Scheduled Events

by Ed Whelan

I have a busy schedule of engagements this winter and spring. Most relate to Scalia Speaks (the highly acclaimed, and New York Times bestselling, collection of Justice Scalia’s speeches that I’ve co-edited).

I’m posting my current schedule here for two reasons: first, to answer the many inquiries I’m receiving about upcoming Scalia Speaks events; and second, in case you’re interested in arranging an event with me on Scalia Speaks, judicial nominations, or any other topic, to invite you to explore working that into my existing out-of-town trips.

1/26 BYU/Federalist Society

1/30 University of Utah/Federalist Society

2/2 Charlotte/Federalist Society

2/2 Belmont Abbey College

2/5 Capitol Hill Federalist Society (judicial nominations)

2/6 GW law school

2/7 Villanova/Federalist Society

2/7 National Constitution Center, Philadelphia

2/13 Legatus Orange County

2/14 Los Angeles/Federalist Society

2/15 Orange County/Federalist Society

2/16 San Diego/Federalist Society

2/20 Atlanta/Federalist Society

3/7 University of Dallas

3/8 SMU/Federalist Society

3/10 Federalist Society student symposium, Georgetown (booksigning only)

3/20 Vanderbilt/Federalist Society

3/20 Nashville/Federalist Society

3/21 Houston/Federalist Society

3/21 Houston/St. Thomas More Society

3/28 Cincinnati/Federalist Society

3/29 Columbus/Federalist Society

4/5 Akron/Federalist Society

4/5 Case Western/Federalist Society

4/13 Baton Rouge/Federalist Society (judicial nominations)

4/14 New Orleans (American Academy of Appellate Lawyers – judicial nominations)

4/24 Kansas City/Federalist Society

4/25 University of Missouri/Federalist Society

5/4 Supreme Court Historical Society

6/7 Denver/Federalist Society

6/7 Colorado Springs/Mountain States Legal Foundation

Solicitor General’s Perplexing Brief in Abortion Compelled-Speech Case

by Ed Whelan

In National Institute of Family and Life Advocates v. Becerra—which David French calls the “dangerous Supreme Court case nobody is talking about”—the Supreme Court will decide whether two provisions of a recently enacted California law violate the Free Speech rights of pregnancy centers that counsel against abortion.

First, the so-called Licensed Notice provision requires state-licensed medical facilities that provide pregnancy-related services* to disseminate this message to their clients:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

As David puts it:

The [provision] requires pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics.

In other words, California is requiring pro-life professionals — people who’ve dedicated their lives to protecting the unborn by offering pregnant mothers alternatives to abortion — to advertise state-sponsored abortions. California is making this demand even though it has ample opportunity to advertise state services without forcing pro-life citizens to do so. The state can rent billboard space on the very streets where crisis-pregnancy centers are located. It can hand out leaflets on the sidewalk. It can advertise on television and the radio. It can advertise on the Internet or social media. But rather than using its own voice, it is co-opting the voices of its pro-life citizens, forcing them to join its pro-abortion crusade.

Second, under the Unlicensed Notice provision, a facility that is not licensed by the state (and has no licensed medical provider supervising its operations) and that provides pregnancy-related services must post at its entrance, in its client waiting area, and in all of its advertising materials this statement:

This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

This sign must be posted both in facilities that might plausibly be mistaken for medical offices (such as those that offer obstetric ultrasounds) and in those that would not (e.g., “pregnancy options counseling” in a church basement).

The Solicitor General has filed an amicus brief that argues that the Licensed Notice violates the Free Speech rights of pro-life pregnancy centers but that the Unlicensed Notice is okay. I think that the SG’s brief is clearly right on its conclusion on the Licensed Notice. But as David explains in this second piece of his, the brief (pp. 24-31) reaches this conclusion via a path (“heightened scrutiny” rather than strict scrutiny) that would give the government greater power to control “the non-commercial speech of nonprofit advocacy organizations that are in the very business of persuasion.”

Adding to David’s critique of the SG’s brief on the Licensed Notice, I’ll focus here on a similar and arguably worse problem in how the brief addresses the Unlicensed Notice.

On the Unlicensed Notice, the SG’s brief (pp. 13-15) invokes “a more deferential standard” of review that applies “to laws that require providers of commercial services in the marketplace to disclose factual, uncontroversial information about their own services.” (Emphasis added.) Under this “Zauderer standard,” required disclosures that are “uncontroversial” are permissible so long as they are not “unjustified” or “unduly burdensome.”

The SG’s brief (pp. 20-24) rejects a “categorical rule” that the Zauderer standard for speech related to commercial services doesn’t apply “when professionals offer their services without charge.” Such a rule would indeed seem overly broad. But it’s one thing to hold that a provider of commercial services is subject to the Zauderer standard even when that provider (to use the SG’s examples) “offers free samples as a promotion” or “offers free consultations to attract customers.” It’s something very different to maintain that a pregnancy center that provides all of its services for free is still somehow deemed to be providing “commercial services” and can have its speech regulated as “commercial speech.” Yet that is what the SG’s brief oddly does.

To put the point another way: The proposition that the Zauderer standard applies to some providers of free services—that there is, in short, no “categorical rule” to the contrary—does not mean that it applies to all such providers. The SG’s brief recognizes as much in its discussion (pp. 22-23) of NAACP v. Button (1963) and In re Primus (1978), both of which applied strict scrutiny to prohibitions that prevented civil-rights litigation organizations from soliciting pro bono clients. In a strange passage, the SG’s brief, quoting Primus, tries to cabin those two rulings on the ground that the services the organizations provided involved “expressive and associational conduct at the core of the First Amendment’s protective ambit.” But the brief never stops to address why the entirely non-commercial services provided by a pro-life pregnancy center don’t also involve core First Amendment speech.

It’s possible (I haven’t studied the matter closely) that the Unlicensed Notice might be permissible even under a higher standard of scrutiny. The larger danger of the approach taken by the SG’s brief is that it would seem to invite the extraordinary conclusion that all of the speech of pro-life pregnancy centers is commercial speech and therefore easily regulable (subject, in most instances, to only very deferential review) by every state and city in the country.

That is a conclusion that no court has reached. In fact, the Ninth Circuit panel that ruled against the pregnancy centers in this case dismissed this argument in a footnote as “unpersuasive.” It is perplexing to see the United States adopt an argument that such a liberal panel did not even consider worthy of discussion in the body of its opinion.

* In an effort to be succinct, I’ve omitted, both here and in my description of the Unlicensed Notice provision, some additional criteria that are, I think, irrelevant to the points I make in this post. The primary statutory provisions are here and here.

Utah Events on Scalia Speaks

by Ed Whelan

I’ll be at BYU law school this Friday, January 26, and at the University of Utah law school on Tuesday, January 30, for lunchtime events on Scalia Speaks sponsored by the law schools’ Federalist Society chapters. (And, yes, I will use the intervening days to enjoy Utah’s wonderful ski slopes with my son.)

This Day in Liberal Judicial Activism—January 22

by Ed Whelan

1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings. In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion. Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.

1996—Federal district judge Harold Baer rules (in United States v. Bayless) that New York City police officers did not have reasonable suspicion that criminal activity was afoot when they observed a car with a Michigan license plate moving slowly in the pre-dawn hours in a neighborhood known for drug trafficking, saw the car double-park, observed four males cross the street in single file and, without speaking with the driver, deposit duffle bags in the trunk of the car, and saw the men scatter when they noticed that the officers were observing them.

Dismissing this last fact, Baer opines that publicity about the prosecution of a corrupt police officer in that neighborhood eliminated any inference that the men were engaged in evasive conduct. Indeed, “had the men not run when the cops began to stare at them, it would have been unusual.” Finding that the investigatory stop by the police violated the Fourth Amendment, Baer orders suppression of the evidence of the 34 kilograms of cocaine and two kilograms of heroin found in the duffle bags in the trunk.

Amidst the ensuing public outcry over Baer’s ruling—including comments by President Clinton that he might try to get his own appointee to resign—Baer reverses himself two months later and laments the “hyperbole (dicta) in my initial decision [that] regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.”

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.

AG Sessions Resists the Resistance

by Carrie Severino

The Supreme Court agreed yesterday to hear a challenge to the third iteration of the Trump administration’s travel ban. It had been struck down by lower courts—a Hawaii district court and affirming Ninth Circuit—that seemed to place their hostility to the president above the law, which grants the chief executive clear discretion on such matters relating to immigration and national security. Back in February 2017, after the Ninth Circuit struck down the first version of the travel ban, Eric Posner, a liberal critic of both President Trump and his policy, recognized that the courts may be creating a “‘Trump exception’ to settled law on presidential powers,” holding the current president to a different standard from that of his predecessors. He recognized this aberration from the law could come back to bite us.

One year later, it is clear that judicial resistance to this administration is alarmingly broad and almost entirely unmoored from the law. In an editorial this morning, the Wall Street Journal reports that “there have been 19 nationwide injunctions against Administration initiatives ranging from sanctuary cities to new rules on contraceptive coverage. Many of these rulings reject longstanding legal understandings or refer to Mr. Trump’s campaign statements rather than the language of the regulation.”

As a Senator and now as Attorney General, Jeff Sessions has been a fierce advocate for the rule of law and separation of powers, so it was not surprising that he directed his Justice Department to fight this new left-wing legal resistance. His office took the significant step of asking the Supreme Court to bypass the Ninth Circuit and overturn a pervasively political district court opinion that held untenably that Trump lacked authority to end the Deferred Action for Childhood Arrivals program, and the Court’s decision to grant could signal that a majority of the justices are sympathetic to his concerns.

It is highly disconcerting that so many judges have aligned with this new political “resistance,” allowing their personal views about President Trump to overcome their independence and threaten our Constitution’s separation of powers. Attorney General Sessions deserves kudos for recognizing that threat, and for directing an extraordinary team of lawyers to resist the resistance.

This Day in Liberal Judicial Activism—January 20

by Ed Whelan

1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine. To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy.

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.”

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.

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.”

More Events on Scalia Speaks

by Ed Whelan

In case you’re interested: I have other upcoming book events on Scalia Speaks (and/or on Justice Scalia’s legacy) at BYU (Jan. 26), the University of Utah (Jan. 30), Charlotte (Feb. 2), Belmont Abbey College (Feb. 2), Villanova (Feb. 7), the National Constitution Center in Philadelphia (Feb. 7), Orange County (Feb. 13 and 15), Los Angeles (Feb. 14), San Diego (Feb. 16), Atlanta (Feb. 20), SMU (March 8), Georgetown (March 10), Vanderbilt (March 20), Nashville (March 20), Houston (March 21), Cincinnati (March 28), and Columbus (March 29). I will post more detailed information about these events a few days before they occur.

I’d be open to working in more events on my out-of-town trips, so contact me if you’d like to arrange something.

Jacksonville and Tallahassee Events on Scalia Speaks

by Ed Whelan

Next week I will be in Jacksonville and Tallahassee for three events on Scalia Speaks (which, in case you’ve forgotten, is the wonderful New York Times bestselling collection of Justice Scalia’s speeches that I’ve had the privilege of co-editing).

At lunchtime on Tuesday, January 16, I’ll speak to the Jacksonville lawyers chapter of the Federalist Society. Info here.

On Tuesday evening, I’ll speak to the Tallahassee lawyers chapter of the Federalist Society. Info here.

And on Wednesday, January 17, I’ll be Florida State University for a lunchtime event hosted by the law school’s Federalist Society chapter. (I’ll add a link.)

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.

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.”

Judicial Nominations Update

by Carrie Severino

Though 2017 saw a record number of federal circuit court judges confirmed during a President’s first year in office, the number of judicial vacancies nevertheless continues to steadily rise; the total number of current and known future vacancies jumped to 172 over the Christmas recess. And the Democratic minority continues to require cloture votes for every judicial nominee: last week Senate Majority Leader Mitch McConnell filed cloture motions for four district court nominees. The four nominees are expected to receive confirmation votes this week.

Since my last update, the number of nominees awaiting Senate floor votes has dropped from 24 to 12 as a result of 26 judicial nominations being returned to the White House at the end of the Congressional session in December. Nearly all of these nominees are expected to be re-nominated and will require another Senate Judiciary Committee vote to be moved back to the Senate floor but not another hearing.

Here is this week’s full update on federal judicial nominations.

Number of current and known future vacancies: 172

Courts of Appeals: 23

District/Specialty Courts*: 149

Number of pending nominees for current and known future vacancies: 27

Courts of Appeals: 1

District/Specialty Courts: 26

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

Nominees Awaiting Floor Votes: 12

Courts of Appeals: 0

District/Specialty Courts: 12

Nominees Confirmed by the Senate: 19

Supreme Court: 1

Courts of Appeals: 12

District/Specialty Courts: 6

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.

This Day in Liberal Judicial Activism—January 7

by Ed Whelan

2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito. (See here for more.)