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.)​

Ongoing Judicial Coup in Florida?

by Ed Whelan

I’ve recently ridiculed the Left’s extravagant use of “coup” rhetoric, but have just run across a much stronger example of a coup by the Left.

In September, Florida justice James E.C. Perry announced his resignation (pursuant to the state’s mandatory-retirement-age provisions), effective December 30. Florida governor Rick Scott appointed Alan Lawson to replace Perry, effective December 31. The Florida supreme court’s website properly lists Lawson as the court’s seventh justice.

Florida law provides that “[u]pon the resignation … of any judge, all matters pending before that judge shall be heard and determined by the judge’s successor.” So Lawson ought to be replacing Perry in “all matters pending.” But earlier today, in an order concerning an opinion issued in October, Lawson was not listed among the justices participating in the order—and Perry was listed, in his supposed capacity of “Senior Justice.”

To be sure, the Florida constitution (article V, section 2(b)) confers on the chief justice of the supreme court “the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified.” Further, chief justice Labarga, on December 1, issued an order assigning Perry “for statewide judicial service, effective January 1, 2017.” Under that order, Perry can decide cases “as a temporary judge of any court in the State of Florida upon approval by the chief judge of that court.”

But how could Perry displace Lawson on the supreme court in the order issued today?

The Florida constitution (article V, section 3) states: “When recusals for cause would prohibit the court from convening because of the requirements of this section, judges assigned to temporary duty may be substituted for justices.” That same section further provides, “Five justices shall constitute a quorum.”

Thus, if there were otherwise only four justices available to decide today’s order and if the absence of a quorum were attributable to “recusals for cause,” Labarga could approve of Perry’s participation in the matter. But there were six other justices on the matter, so those conditions weren’t met. And even if they were, Lawson, unless he were recused (and there’s no indication of that), would be one of the justices entitled to take part.

The same thing happened—Perry’s participation instead of Lawson’s—in a second order that was issued in the same case today (and that was later withdrawn, evidently because it miscited a statutory section,, for reasons explained here).

These two examples might seem trivial, except that it appears that Labarga intends to have Perry continue to displace Lawson. According to this December 30 article, Perry expects to “remain on the bench for the next month or two as a senior judge to complete rulings on the cases that remain in the court’s pipeline.”

I don’t claim to be expert on Florida judicial procedure, but I don’t see how Perry’s post-retirement participation in pending matters and his purported displacement of Lawson are compatible with the governing state laws.

It probably won’t surprise you to learn that Labarga and Perry are liberals (part of the long-dominant liberal majority on the Florida supreme court) and that Lawson is a conservative.

Whopper Endorsement of AG Pick Jeff Sessions

by Ed Whelan

Albert F. Turner Jr., the son of the couple that then-U.S. Attorney Jeff Sessions prosecuted for voter fraud in the mid-1980s—the matter that has been the focus of the Left’s attack on Sessions—has just issued a statement endorsing Sessions for Attorney General. Here’s his full statement (emphasis added; link to be added when available):

A lot has been said about Senator Jeff Sessions and his record on issues related to race – some of it distorted and unfair.  Some of these statements have included references to matters with which I have a very personal connection.  My family and I have literally been on the front line of the fight for civil rights my whole life.  And while I respect the deeply held positions of other civil rights advocates who oppose Senator Sessions, I believe it is important for me to speak out with regard to Senator Sessions personally.

First, let me be clear: Senator Sessions and I respectfully disagree on some issues.  That won’t change when he is the Attorney General of the United States.  And I expect that there will be times as it is with all politicians when we will legitimately disagree and I will be required by my conscience to speak out.  I look forward to those constructive debates if necessary. However, despite our political differences, the Senator and I share certain Alabama and American values, including a love for our State, its people and our Country.

I have known Senator Sessions for many years, beginning with the voter fraud case in Perry County in which my parents were defendants.  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.

I believe that he is someone with whom I, and others in the civil rights community can work if given the opportunity. I believe that he will listen, as he has in the past, to the concerns of my community.    More than most I am very familiar with him.  I believe he will be fair in his application of the law and the Constitution; as such I support his nomination to be the next Attorney General of the United States.

I encourage the civil rights community to engage in constructive dialogue with Senator Sessions concerning the protection of voting rights for African Americans and other minorities, gun control, senseless killings and strengthening Constitutional protections for all Americans.  I stand ready to work with Senator Sessions as he becomes our Country’s Attorney General, and offer to him my willingness to help him in any way I might be of service.    

This Day in Liberal Judicial Activism—January 4

by Ed Whelan

2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for ignoring the governing federal statute, for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials,” and for failing to “follow regular procedures.”

New Senate Judiciary Committee

by Ed Whelan

The Senate Judiciary Committee in the new Senate will continue to have eleven Republicans and nine Democrats.

The eleven Republicans are Grassley (chairman), Hatch, Graham, Cornyn, Lee, Cruz, Sasse, Flake, Crapo, Tillis, and Kennedy. Sasse, Crapo, and Kennedy are new to the committee (and are replacing Sessions, Vitter, and Perdue).

The nine Democrats are Feinstein (replacing Leahy as ranking), Leahy, Durbin, Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and Hirono. Hirono is new to the committee (and is replacing Schumer).

Who is Thomas Figures?

by Carrie Severino

Judicial confirmations ain’t beanbag, but Democrats opposing Jeff Sessions’ 1986 nomination to federal district court repeatedly chose the low road, egged on by then-Senator Joe Biden, who was the ranking minority member of the Judiciary Committee. Judiciary Committee Democrats collected information provided “confidentially” to the American Bar Association, deposed government attorneys, and aired anonymous slanders by Mobile County Democrats. Then-Senator Joe Biden and the other Democrats only called a handful of witnesses with personal knowledge of Sessions, and several of those had major credibility problems. Nevertheless, wild accusations of racism from the few witnesses the Democrats called ended up dominating press coverage. Now that Sessions has been designated as President-elect Trump’s nominee for Attorney General, journalists have begun to rehash the old allegations.

In those days, the testimony of Thomas Figures, one of the few witnesses having personal experience with Sessions, received the most significant attention. Who is Figures? And why should we believe him?

At the time of the hearings, Figures was a lawyer in private practice from Mobile, Alabama. He had previously worked as an Assistant U.S. Attorney under Jeff Sessions for about four years, starting when Sessions became U.S. Attorney under Reagan in 1981. (Figures made oddly inconsistent statements about when he started as an AUSA. In his oral testimony, he said that he had been hired in September 1978. In a written statement provided to the committee, however, he said that he worked there “[p]rior to the middle of 1975.” And in that same statement, he also said that he had started his work there “during the Carter Administration,” consistent with his oral testimony. He did not explain or correct the contradiction.)

After the 1980 elections, politically-appointed officials like William Kimbrough, Jr., the Carter-era U.S. Attorney for the Southern District of Alabama, left their posts. Kimbrough believed that staying on despite strong disagreements with the incoming Administration might lead to perception of sinister motives at work in perfectly innocent statements or actions. For that reason, Kimbrough said, Figures “probably would have been better served to leave, as I did.” But he didn’t, and Figures ended up working for Sessions until 1985.

Working for a strong Republican conservative like Sessions must have been very difficult for Figures. Deeply embedded in Alabama’s Democratic party, politics was part of Figures’ everyday life. His brother (who was later his law partner) was a state senator and a Democrat, and Figures himself had been “vice chairman of the Mobile County Democratic Conference.”

Kimbrough told the committee that he believed that Figures “became disaffected when the Republicans came into office[.]” Nevertheless, Figures had to admit that Sessions left civil rights law enforcement essentially unchanged in his district. Senator Jeremiah Denton asked Figures during the committee hearing whether Sessions had told him that he “wanted [Figures] to continue to handle civil rights cases?” Figures’ response was simple: “Yes, sir.” Sessions also told Figures that he wanted him “to come to him to discuss any problems” in that area “because he wanted to ensure that those cases were properly handled.” He also acknowledged that Sessions had deferred to his recommendations about pursuing civil rights cases (except on the criminal ones) and “never withdrew a case assignment because he disagreed” with Figures.

Figures appreciated several things about Sessions’ tenure as U.S. Attorney. He acknowledged that Sessions had “made substantial progress in rooting out political corruption in the city of Mobile,” noting one case that “was a major step toward reducing bribes and case-fixing in the State court system.”

On the other hand, Figures had difficult interpersonal relationships at the U.S. Attorney’s Office. One colleague, a fellow AUSA named Ed Vulevich, said that Figures had a “pretty bad attitude problem,” “carrie[d] his feelings on his sleeve,” and had “considerable difficulty dealing with some investigative agents or agencies.” His “main problem,” the colleague said, was “getting along with people.” Not surprisingly, Figures came across to Vulevich as having “somewhat of a persecution complex.” Vulevich described the problem this way: “I might best describe it as the man in a football stadium with 80,000 people but he thinks that when the team huddles, they are all talking about him.”

Some of Figures’ accusations involved statements that are clearly deadpan or gallows humor. At the hearing, the senators confronted Sessions with Figures’ claim that Sessions had said: “I thought those guys [the Ku Klux Klan] were OK until I learned they smoked pot.” The hearing transcript records that there was laughter in the committee room following the quotation, indicating that the audience thought it was funny, too. So did an attorney from the Civil Rights Division, Barry Kowalski, who testified that the statement “clearly was intended as humor.” Moreover, it was apparently funny enough to repeat to others, with Kowalski repeating the joke often enough that he was “not certain how many times” he passed it on. Albert Glenn, another Justice attorney, said that he “took it wholly as a joke and humor. It never occurred to me that there was any seriousness to it. There was no question in my mind at the time that it was meant humorously.” The only person who didn’t get the joke was Thomas Figures, who was convinced that Sessions said it in a “serious manner.”

In another instance, Figures appeared to be baiting Sessions with a news story reporting that the NAACP had challenged some Reagan Administration position on affirmative action. He said that he said, “really in jest, well, there goes that subversive NAACP again.” Figures claims that in response, Sessions blushed, became “very serious,” and “became very stoic” before saying that he did not think that they were subversive, but that the NAACP and some of its left-wing partners were “un-American organizations with antitraditional American values.” Sessions explained to the committee that he was complaining about the mission creep that characterizes organizations that start out focusing on civil rights issues like discrimination and “lose their moral authority” by becoming de facto political organizations.

Other allegations failed to survive any scrutiny whatsoever. Figures accused Sessions of calling him “boy” in front of three colleagues at the U.S. Attorney’s Office, but all of those colleagues responded that they had never heard anything like that. Figures even told the committee that the offensive comment was made “regularly” by Sessions and the other assistants in the office, although he later tried to claim (falsely) that he had not used the word “regularly.” Figures also claimed that Sessions had told him to “be careful what you say to white folks.” Sessions flatly denied saying “white folks” but did say that he admonished Figures for making a cutting remark to a secretary that “hurt her feelings.” In an ironic twist, Sessions said that Figures had admitted to sometimes getting in trouble by making jokes that people take too seriously.

As before, America Rising Squared was enormously helpful to preparing this piece.

Who is Douglas Wicks?

by Carrie Severino

One of the more outrageous allegations made during Jeff Sessions’ 1986 confirmation hearing was aired by then-Senator Joe Biden, who asserted that Sessions had been accused of using the “n-word” five years earlier in 1981. The Guardian resurrected the charge shortly after Sessions’ nomination was announced last month and managed to obtain an interview with the alleged object of the slur, Douglas Wicks.

So who is Douglas Wicks?

Wicks was the first black county commissioner to be elected in Mobile County. According to Biden, the alleged incident occurred during a November 1981 election law case involving Wicks in which Sessions was representing the losing party “not as a U.S. attorney but as counsel.” Biden’s source alleged that after a particularly heated hearing, Sessions told Dan Wiley, a Democratic politician and former county commissioner, that one of the white county commissioners “[would] be watching” Wiley and Wicks. Biden’s source alleged that Sessions had used the “n-word” to refer to Wicks.

Accusations based on racial slurs are inflammatory in any case, so it’s not surprising that Biden failed to notice basic problems with the story. For instance: Would a top federal prosecutor bother to step into a county election dispute only four months after confirmation? And if so, would he have done so as private counsel, thereby creating conflicts of interest for the entire U.S. Attorney’s office? Had Biden been interested in the truth, he could have called either Wicks or Wiley as witnesses. He wasn’t, so he was content to publicize the anonymous slander. 

But if Biden was privately skeptical about the credibility of these witnesses, he had good reason. The following year, Wicks would go on to be sentenced to 15 years in prison for extorting money from people having business before the county. Later, in 1999, Wiley would be sentenced to two years in federal prison for federal tax fraud and money laundering.

Wiley died in 2008, but the Guardian did manage to scrape up some double hearsay from Wicks: “Wicks . . . said he did not hear Sessions use racist language himself but was informed that he had done so by Cain Kennedy, who was Alabama’s first black circuit judge. Kennedy, a former state legislator, died in 2005.”

It is particularly strange that Wicks would cite Kennedy as his source, since Kennedy actually supported Sessions’ nomination in 1986. During Sessions’ confirmation hearing, Kennedy signed a telegram from the judges on his circuit to the committee describing Sessions as having an “excellent” reputation, arguing that “he would make an excellent federal district judge and would rule impartially in all matters presented to him,” and “urg[ing] you to support this fine candidate and his nomination to the federal bench.” Would Judge Kennedy have signed that letter to support someone who used a racial slur to describe a black man?

If the Judiciary Committee calls Wicks this time around, he may face questions about his reliability as a witness. In recent years, he claims to have had a variety of unusual religious experiences, including a series of word-for-word messages from the Holy Spirit which he published in a 2011 book. I’m prepared to accept the idea that the Deity could give personal revelations, but Wicks’ revelations run the gamut from just goofy to arguably racist.

For example, Wicks claims to have had a revelation from the Holy Spirit about a conversion process between light and other forms of energy:

HOLY SPIRIT: “When compressed individual rays of light are accelerated in the opposite direction of their travel a counter energy force is created that produces energy that may be channeled to produce power.

WICKS: “Note: The Gillette Razor Fusion commercial I first saw on television about 2005 or 2006 is a picture of the vision I was given how the light energy power conversion process may be achieved.”

Wicks also cites the Holy Spirit as revealing to him a history of “Black people” that even David Duke might consider over-the-top:

HOLY SPIRIT: “On the matter of race and the origin of Black people as we now know them; came from the region of Babylon where the tower was constructed, as were all others (people). Blacks were the first rulers of the earth, as was Nimrod. They worshipped a god called “Occult” that was an evil angel of Satan. They worshipped this false god and became his subjects. The people made oaths and vows to always manifest the false god’s seed. In return he gave them favor through occultist powers that were used to oppress others and have them worship them as god’s representatives on earth. A generational curse was given in seed form when every baby born was sacrificed unto this satanic angel, Occult (Gen 10: 8-10). The seed was planted to stop the work of you and others of your spiritual heritage. Violence spread upon the earth through Nimrod’s vision of Satan’s plan. Nimrod required all babies born to be sacrificed to the occult god and receive the seed of Satan. The seed of Nimrod caused (spiritual) darkness to descend upon black people and to stray from light. Enmity came between blacks and other groups of people according to their language. The language of the blacks was the language used by the demons to oppress the people of other groups.”

Is this someone the Judiciary Committee would really take seriously on matters of racism?

Special thanks to our partners at America Rising Squared, whose excellent work has provided important background information for the Sessions nomination. 

WaPo’s Race-Baiting Against AG Pick Sessions

by Ed Whelan

On Christmas Day, the Washington Post published this long front-page article titled* “Trump’s pick for attorney general is shadowed by race and history.” The article begins by insinuating that Senator Jeff Sessions, back when he was U.S. Attorney in Alabama in the 1980s, sought to send Evelyn Turner, a “mother of four,” and “her husband [Albert Turner], an aide to Martin Luther King Jr., to prison for 150 years” for voter fraud because “black Americans were gaining ground in elective offices across the South.” (The article of course doesn’t say “because”; that’s just what it insinuates.)

Only in paragraph 31 does the reader finally learn that the “case arose out of complaints to the district attorney brought by local black officials that [Albert] Turner … and associates were taking absentee ballot and altering the votes” and that “there was a split between two factions, both black, that were vying for power in the county.” Even that information is couched amidst claims that the case “was emblematic, voting rights advocates say, of a push by officials in several southern states to try to disenfranchise black voters” and that, per Turner’s brother, Sessions “wanted to use [Turner’s] visibility to send a message.”

To be clear: I am not maintaining that the fact that Sessions acted in response to “complaints … brought by local black officials” categorically disproves the possibility that he might have acted from illicit motives. I am maintaining, rather, that that fact deserves to be highlighted up front and that the Post’s failure to do so, coupled with its inflammatory insinuation, strongly suggests that it is acting from illicit motives.

* That’s the online title, at least; I don’t recall whether it was also the print title.

Scrambled Eggheads Against Jeff Sessions

by Carrie Severino

In a turn of events that will surprise exactly nobody, a group of liberal law professors is circulating a letter arguing that Senator Jeff Sessions shouldn’t be confirmed as Attorney General. It turns out that some of them aren’t exactly the academy’s brightest luminaries. Several of the signatories signed onto another letter earlier this year asserting the silly claim that the Senate had a “constitutional duty” to hold a hearing and a vote on Merrick Garland’s nomination. For the record, some of those not-so-leading lights are: Allie Robbins, Angela Davis, Beth Lyon, Beverly Balos, Doug Colbert, Elliot Milstein, Kathy Hessler, Margaret E. Johnson, Nancy Levit, Nancy Abramowitz, Peter Edelman, Phyllis Goldfarb, Stephen Wizner, Susan Bryant, Suzianne Painter-Thorne, and Verna Williams.  (The list is being actively updated so there may be more.)

The authors are also engaging in a bit of grade inflation on their numbers. At least 50 of the signatories are clinical or adjunct faculty, which means that they’re effectively practitioners, not law professors who spend their days in the ivory tower looking for profound legal insights.

We should note that numerous other lawyers and law enforcement officials have already declared their support for the Sessions nomination, ranging from former Deputy Attorney General Larry Thompson to the National Association of Assistant U.S. Attorneys and Federal Law Enforcement Officers Association.

Of course, it’s no secret that legal academia is overwhelmingly liberal. Professor Nick Rosenkranz noted in a 2015 article that only three out of 120 professors at Georgetown’s law school were willing to openly describe themselves as conservative, libertarian, or Republican. Likewise, James Lindgren’s 2013 study showed that 82% of professors gave political contributions to Democrats and only 15% gave to Republicans. With the amount of left-wing vitriol currently being directed at the incoming administration, I’m a little surprised that they didn’t get more professors on board. 

Who is George Conway?

by Jonathan H. Adler

Over the weekend, Beltway commentators were abuzz with rumors that President-elect Donald Trump is considering naming New York lawyer George Conway as the next Solicitor General. Why the buzz? For starters, Conway’s not a DC appellate regular. More significantly, Conway is married to Trump campaign manager Kellyanne Conway, who was recently named counselor to the President. Based on these facts, some suggested a Conway would represent the elevation of connections over qualifications. After all, how could Mr. Kellyanne Conway be qualified to represent the United States before the Supreme Court? In actuality, however, Conway has more relevant experience than did Obama’s initial SG pick. Any suggestion he’s unfit for the job is inaccurate and unfair.

Who is George Conway? For starters, he’s a partner at the powerhouse New York firm Wachtell, Lipton. In over 25 years at the firm Conway has accumulated substantial appellate experience, representing clients ranging from NFL Properties and Philip Morris to the Chief Judge of New York and artist Christoph Büchel. Most significantly, Conway successfully argued Morrison v. Australia National Bank before the Supreme Court, one of the most significant securities law cases of the past ten years. By comparison, Elena Kagan had zero appellate arguments to her credit when President Obama nominated her to serve as SG, let alone a successful argument in the Supreme Court.

Conway is no stranger to controversy. His representation of Philip Morris included a defamation suit against ABC (culminating in the network issuing an apology to settle the case) and he served o the legal team representing Paula Jones in her litigation against Bill Clinton. No doubt we’ll see lots of stories about this should Conway be nominated.

No doubt there are other highly qualified individuals in the mix to be Trump’s SG. I have little doubt this is a pick the Trump team will take very seriously. The point of this post is not to endorse Conway as against any other potential candidate, but simply to dispel any suggestion that he lacks the relevant qualifications for the job. He may not be the sort of DC appellate star usually favored by #appellatetwitter, but that should hardly be a strike against him.  Whatever one thinks of the President-elect’s other nominees thus far, George Conway would be a perfectly good selection for SG.

This Day in Liberal Judicial Activism—January 1

by Ed Whelan

2017—Happy New Year! Welcome to another year of This Day in Liberal Judicial Activism.


I assure longtime readers that you’ll find plenty of new content this year. Plus, the permanent collection should serve as a useful reminder of how dominant liberal judicial activism is in our legal culture.


Let’s hope against hope that this New Year won’t provide additional material for further This Day posts.

This Day in Liberal Judicial Activism—December 31

by Ed Whelan

2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business days.

Why the rush? Walker is presiding over the challenge to California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage (in reaction against a lawless state supreme court ruling). His New Year’s Eve surprise is a critical step in his effort to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s supporters. Broadcasting the upcoming trial would generate much greater publicity for ringmaster Walker’s circus and would also surely heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation and abuse.

Two weeks later, the Supreme Court blocks Walker’s kangaroo-court procedures. The per curiam majority opinion issues a stinging rebuke of Walker’s shenanigans:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

2009—By a vote of 4 to 3, the Montana supreme court rules (in Baxter v. Montana) that a physician who assists a patient in committing suicide cannot be prosecuted for the crime of aiding a person to commit suicide because the patient’s consent to the physician’s assistance provides a complete defense. The majority invokes a general statute that establishes consent as a defense to criminal charges and holds that the exception under that statute for conduct against public policy doesn’t apply. But, as the dissent argues, Montana law has expressly prohibited assisting suicide for over a century, so assisted suicide is plainly against public policy and the defense of consent is therefore not available.

Enough of Andy Schlafly’s Illogic

by Ed Whelan

I’ve already responded at length to Andy Schlafly’s deceptions and distortions about various of the Supreme Court candidates on President-elect Trump’s list. (See links here.) Schlafly has never engaged my arguments, nor has he even linked to them, as he understandably prefers to keep his gullible minions in the dark. I’m confident that anyone who reviews what I have written will have figured out that Schlafly is not to be trusted (or, if he hasn’t yet figured that out, is beyond the reach of further argument). So I don’t plan to spend any more time responding to Schlafly’s smears.

In his latest email to his followers, Schlafly imagines that my decision not to keep pounding my head against the wall of his obtuseness is some sort of vindication of his views:

Ed Whelan, who pushes a judicial philosophy that implicitly rejects Trump’s pro-life pledge, complained about our coalition letter until I pointed out that one of judges he defended (Colloton) had ordered Missouri to promote the KKK on road signs, while voting against pro-lifers who held private signs along a roadway.  Then Whelan went silent on this issue.

There are some ten or so confusions packed into these two sentences, but I’m not going to waste my time unpacking them.


Re: Smearing Justice Scalia on Science

by Ed Whelan

Some follow-up to my two posts criticizing Emily Bazelon’s New York Times Magazine article for its incoherent attacks on Justice Scalia’s supposed hostility to science:

Cyberlaw expert (and former Scalia clerk) Ian Samuel wrote a series of tweets last week in which he explained that Bazelon’s article “ends with, but does not appear to understand, the exact anecdote that contradicts its thesis”—her complaint, that is, that Scalia “even refused to join part of a 2013 opinion, by Justice Thomas, that laid out basic principles of human genetics in textbook fashion.” (See my point 6.)

Emily Bazelon undertook to respond to Samuel in a Facebook post. (She also responds in a P.S. to part of one of my points; I reply to her in a comment on her post and will simply refer the reader to that exchange.) Samuel, a self-described leftist, has written a devastating reply. I encourage you to read the whole thing, but here are some excerpts (italics in original):

Bazelon, in her essay, marvels at Scalia’s hesitance, given that the Court’s opinion simply laid out (in her view) “basic principles of human genetics.” But what she neglects to inform the reader is that, almost immediately after the decision was released, that Court’s opinion was widely criticized by geneticists for making basic mistakes.

I thought it was unfair, in other words, to criticize someone for being humble enough to withhold assent to technical statements that he was not sure were correct. But it is downright weird to do so when those statements turned out not to be quite right.…

Bazelon, in her reply, says she “looked for counterexamples” that would disprove the Scalia Science Wariness Hypothesis, but couldn’t find any.

The ideal counterexample, of course, would be fairly hard to come by. It would have to be a case that also involved the use of DNA, decided around the same time as Myriad Genetics, and would have to commit Scalia to an outcome that he might find politically unpalatable (lest he be accused of simply going along with scientific statements he did not really believe to achieve a convenient result). Ideally, it would be something that would conclusively indicate that Justice Scalia understood and accepted the basic science about DNA, which is what Bazelon charges Scalia with doubting, and was able to work with it. But Bazelon says that “no one [she] talked to could think of an example” like that.

But, actually, there is one. And it is far from obscure—it’s an opinion that Jeffrey Rosen, writing for the New Republic, called the Justice’s “smartest, wittiest ruling of all time,” and “one of the best Fourth Amendment dissents ever.” It’s Justice Scalia’s dissent in Maryland v. King, decided just ten days before Myriad Genetics.

The issue in King was whether the Fourth Amendment permits the government to take a DNA sample from an arrestee using an oral swab—even if there is no reason to believe that doing so will reveal any wrongdoing, and even if the person is later acquitted of the crime for which he is arrested.… The Court, in an opinion by Justice Kennedy, said yes—that using DNA in this way was an acceptable way to “identify” someone, and was in that sense no different than a fingerprint.

Justice Scalia, in a dissent joined by Justices Ginsburg, Sotomayor, and Kagan, disagreed. He criticized the Court’s “strange silence on the actual workings of the DNA search at issue here,” and then proceeded to discuss those workings at length, along with the mechanics of of the FBI’s DNA database (known as CODIS). The dissent also compares, in detail, the differences between DNA sampling and photography, fingerprinting, and even the use of so-called “Bertillon” measurements (such as noting an arrestee’s height, shoe size, etc., on the back of a photograph).…  

The King dissent, it is true, does not contain any mention of nucleotides or the other technical terms that so unhelpfully litter the Myriad Genetics opinion. But its engagement with the science and practice of DNA identification is no less deep—it is simply phrased in language that can be understood by a reader without graduate training in molecular biology. More importantly, the dissent simply makes no sense as a document if (as Bazelon suggests) Justice Scalia was wary about the basic science of DNA. By way of refuting the Court’s ridiculous “identification” theory, Scalia argues that in fact what makes DNA “a valuable weapon” in law enforcement’s arsenal, he says, is “the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known.” How could a person who doubted DNA science believe that?

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.​

NYT’s Regurgitated Nonsense

by Ed Whelan

I was going to highlight the manifold distortions in this Christmas Day house editorial in the New York Times, hilariously titled “The Stolen Supreme Court Seat.” But I see that it largely repeats the silly claims that the NYT editorial board made on the eve of the election in “A Coup Against the Supreme Court.”

So I’ll refer the interested reader to my response to that earlier editorial as well as my more extended response to Geoffrey Stones similar claims.

I will also again highlight that President Obama’s former White House counsel recently acknowledged that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the Scalia vacancy.


This Day in Liberal Judicial Activism—December 29

by Ed Whelan

1965—In Scenic Hudson Preservation Conference v. Federal Power Commission, a Second Circuit panel abandons the traditional requirement that a plaintiff, in order to establish standing, must allege a concrete and particularized injury that is actual or imminent. In a ruling authored by Judge Paul R. Hays, the court declares that “those who by their activities and conduct have exhibited a special interest” in “the aesthetic, conservational, and recreational aspects of power development” have standing to challenge the Federal Power Commission’s grant of a license to a company to construct a hydroelectric project on the Hudson River.

2014—Twenty-five years after Eric Owen Mann murdered two men in cold blood, Ninth Circuit judges Sidney R. Thomas and Stephen Reinhardt combine to rule (in Mann v. Ryan) that Mann is entitled to habeas relief on his claim that his counsel’s performance at the sentencing phase of his trial was constitutionally deficient. In dissent, Judge Alex Kozinski observes:

Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.” In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

In August 2015, the Ninth Circuit will grant en banc review of the panel ruling, and in July 2016, it will repudiate the panel ruling.

This Day in Liberal Judicial Activism—December 28

by Ed Whelan

2005—“Allah” yes, “Christ” no. Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers. Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”

In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).

Trump’s SCOTUS Short List?

by Jonathan H. Adler

On CBS News’ “Face the Nation,” Christmas morning, Jan Crawford reported that the incoming Trump Administration is beginning to focus on a handful of potential Supreme Court nominees.  From the transcript:

CRAWFORD: Trump released a list before the election of — of potential nominees that he would consider. And my sources say he is sticking to that list. They have narrowed it down to just a handful of highly qualified, very respective — respected appellate court judges. I mean these are conservative legal rock stars. I mean this is not going to be a battle over qualifications. This will be a battle over ideology.

DICKERSON: Any top names — not to play this ridiculous game, but I’ll start it there.

CRAWFORD: . . . .they are going to move quickly on this. They’re — they’re narrowing their focus on a handful, like I said, of appellate court judges. Bill Pryor from the Atlanta based Federal Appeals Court. Thomas Hardiman, a judge on the Philadelphia based Appeals Court. Steve Colloton, from out in Iowa upon the U.S. Court of Appeals, the Eighth Circuit. A judge, Diane Sykes, on the Seventh Circuit. And Joan Larsen, on the Michigan Supreme Court. But, again, all highly qualified. You — you can’t argue with their credentials.

Hat tip: How Appealing.

This Day in Liberal Judicial Activism—December 27

by Ed Whelan

1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis. The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement. (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.” He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.” “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.” But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier. In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career: “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.” Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.” 

Appellate Judge Confirmation Rates

by Jonathan H. Adler

Today’s Washington Post reports on President-elect Donald Trump’s potential to reshape the federal judiciary, beginning by nominating judges to fill the 107 vacancies on the federal bench, including 14 appellate vacancies (with more on the way). The article repeats allegations that this number of vacancies is due to an  ”unprecedented” level of obstruction. President George W. Bush appointed 62 appellate judges, whereas President Obana only appointed 55, and the reluctance of a Senate controlled by the opposite party to move on a President’s nominations is part of the reason — but only part.

President Obama has appointed more federal judges (329) than did President Bush (326), and this is despite being far slower to nominate judges to pending vacancies. Of the 107 vacancies, only 59 have nominees. Republicans have indeed stalled and blocked some of President Obama’s nominees.  Yet the obstruction of lower court nominees is nothing new. It’s also significant that President Bush was willing to offer concessions (nominating Roger Gregory and Barrington Parker) and make deals (nominating Helene White as part of an exchange) to see his appellate nominees confirmed, whereas President Obama was not.

For reference, here’s the confirmation rate for appellate nominees over the past 36 years, listed by President.

  • Reagan – 88 percent
  • Bush – 79 percent
  • Clinton – 77 percent
  • Bush – 67 percent
  • Obama – 82 percent

Of course, this is only part of the story, but it’s an important part.  For more on the history of lower court judicial nominations, see this VC post from 2013.