Lat’s reporting is correct (and that the President-elect does not change his mind).


This Day in Liberal Judicial Activism—January 14

by Ed Whelan

1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds. 

Austin Events

by Ed Whelan

I will visit the capital of Texas next week for two speaking engagements.

On Wednesday, January 18, I will discuss “What Trump Means for the Supreme Court” at a lunchtime event sponsored by the Austin lawyers chapter of the Federalist Society. CLE credit is available. More info here.

On Thursday, January 19, law professor Sanford Levinson and I will discuss/debate “President Trump’s Supreme Court Nominations” at a lunchtime event sponsored by the University of Texas law school’s chapter of the Federalist Society. The event will take place in TNH 2.140 (that’s perhaps the strangest room designation I’ve seen) from 11:45 to 1:00.

(I had initially feared that it would be difficult to catch a flight back to D.C. on Inaugural Eve, but I should have realized that Austin is probably the one city in Texas that is least likely, on a per capita basis, to have ardent Trump supporters.)

Cruz and Kirsanow Correct the Record

by Carrie Severino

Democratic Senators were unable to get a foothold against Sessions yesterday, yet they seem to think that they can make something out of a voter fraud case that Sessions prosecuted over thirty years ago. The facts, once again, demonstrate Sessions’s integrity and overwhelming qualifications for the position of Attorney General.

Peter Kirsanow, member of the US Commission on Civil Rights, stated that “if [Sessions] had failed to prosecute the Perry County case, that would have been an extraordinary dereliction of duty.” He also cited Craig Donsanto, former head of the public integrity unit of the DOJ who told Sessions to go forward with this, stating that experts and other contemporary witnesses believed that “this was a classic case of voter nullification.”

Senator Cruz also called out the left’s misrepresentation of the Perry case. He asked David Cole, National Legal Director of the ACLU, “why did you omit the fact that the complaint came from African American citizens, from elected African American incumbent politicians, and the indictment came from a grand jury that was a majority African American? Why did you omit those facts?”

Cole responded: “I don’t think I intentionally omitted those facts, Senator Cruz. What I did was to express our concerns about several aspects of that case.” He all but ceded to Senator Cruz’s admonition, but he proceeded to mischaracterize the record, citing only limited and selective facts. Senator Cruz quickly seized upon this, stating “any law student or any litigant who presented such a one-sided picture of that facts, conveniently omitting every single fact that is to the contrary, would not be treated as a credible witness and would not be treated, as you describe in your testimony, as strictly nonpartisan.”

The facts of this case, and the obvious problem therein, are quite simple. As Kirsanow explained, “[y]ou had two separate factions of Black Democrats in Perry County who were vying for seats. One faction went to the US attorney’s office and said ‘wait a minute, we believe that there is rampant voter fraud going on here.’” It had appeared that voters were encouraged to vote via absentee ballots, and that these votes were either changed or forged by members one of the two factions.

Here is an image of one of the ballots from that case:

The image includes text from a deposition of one witness who stated that this was her ballot and that she “didn’t mark anything out.” The witness was asked to verify the obvious fact that there were names marked out on this ballot, and she verified that she had not marked them out, and that she had not authorized anyone else to do so. Anybody can easily see that this absentee ballot had been tampered with. Democratic senators who are trying to besmirch Sen. Sessions’s prosecuting this case are fighting against their own cause. Sen. Sessions brought this case in 1985, during his days as US Attorney of Western Alabama, in order to protect the right of those Black Democrats in Perry County to vote for the person of their choice. Based on the evidence, Sessions prosecuted three people who he believed had changed the votes of their neighbors’ absentee ballots.

The above ballot is not one of a kind. “If you look at the FBI’s affidavit related to this they found 75 forged signatures on absentee ballots” said Kirsanow. “There were multiple counts where there were individuals, who were part of, or candidates, who were taking absentee ballots, changing them, altering them, or filling them out on behalf of individuals, and then giving them to the elections board.” In fact, one person had voted for their cousin, but their vote was changed. Three people were indicted for various counts surrounding a voting fraud scheme. However,  most of the witnesses changed their testimony under pressure. As a result many counts were dismissed during trial, and the jury acquitted defendants of the remainder.

The son of one of the defendants in the case, Albert Turner Jr., has even come out in favor of Senator Sessions, stating:

“My differences in policy and ideology with him do not translate to personal malice. He is not a racist. As I have said before, at no time then or now has Jeff Sessions said anything derogatory about my family. He was a prosecutor at the Federal level with a job to do.  He was presented with evidence by a local District Attorney that he relied on, and his office presented the case.  That’s what a prosecutor does.  I believe him when he says that he was simply doing his job.”

Charged with ensuring “that the laws be faithfully executed,” US Attorneys work to enforce federal laws throughout the country. As Attorney General, Sessions will do just that. The facts of the Perry County case fully support the conclusion evident from the hearings that Sessions will faithfully execute the law with integrity and equality.

As Kirsanow stated at the conclusion of his remarks today, “the facts of the case establish that, had a prosecutor not taken this and pursued this, there would have been some serious questions about his integrity.” Bravo, Senator Sessions.

This Day in Liberal Judicial Activism—January 12

by Ed Whelan

1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no.

Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.”

New York Times Is Beyond Parody and Beneath Contempt

by Ed Whelan

I have very low expectations that the New York Times will correct the errors it makes that reflect and reinforce its ideological biases, but somehow the New York Times manages to sink even lower than I thought possible. Here is a case study in its irredeemably irresponsible—indeed, flagrantly know-nothing—smugness:

1. In an article in the year-end issue of the New York Times Magazine, Emily Bazelon smeared Justice Scalia for his supposed views on science. I spelled out in posts how Bazelon got just about everything wrong—citing a report for a proposition it rejects, mischaracterizing the reasoning in a Scalia dissent, conflating social science with the hard sciences, and confusing intellectual humility with disrespect for science. But if you’re disinclined to read through my posts or to take my word for it, I invite you to read law professor and former Scalia clerk (and self-described leftist) Ian Samuel’s absolutely devastating reply to Bazelon (which I excerpted here) on her culminating claim. Samuel concludes:

So, no, Justice Scalia was not wary of science. In fact, the cautious spirit he displayed in Myriad Genetics is in the best tradition of the scientific method.

2. A responsible reporter, on discovering how badly she had screwed up, would have worked hard to make amends—making sure, for example, that corrections were made to the online version of the article and were highlighted in a subsequent issue of the magazine. A responsible reporter would also have encouraged the magazine to publish letters pointing out her errors. (Any such steps, to be sure, would have been inadequate, for the article was beyond repair and should never have been published.)

Instead, Bazelon used a Facebook post to respond to a series of Samuel’s tweets (his fuller reply was to her post) and addressed part of one of my points in a three-sentence P.S. that didn’t even link to my posts. (Never trust someone who purports to respond to an argument but won’t link to it.) No corrections were ever made to the magazine article.

3. On December 22, in order to give the NYT Magazine the opportunity to act responsibly, I sent this letter to it for publication:

Dear Editor:

In her reflection on Justice Antonin Scalia (“The Lives They Lived,” Dec. 21), Emily Bazelon depicts Scalia as hostile to science. But she badly distorts all of her evidence.

Bazelon claims, for example, that Scalia dissented from the Supreme Court’s 1987 ruling striking down a Louisiana law on teaching “creation science” because he “saw the case as a question about certainty.” What Scalia actually said was that the limited evidence in the record of the case at the time did not support the majority’s conclusion that the law required the teaching of religious doctrine. He made clear that if the state proved unable to show scientific evidence against evolution—if “the scheme they have established will amount to no more than a presentation of the Book of Genesis”—then he would agree that the law is unconstitutional.

Bazelon also claims that Scalia “contradicted scientific consensus when he declared it ‘very likely’ that the death penalty deters murder.” But beyond her unscientific conflation of hard science and social science, she flatly misrepresents the National Research Council report that she cites for that supposed consensus. That report concludes that “research to date on the effect of capital punishment on homicide is not informative” on the deterrence question. In short, it denies the existence of any consensus.

Scalia was modest about his own scientific knowledge and doubtful of the mastery that his judicial colleagues and other non-scientists claimed to have. That displayed a respect for science, not a hostility to, or skepticism of, it.


Ed Whelan

P.S. disclosure: I am a former law clerk to Justice Scalia.

4. It’s bad enough, but not surprising to me, that the NYT Magazine did not publish my letter or a letter making similar points. But—hold on to your seats!—take a look at the single letter on Bazelon’s piece that it did publish:

Based on my reading of Emily Bazelon’s portrait of the late Justice Antonin Scalia of the Supreme Court, the world — and definitely the United States — would be a better place had Scalia reigned supreme as a court jester at the Vatican instead of as a court justice in Washington. David M. Lieberfarb, Edison, N.J.

That’s right: The one letter it chose to publish not only uncritically accepts Bazelon’s “portrait” but also exhibits rank anti-Catholic bigotry. (Yes, of the same sort that the Know-Nothings of 150 years ago displayed.) As Samuel has written to me:

Utterly bizarre. That they would publish that letter at all is bad enough, but given the choices it’s unconscionable. 


It would be a good thing to have a “paper of record” (or, better yet, multiple papers) that were deserving of trust. But the New York Times has long since abandoned any claim to be trusted. To be clear, it has various reporters whom I like and respect. But it has a Stalinist culture of ideological conformity that prevents it from acknowledging and correcting errors that suit its ideological predilections.

For that reason, I will celebrate the day—perhaps not too far into the future?—that the New York Times goes out of business.

And to do my tiny bit to help expedite that event, I will highlight that there is no reason for anyone to pay a penny for online access to the New York Times. Here’s an article that presents different ways to get around NYT’s paywall. “Incognito mode”—which on Chrome simply involves clicking in the upper right to open a “New incognito window”—is very simple. (And, no, I don’t see anything remotely immoral in using lawful and non-invasive means to circumvent NYT’s efforts to restrict access to materials that it disseminates on the Internet.) 

Ten Takeaways from the Sessions Hearings

by Carrie Severino

Today’s hearings were a home run for Senator Sessions, as Byron York has notedThe rest of the confirmation process should be smooth sailing. Here are some of the main themes and moments to remember from his testimony:

1. Respect for Rule of Law

Sessions returned repeatedly to his main theme of respect for the rule of law. On several occasions other senators asked him about his position on various issues, from enforcement of the Voting Rights Act, to the FACE Act, to drug laws, to immigration. Across the board, whether it was a law he loved or hated, he pledged to enforce the law as passed by our elected representatives. That’s a big contrast with the Obama administration’s penchant for failing to enforce drug and immigration laws they disagreed with and attacking laws like DOMA in the courts.

2. A Constitutional Check on the Executive

A complementary focus was the Attorney General’s role in ensuring that the executive is abiding by the Constitution, including resigning rather than taking unlawful or unconstitutional actions.

“I think an Attorney General should first work with the president, hopefully that Attorney General would have the confidence of the President, and avoid situations that would be unacceptable. I do believe that if an Attorney General is asked to do something that is plainly unlawful, he cannot participate in that, he or she, and that person would have to resign ultimately before agreeing to execute a policy that the Attorney General believes would be unlawful or unconstitutional.”

3. Refuting “​Damnably False Charges”​

In his opening statement Sessions gave a blanket disavowal of the slurs against him arising out of his 1986 hearings as “damnably false charges.” It’s possible that this early refutation of those allegations defused the issue and helped keep the hearings mostly focused on the issues rather than mud slinging.  

4. Raising the Ethical Standards

Sessions volunteered that he would recuse himself from investigations into Hillary Clinton’s email and Clinton Foundation scandals because he had commented on those charges on the campaign trail when stumping for Trump. That was a smart move that was not only ethically sound but defused likely Democrat complaints and provided a sharp contrast with AG Loretta Lynch’s own impropriety in having private conversations with former President Clinton while his wife was under investigation.

5. Straightforward Answers

On numerous occasions Sessions took the wind out of Democrats’ sails by giving very straightforward answers rather than trying to finesse his answers. Take this exchange with Senator Feinstein: 

Sen. Feinstein: “You have referred to Roe v. Wade as ‘One of the worst, colossally erroneous Supreme Court decisions of all time.’ Is that still your view?”
Sen. Sessions: “It is. I believe it violated the constitution and really attempted to set policy and not follow law.”

Or this I-can’t-believe-Leahy-just-went-there moment:
Sen. Leahy: “Is grabbing a woman by her genitals without consent, is that sexual assault?”
Sen. Sessions: “Yes.”

The simplest answer is often also the right one.

6. Batting Down Straw Men

Senator Sessions handily dispatched several straw men that had been deployed against him.  For example, he said he didn’t support a flat ban on Muslim immigration. He also pledged to respect the Roe v. Wade and Obergefell decisions – and that after noting that he disagreed with them legally.

7. A Southern Gentleman

Senator Sessions was unflappably calm and gentlemanly throughout. He was patient with longwinded questioners as well as the periodic protesters being evicted. I was impressed with an exchange about the holding of the Lily Ledbetter case in which he gallantly conceded to Sen. Hirono that his recollection of the facts of the case could be incorrect and she could be right. (As it happens she had the facts of the case exactly wrong.)

8. Racism from the Peanut Gallery

The most racially-charged statement of the day didn’t come from the witness or any of the senators, but from a twitter-happy MTV reporter who quickly learned that it doesn’t pay to make racist comments in service of your argument that someone is a racist.  The reporter snidely tweeted that Sessions should “kindly return this Asian baby to the Toys ‘R’ Us you stole her from.”  (His four adorable granddaughters – who were shockingly well behaved sitting through the long opening statements – are part Asian.) Jake Tapper pretty well summed it up: “Disgusting tweet. The little girl is his granddaughter. Delete your account and find some humanity.”

9. Senator Franken is not a Lawyer

Senator Franken won the understatement of the year award when he prefaced a question with “I’m not a lawyer but…” He went on to question Sessions’s involvement in several cases listed on his Senate questionnaire. Sessions attempted to explain that his name was first on the briefs and his signature in the docket and that he was therefore very much responsible for those cases, but Franken continued to protest. “I don’t know some of the parlance, might have a special meaning in legal parlance, but to me, as a layman, it sounds to me like filed means I led the case, or I supervised the case. It doesn’t mean that my name was on it.” Actually, “I filed a case” does mean that it was filed with your name on it, as Sessions was well aware. I guess that’s why he, and not Franken, is the one who’s up for the AG spot.

10. The Reduce Superfluous Awards Act of 2017

You knew it was over when… This happened for me when Senator Blumenthal pressed Sessions to disavow basically any group who has ever given him an award lest he be deemed to agree with all their positions.  First, you started to see the veteran prosecutor come out in him when he responded to insinuations that he may have received an award at some point from the KKK with: “Well, I wouldn’t receive it from Henry Hayes, I’ll tell you that. He no longer exists.” (Hayes was the Klansman and murderer for whom Sessions helped secure the death penalty.) In case you were wondering, Sessions also stated that he wouldn’t receive an award from the Klan.


This Day in Liberal Judicial Activism—January 11

by Ed Whelan

1954—President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice. Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition. But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

2016—When is discrimination on the basis of sex just fine? When it operates against men to produce welcome results. Such is the lesson of the Fourth Circuit’s ruling (in Bauer v. Lynch) against an FBI trainee, Jay J. Bauer, who complained that the FBI discriminated against him on the basis of sex.

Bauer failed the FBI’s physical-fitness test (PFT) when he fell one push-up short of the minimum of 30 required for men. For women, the push-up minimum was only 14 (and the other thresholds were also easier to meet). So Bauer sued on the ground that the differential standards for men and women violated Title VII’s basic ban on discrimination on the basis of sex as well as its specific ban on the use, on the basis of sex, of “different cutoff scores for … employment related tests.” The federal district court granted summary judgment in his favor.

But the Fourth Circuit panel of Obama and Clinton appointees somehow sees things very differently. The Fourth Circuit accepts the Obama administration’s argument that the “PFT’s gender-normed standards actually require the same level of fitness for all Trainees” because “equally fit men and women possess innate physiological differences that lead to different performance outcomes.” Therefore, the PFT standards “do not treat the sexes differently.”

The Left seems to invoke “innate physiological differences” between the sexes only when doing so favors women. The “gender-normed standards,” by their very nature, “treat the sexes differently.” That is their very purpose. Further, they impose a differential “cutoff” on the basis of sex that the text of Title VII specifically forbids.

Confirmation Pace Reality Check

by Carrie Severino

Democrats are pushing a narrative that Republicans are rushing through the confirmation hearings in order to avoid bad press. Senate Minority Leader Chuck Schumer recently claimed that “Rather than ensuring that nominees are thoroughly vetted and will remove themselves from conflicts of interests, Senate Republicans are trying to ram them through as quickly as possible.”

These confirmation hearings are not moving as quickly as possible. Obama’s first cabinet has them handily beat.

The Senate held hearings for nine of President Obama’s cabinet picks in one week. The other three were held on the Friday and Monday surrounding that week.

There are only eight hearings scheduled for this week for the Trump’s cabinet, one is scheduled for next week, and many have not yet been scheduled.

President Obama’s confirmation hearing schedule is as good a model as any for “as quickly as possible”:

Jan 8, Hilda Solis, Secretary of Labor

Jan 13, Hillary Clinton, Secretary of State
Jan 13, Shaun Donovan, Secretary of Housing and Urban Development
Jan 13, Steven Chu, Secretary of Energy
Jan 13, Arne Duncan, Secretary of Education
Jan 14, Eric Shinseki, Secretary of Veteran Affairs
Jan 14, Tom Vilsack, Secretary of Agriculture
Jan 15, Ken Salazar, Secretary of Interior
Jan 15, Janet Nepolitano, Secretary of Homeland Security
Jan 16, Eric Holder, Attorney General

Jan 21, Tim Geitner, Secretary of the Treasury
Jan 21, Ray LaHood, Secretary of Transportation

Of these nominees, six were confirmed on January 20 by voice vote. Nine had been confirmed by the end of the first week and all but two had been confirmed by the end of January. Eric Holder was confirmed as Attorney General on February 2, less than two weeks into Obama’s presidency. Hilda Solis, Secretary of Labor, was the final confirmation on February 24. President-Elect Trump’s cabinet deserves the same collegial treatment Senate Republicans gave to President Obama.

Sessions Confirmation Hearing Today

by Carrie Severino

Today, the senate judiciary committee is holding the first of many confirmation hearings that will occur over the coming weeks. Senator Jeff Sessions, Attorney General designate, is in the hot-seat. I am live tweeting the event at @JCNSeverino with commentary and fact checks. Live coverage can be viewed at

It has been an active morning so far.  The biggest theme that has run throughout the hearings is Sessions’s pledge to enforce laws as written by our elected representatives regardless of whether he thinks they are good policy. Many of his colleagues, including some from across the aisle, remarked about their good working relationship in Congress, and it is easy to see why so many people regard him as a gentleman. The tone of the hearing has been one of civility and courtesy due in no small part to Sessions’s demeanor and candor. His remarks have been responsive and insightful even when addressing questions that were little more than attacks on his character and reputation.

He has also knocked down various straw-man arguments that his Senate colleagues have put forward.

He pledged to stand up to the president and resign if the president insisted that he support an unconstitutional position. He stated that the president could not and should not block all Muslims from immigrating on the basis of their religion.  And he said that he would recuse himself from investigations of Hillary Clinton that he had commented on during the presidential campaign.

The hearing is proceeding smoothly despite various interruptions by protesters.

Re: Ongoing Judicial Coup in Florida?

by Ed Whelan

Last week I spelled out how retired Florida supreme court justice James E.C. Perry’s continued participation in decisions of his court in the place of his lawfully appointed successor Alan Lawson appears to be in plain violation of Florida law. In response to an email inquiry, Craig Waters of the Florida supreme court’s public information office has provided me this explanation (which I quote in full):

The Court’s longstanding practice for many decades has been that retiring Justices remain in senior status to complete their unfinished work after retirement unless they cannot do so due to death or a conflict of interest. Conflicts of interest can include the fact that they have become a judge on another court or have reentered the practice of law and thus cannot simultaneously work as both a senior judge and a private attorney. At present Justice Perry is not a judge on another court and has not gone to work in a law firm.

There are serious workload issues involved in processing cases because the work is cumulative, much like studies in a law-school class. For example, you would not place a law student into a class on a complex aspect of the death penalty after that class is more than half complete. Doing so would have unfair results – slowing down the entire class so that the one student could get up to speed, or unfairly handicapping the one student who has not had the benefit of the first half of the class. 

By the same token, asking a new Justice to step in and get up to speed on work in individual cases that may be more than half completed can greatly slow decision-making in those cases – a result that would impose delay and additional expense on the parties to those cases, some of which are facing the death penalty. The Supreme Court always has taken the approach that avoids unnecessary delay and expense.

I find this explanation woefully deficient:

1. The proposition that the court has employed this “practice for many decades” does not speak meaningfully to the legality of the practice. One would expect that the court might have used those decades to muster a legal defense of the practice. But Mr. Waters’s statement does not provide one. I also specifically asked Mr. Waters: “If you are aware of any legal support for your court’s actions beyond anything contained in your statement, would you please provide it to me?” I received nothing additional.

To briefly restate the elementary points in my initial post: Justice Perry retired effective December 30. Justice Lawson filled Perry’s seat on December 31. So retired Justice Perry may not, without some further authorization, act as a justice in any matter.

Perry is eligible, as a retired justice, to be assigned “to temporary duty in any court for which the judge is qualified,” and chief justice Labarga has issued a blanket order that makes him eligible for such service.

But under the Florida constitution, the Florida supreme court has seven justices, and all seven seats are filled. Further, even if there were a recusal in a particular case, the Florida constitution allows “judges assigned to temporary duty” to fill in on the supreme court only when recusals for cause would deprive the court of its quorum of five justices—in other words, only if three of the current seven justices recused for cause. (See fuller explanation in my previous post.)

So, I ask again, how is it lawful for Perry to be displacing Lawson on court decisions issued after Perry’s retirement?

2. Mr. Waters’s “workload” efficiency arguments also don’t make sense.

To be sure, I assume that it is routine for supreme courts to go ahead and decide cases already well into the pipeline—those in which oral argument and conference have taken place—without the participation of a newly appointed justice. The Supreme Court did just that when Justice Alito replaced Justice O’Connor mid-term in 2006. Thus, decisions argued before Alito took his seat but decided while he was on the Court state (here’s an example) that Alito “took no part in the consideration or decision” of the case.

But it’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases. This elementary distinction seems to have escaped the Florida supreme court.

In other words, in any case in which Lawson’s participation wouldn’t be dispositive (and that’s the bulk of them on a court that has four remaining liberals among its seven justices), the efficiency gains that Waters touts would be achieved by simply deciding the case without him.

To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable. And any supposed efficiency gains would be offset by the uncertainty resulting from a ruling in which the decisive vote is cast by someone who has taken part illegally.


If the Florida supreme court can’t offer a compelling legal explanation for its practice of allowing a retired justice to continue to decide cases after his retirement, it ought to terminate that practice pronto. 

Feinstein’s Weird Abortion Remark

by Ed Whelan

A law professor who was watching the confirmation hearing for Attorney General-designee Jeff Sessions contacted me after he was stunned to hear Democratic senator Dianne Feinstein claim to have sentenced women to prison for abortion in the 1960s. C-Span’s transcript (underlining added; otherwise unchanged) indeed quotes Feinstein as making such a claim:

okay. as you know, the constitution protects woman’s right to access to health care. i’m old enough to remember what it was like before. when i was a student at stanford and there after. and the early 1960s, i actually sentenced women in california convicted of felony abortion to state prison. for a maximum sentences of up to ten years and they still went back to it because the need was so great.

What is Feinstein talking about? She’s never been a lawyer, much less a judge, so I don’t see how she ever would have “actually sentenced” anyone for anything. She apparently was a member of the California Women’s Parole Board in the 1960s, so she might have been involved in deciding whether “women … convicted of felony abortion” should be released early in their prison terms.

Any such women, I’ll note, were surely performing the role of abortionist (as Feinstein’s “they still went back to it because the need was so great” comment would reveal to the very attentive listener). According to this account, no woman obtaining an abortion was ever prosecuted in California (and only two such prosecutions, in 1911 and in 1922, ever occurred in any state).

Perhaps Feinstein somehow misspoke. (It seems unlikely that both the law professor and the C-Span transcriber misheard her.)  If so, she should correct the record.

Judge Danny Boggs to Take Senior Status

by Jonathan H. Adler

Today, Judge Danny J. Boggs of the U.S. Court of Appeals for the Sixth Circuit announced that he will take senior status, effective February 28. (Hat tip: Josh Blackman.) A Reagan nominee, Judge Boggs has served with distinction on the Sixth Circuit since March 1986.  In addition to being a fine judge, Boggs is also a trivia maven. Once referred to as “The Kentucky Quizmaster,” Judge Boggs is infamous for subjecting potential clerks to a trivia quiz and was twice phoned by Who Wants to Be a Millionaire contestants for assistance on the show. Judge Boggs will continue to hear cases as a Senior Circuit Judge.

This Day in Liberal Judicial Activism—January 10

by Ed Whelan

2006—Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.

Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But California governor Jerry Brown will then appoint Liu to the state supreme court.

This Day in Liberal Judicial Activism—January 9

by Ed Whelan

1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion). Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.


This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute. 

JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.” 

This Day in Liberal Judicial Activism—January 8

by Ed Whelan

2010—Solicitor General Elena Kagan personally assigns her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal promptly informs the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will take the lead, and that “we will bring Elena in as needed.” Two months later, with litigation impending, Kagan and Katyal consult on who should attend a White House meeting on what Katyal calls “litigation of singular importance.”

But in connection with (and presumably to facilitate) her nomination to the Supreme Court in May 2010, Kagan will nurture the notion that she had somehow (for utterly inexplicable reasons) “been walled off from Day One” from the litigation over Obamacare, and, after her appointment to the Court, she will decline to recuse herself from deciding cases arising from that initial round of litigation in which she took part. Instead, she will provide the decisive fifth vote in NFIB v. Sebelius (2012) rejecting the constitutional challenge to Obamacare’s individual mandate.