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.)

‘Trump’s Stellar Judges’

by Ed Whelan

My new National Review article on President Trump’s great start on judicial appointments in 2017 and on the very challenging path ahead is freely available online. A brief excerpt:

For all the justified celebration of Justice Gorsuch and these twelve new appellate judges, however, the overall picture on judicial confirmations is far from rosy. Seven vacancies on the courts of appeals have gone nearly a year without any nomination being made to fill them. The situation on district-court nominations is much worse (and has very little to do with the three recently withdrawn nominations that caused the Trump administration some embarrassment). Only six district judges were confirmed in 2017. Twenty-two nominations were left languishing on the Senate floor at the end of the year, including twelve that had been awaiting action since October. And dozens of district-court vacancies that existed on Inauguration Day still await nominees.

Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations.

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.”

The Year Ahead in Judicial Appointments: Four Big Questions

by Ed Whelan

In the forthcoming issue of National Review (out tomorrow, I believe), I have an article on President Trump’s great start on judicial appointments in 2017 and on the very challenging path ahead. Reworking some of the material in my article, I present here what I regard as the four big questions on the judicial-nominations front for 2018:

1. Will a Supreme Court vacancy arise?

Your guess is as good as mine. If the rumors are true that Justice Kennedy has been looking to retire, then it seems a reasonable bet that he would do so this spring. Indeed, the very real prospect that Democrats will win control of the Senate in the November 2018 elections might clinch his decision to do so. If he waits until next year, and if Democrats take control of the Senate, his seat would probably remain empty until 2021. That’s probably not a scenario that Kennedy would welcome.

I very much doubt that any other justice is considering stepping down. But, as Justice Scalia’s death reminds us, vacancies can arise when you’re not expecting them.

If a vacancy does arise this year, the White House ought to be able to obtain Senate confirmation of an outstanding candidate. Thanks to the Senate Democrats’ foolish obstruction of the Gorsuch nomination, Senate Republicans abolished the filibuster (the 60-vote threshold for cloture) for Supreme Court nominations. So the White House will know from the outset that the next nominee will need the support of only 50 senators, plus the tie-breaking vote of Vice President Pence, for confirmation.

2. How expeditiously will Senate Judiciary Committee chairman Chuck Grassley apply his newly clarified blue-slip policy?

The committee’s blue-slip privilege accords individual senators the opportunity to approve or disapprove of judicial nominations—both appellate and district-court—in their home states. Judiciary Committee chairmen in recent decades have varied on whether a negative blue slip flatly blocks a nominee. In November, Grassley clarified that he will not treat a negative blue slip as a veto but will instead have the blue-slip process encourage consultation between the White House and home-state senators. If that consultation occurs, Grassley says that he “won’t allow senators to block nominees for political or ideological reasons.”

There are 149 existing vacancies on the federal courts and an additional 20 declared future vacancies (instances in which a sitting judge has stated an intention to step down on a date certain or upon confirmation of a successor). There are nominees for only 50 or so of those vacancies. (I’ve excluded from my count the three district-court nominations that will not be resubmitted.)

The impact of the pre-November uncertainty about Grassley’s blue-slip policy can be seen in the deep divide between nominations in red-senator states (states with two Republican senators) and those in blue-senator or purple-senator states (states with two or one Democratic senators, respectively). As this spreadsheet shows, as Christmas approached, there were 70 district-court vacancies in blue-senator or purple-senator states—including nearly 50 that existed on Inauguration Day—and a grand total of only two nominations to those 70 vacancies. (An additional nine nominations were made just days before Christmas.) There were also eleven appellate vacancies in blue-senator or purple-senator states—including five that existed on Inauguration Day—and only two nominations to those eleven vacancies.

It’s of course no surprise that the White House and individual Democratic senators couldn’t come to agreement on acceptable nominees. Grassley’s clarified blue-slip policy ought to break the stalemate and encourage the White House to make nominations that home-state Democrats haven’t precleared. The big question is how long he allows the consultation process to play out before he is willing to proceed with committee hearings and votes on nominees.

3. Will Senate majority leader Mitch McConnell find a way to break the Democrats’ blockage of floor votes on judicial nominees?

Thanks to Harry Reid’s leadership, the 60-vote threshold for cloture on lower-court (and executive-branch) nominations was abolished in 2013. But Senate Democrats have been chewing up scarce Senate floor time by routinely requiring cloture votes on all nominations. The Senate’s executive calendar at year end had over 100 nominations (executive and judicial) awaiting a floor vote. This back-end clog needs to be cleared, one way or another, if the judicial-confirmation pipeline is going to flow smoothly.

4. Will Republicans retain control of the Senate after the November 2018 elections?

Contrary to expectations of a year ago, the Senate is now viewed by many as up for grabs in the next elections. The White House and Senate Republicans will be racing against the clock to confirm as many judges as possible before November, and Senate Democrats will be doing their best to run out the clock. If Democrats win control of the Senate, judicial confirmations will grind to a halt next year. But if Republicans retain control, President Trump will have at least two more years, on top of his first two, to work to achieve a genuine transformation of the American judiciary.

Judicial Activism from the Grave

by Ed Whelan

If you thought that Ninth Circuit judge Harry Pregerson’s death in November 2017 would mark the end of his long career of liberal judicial activism, you were wrong.

In a divided panel decision issued last Friday in Hernandez v. Chappell, Judge Stephen Reinhardt added Pregerson to his opinion to create a majority ruling vacating, on habeas review, the convictions in 1983 of Francis Hernandez on two counts of first-degree murder, two counts of rape, and two counts of forcible sodomy. A footnote to the opinion states: “Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete.” Judge Jacqueline Nguyen, an Obama appointee, dissented.

In fairness to Reinhardt, I will note that the question whether and when a judge who has died can nonetheless take part in a court’s ruling is a contested one. As Howard Bashman noted in this How Appealing post in 2006, in two separate Third Circuit cases, a judge who had died was the author of the majority opinion.

Re: Farr-Fetched Attack

by Ed Whelan

In a New York Times op-ed last week, in a string of McCarthy-esque guilt-by-association charges, William Barber II shamelessly smears federal district nominee Thomas A. Farr as a white supremacist.

Typical of the quality of Barber’s claims is his assertion that during Jesse Helms’s 1990 Senate campaign Farr “participated in racist tactics to intimidate African-American voters” and then committed “apparent lying on the topic to the Senate Judiciary Committee.” As I discussed in this post, the supposed evidence for this claim consists of an unreliable partisan’s imaginative reconstruction of notes he made in his diary twenty-seven years ago about what he was told was said at a meeting with Department of Justice lawyers that he didn’t even attend. Farr and the campaign manager have attested that Farr played no role in the contested postcard mailing and learned about it only after the fact. That’s obviously what the Department of Justice also determined: DOJ negotiated the consent decree with him as counsel for the campaign (a DOJ veteran confirms for me that DOJ wouldn’t ordinarily negotiate directly with someone it believed was complicit in the wrongdoing) and, after its extensive investigation into the matter, did not name him as a defendant in its civil action.

Further, the American Bar Association’s judicial-evaluations committee has twice given Farr a unanimous “well qualified” rating—in its words, its “strongest affirmative endorsement”—both in connection with his current nomination and on his previous nomination back in the Bush 43 administration. That rating means that the ABA has found Farr to “be at the top of the legal profession in his … community,” to have “the highest reputation for integrity,” and to “demonstrate the capacity for sound judicial temperament,” including “freedom from bias and commitment to equal justice under the law.” It is farfetched to imagine that anyone against whom plausible allegations of racism or white supremacism could be leveled would earn such a rating.

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.

This Day in Liberal Judicial Activism—December 30

by Ed Whelan

2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.” Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend.

In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

2008—Poor Stephen Reinhardt. The Ninth Circuit arch-activist who has made a career of defying the Supreme Court—“They can’t catch them all,” he boasts of his wayward rulings—purports to take offense that a dissent from the denial of rehearing en banc in Belmontes v. Ayers (see This Day for June 13, 2008) implies that his rulings in that case have “flouted the will of the Supreme Court.” Some eleven months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses Reinhardt—the third time in this same case that the Court has reversed or vacated one of his rulings. Further, the Court states that it finds his reasoning incomprehensible and fanciful, and it notes his manipulative recharacterization of the evidence. (See This Day for November 16, 2009.)

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).

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.”

This Day in Liberal Judicial Activism—December 25

by Ed Whelan

1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible. 

More Bad PC at the University of Missouri

by Roger Clegg

An interesting lawsuit was filed earlier this week against the University of Missouri medical school, in which an administrator there says she was fired for having the temerity to suggest that the racially preferential policies being suggested might raise legal problems and ought to be reviewed by the school’s counsel.

Appalling. Such review is the bare minimum that any school engaging in such discrimination ought to undertake. Anything else is likely illegal, because the Supreme Court has warned that any use of race must be “narrowly tailored,” and whether that standard is met will ordinarily require a legal analysis. That someone would be fired for asking for school counsel’s opinion is disgusting policy and grossly unfair, whatever its legality.

More: Kim McLane Wardlaw Makes Her Mark

by Ed Whelan

As foreseen, the Supreme Court, in a unanimous per curiam opinion, has summarily reversed the divided Ninth Circuit ruling that would have required the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy. That’s yet another extraordinary slapdown of Ninth Circuit judge Kim McLane Wardlaw, who co-authored the Ninth Circuit ruling.

Year-End Invitation

by Ed Whelan

Please indulge my once-a-year pitch:

If you enjoy my posts here on Bench Memos and appreciate the impact that I’m having on the broader debate on constitutional issues and judicial confirmations, then I invite you to support the Ethics and Public Policy Center (in addition to supporting National Review). It’s my full-time position as president of EPPC that pays my salary and enables me to carry out my work, both here and elsewhere. Plus, I have a great team of colleagues at EPPC, including frequent NRO contributors George Weigel, Mona Charen, Yuval Levin, and Stanley Kurtz.

Farr-Fetched Attack

by Ed Whelan

In mid-October, the Senate Judiciary Committee favorably reported to the Senate floor President Trump’s nomination of Thomas A. Farr to a federal district vacancy in the Eastern District of North Carolina. The Left is now trying to stall further action on the Farr nomination on the flimsiest of grounds.

In 1990, the Department of Justice filed a complaint charging the 1990 Helms for Senate Committee with intimidating black voters in violation of the Voting Rights Act of 1965. The complaint alleged that the campaign sent postcards to black voters suggesting that they were ineligible to vote and could be prosecuted for voter fraud if they voted.

In answer to a written question from Senator Feinstein (see Q3 here), Farr testified that he played no role in the campaign’s decision to send the contested postcards and that he did not learn about the postcards until the Department of Justice sent a letter of complaint to the campaign and the campaign manager then called him for legal advice.

Gerald Hebert, who worked in DOJ in 1990, disputes Farr’s answer and claims that Farr “was certainly involved in the scheme as it was being developed.” In support of his claim, Hebert cites an entry he made in his diary back in 1990. That entry refers, among other things, to a meeting in Raleigh in “10/16 week” that appears to attribute to Farr the propositions that “Postcards [are of] limited use,” that the campaign “Need[s] to focus [given] only 3 weeks left Before Election Day,” that the state election boards “will be our Ballot Secur[ity],” and that “Postcards can be used for post[-]election challenges.”

Two new letters—one from Carter Wrenn, the Helms campaign manager in 1990, the other from Farr himself, responding to questions from Senator Cory Booker—demolish Hebert’s claim.

In his letter to Senator Thom Tillis, Wrenn indicates that Hebert is conflating into a single “scheme” two very different events. Farr was among those at a meeting “on October 16th or 17th” with a consultant proposing to do a ballot-security program. Among the ideas the consultant raised at the meeting was a postcard mailing to identify voters who no longer lived at their registered address. As Farr testifies in his letter, he told the meeting participants that “there was no reason to do a card mailing in 1990 because North Carolina law had been changed and returned cards could not be used to challenge voters.” (He also said that the campaign “might decide to attempt to use returned cards in a recount,” though he “was doubtful of the utility of any card mailing, even in a recount.”)

As Wrenn explains, a second and separate undertaking was the postcard mailing that was the target of the DOJ complaint. Specifically, in “late October of 1990, one of the staff brought me a copy of the postcard they wanted to mail for me to approve”:

It was near the end of the election, there was a new problem very five minutes, and the postcard sat on my desk a couple of days until the staffer returned and said, You need to approve that card today. I said, Go ahead and send it. Instead of stopping to think, review the card, or seek a legal opinion, I said send it.

Wrenn confirms Farr’s testimony that he first contacted Farr about the postcard after receiving a DOJ letter about it: “Up until that time, Tom hadn’t seen the card that had been mailed, did not know it had been mailed, or know who it was mailed.” As Wrenn points out, “the actual postcard that was mailed could not have been discussed [at the mid-October meeting] because it did not exist at the time.”

In his letter, Farr forcefully reiterates that he “played no role whatsoever in drafting the [contested] card, providing counsel on the card, deciding to mail the card, or identifying those who would receive the card.” Indeed:

When I first saw the language on the card after it had been mailed and was advised as to whom it had been mailed, I was appalled. I immediately recommended that the Helms Committee cancel their 1990 ballot security program which they did. I then spent the next several months working with the Justice Department to resolve the matter with a consent decree.

As Farr points out, the fact that the Justice Department, after its extensive investigation, did not name him as a defendant in its civil action reflects and confirms the simple reality that he was not involved in any way with the postcard—that he “did not know about the mailing of the card, its contents, or its recipients until after it had been mailed.”  

I’ll further highlight that Farr received a unanimous “well qualified” rating from the American Bar Association’s judicial-evaluations committee, which means, per the ABA Backgrounder, that it determined (among other things) that he has the “highest reputation for integrity.” (There is no inconsistency in crediting the ABA’s favorable ratings of conservative nominees and being suspicious of its unfavorable ratings of them, as the very concern is that the ABA is biased against conservative candidates.)

By the way, according to this Huffington Post article trumpeting Hebert’s claim, Hebert “didn’t work on the case [concerning the controversial postcard] directly.” Rather, he “talked frequently with the two lawyers who did,” and his diary entries reflect his understanding of what they told him. Further, far from being a neutral observer, Hebert works for the Campaign Legal Center, which has litigated against Farr on election matters, and one critic of Hebert has criticized his “history of making things up about racial issues.”

This Day in Liberal Judicial Activism—December 20

by Ed Whelan

1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples.

2013—On the bench for barely a year, federal district judge Robert James Shelby refuses even to stay pending appeal his ruling that Utah’s marriage laws violate the federal Constitution. Shelby’s effort to sow chaos and thus alter the terrain while the appeal of his ruling is underway succeeds until the Supreme Court, more than two weeks later, finally blocks his ruling pending the completion of the appeals process.

What’s Eating Senator Kennedy?

by Jonathan H. Adler

Senator John Kennedy (R-LA) has emerged as an outspoken and effective critic of President Trump’s judicial nominees. He is the lone Republican Senator to have voted against one of the Trump Administration’s appellate nominees (Greg Katsas, who was nonetheless confirmed to the U.S. Court of Appeals for the D.C. Circuit), and he led the charge against some of the Administration’s district court nominees, three of which have been withdrawn. 

While Senator Kennedy presents himself as a guardian of judicial virtue seeking no more than to ensure all judicial nominees are suitably qualified, some suspect other factors may be at work. At one recent Senate Judiciary Committee hearing, the Senator seemed irked that the Administration had nominated a well-regarded appellate litigator for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit instead of tapping one of the Senator’s friends from back home. 

An article in today’s Washington Post ponders reasons Senator Kennedy may have for attacking Trump’s judicial nominees beyond legitimate concerns about qualifications. As the article notes, the pattern of Kennedy’s attacks suggest he may be harboring a personal grudge against the White House counsel’s office and may have home-state electoral ambitions. While it is reasonable to argue that district court nominees lacking meaningful trial court experience are unqualified, any charge that Katsas was unqualified or unsuited for the federal bench is simply absurd. So there’s ample reason not to take all of Senator Kennedy’s concerns at face value.