This Day in Liberal Judicial Activism—April 8

by Ed Whelan

2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.

2015—Shirley, you can’t be serious!

The day after Wisconsin voters amend the state constitution to alter the method for determining who is chief justice of the Wisconsin supreme court, Wisconsin chief justice Shirley S. Abrahamson files a federal lawsuit contending that the amendment violates her constitutional rights. The legal reasoning in Abrahamson’s complaint reflects just the sort of activist nonsense that Abrahamson has been notorious for during her decades on the court.

Less than three months later, the federal judge handling the case—an Obama appointee, no less—will grant summary judgment against Abrahamson.

Twitter, Facebook, and More

by Ed Whelan

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

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

This Day in Liberal Judicial Activism—April 7

by Ed Whelan

1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material. Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment. Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Yep, that carefully captures what viewing obscenity is all about. (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)

Chicago Events

by Ed Whelan

I’ll be in Chicago on Monday, April 10, for three events, the third of which I expect to attract an audience of 41,268 or so.

At noon, I’ll be at the University of Chicago law school for an event on religious liberty with law professor Genevieve Lakier and Aaron Streett (of Baker Botts). My remarks will focus on soon-to-be-Justice Gorsuch’s record on religious liberty and how he might affect the Court.

In mid-afternoon (probably at 3:30), I’ll be at Northwestern law school for an event tentatively titled “Lessons from the Gorsuch Confirmation Battle.” Northwestern law professor Tonja Jacobi has kindly agreed to provide commentary on my remarks.

Each of these two events is sponsored by the law school’s Federalist Society chapter.

That evening, thanks to the great generosity of Mr. Streett, I’ll join him at Wrigley Field for the World Series champion Cubs’ home opener against the Dodgers.

Supreme Court Filibuster Abolished

by Ed Whelan

Oh, glorious day!

Final confirmation vote on Friday evening around 6:45.

This Day in Liberal Judicial Activism—April 6

by Ed Whelan

1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.

As one of Blackmun’s former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the [decades] since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  

2016—In an Atlantic essay, lefty law professor Erwin Chemerinsky salivates over the prospect that President Obama’s hoped-for appointment of Merrick Garland to the Supreme Court would create a liberal majority that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust).

And all of that is before Chemerinsky even begins briefly sketching his “dream” agenda.

Alas for Chemerinsky’s dreams, Senate Republicans will succeed in blocking action on Garland’s nomination, and Donald Trump will defeat Hillary Clinton in the presidential election seven months later.

The Washington Post Publishes the Worst Analysis Yet of Neil Gorsuch’s Confirmation Fight

by Edward Blum

The prize for the worst analysis to date about the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court should be awarded to Professor Richard Hasen of the University of California–Irvine Law School. Professor Hasen’s evolution from a serious legal scholar to a partisan mudslinger is now sadly complete.

That is the only conclusion to be drawn from his April 2 Washington Post editorial, “Neil Gorsuch got where he is because of a form of affirmative action.” In it, Hasen calls Judge Gorsuch “an affirmative action baby” who did not “get where he is today solely based on his merits.” According to Hasen, Judge Gorsuch’s remarkable career is a product of Justice White’s affinity for law clerks from his home state, Justice Kennedy’s charity, political connections, and wealthy clients. To call Hasen’s charges unfounded would be more charitable than his baseless speculation deserves. But Judge Gorsuch’s sterling achievements and well-earned success at every stage of his career need no defense from me or any impartial observer.

What does merit a response is Hasen’s attempt to use his baseless speculation about Judge Gorsuch as a launching pad for a defense of affirmative action. Remarkably, Hasen’s convoluted argument makes one of the best cases against race-based preferences anyone has seen in a very long time. Hasen’s thesis is that simply by knowing the circumstances of Judge Gorsuch’s life — being a Coloradan, having a politically active mother, and representing powerful clients — one can label him an “affirmative action baby.” But these kinds of assumptions are of course what make racial preferences so pernicious. In Hasen’s view, for example, every African-American graduate from an Ivy League school is presumptively an “affirmative action baby” who did not gain admission on merit. As Hasen says: “There are often more qualified people than there are positions.” So, in his eyes, race must have played a role. Quite accidentally, then, Hasen proves Justice Clarence Thomas’s point: “These programs stamp minorities with a badge of inferiority,” and in so doing, “undermine the moral basis of the equal protection principle.”

Furthermore, Hasen’s attempt to defend his position on originalist grounds is even more nonsensical. Serious jurists and scholars — originalists and non-originalists alike — have, and are engaged in, a thoughtful debate about whether, and to what extent, the 14th Amendment, as originally understood, allows the use of racial preferences in government programs. Hasen’s breezy assertion that “an honest originalist probably would conclude that affirmative action is consistent with the original meaning of the 14th Amendment’s Equal Protection Clause, as the Congress that passed the 14th Amendment also passed race-conscious affirmative action legislation,” only proves that he is neither honest nor an originalist. There is far more to the issue than that — and Hasen knows it.

Hasen then claims that it is “a deep conservatism” that led Chief Justice Roberts and Justice Alito “to vote to oppose race-based affirmative action, even though they are not originalists.” But Hasen appears to have bypassed a far more obvious reason: respect for judicial precedent. Justice Harlan’s dissent in Plessy v. Ferguson and the Court’s decision in Brown vs. Board of Education have far more in common with those who oppose race-based affirmative action than they do with those who subscribe to the amorphous “diversity” rationale. In fact, Chief Justice Roberts’s statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” is reminiscent of what the plaintiffs told the Supreme Court in Brown: “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Is this what Hasen means by “deep conservatism”?

Indeed, it is striking that Professor Hasen doesn’t even try to defend the diversity rationale — the only rationale the Supreme Court has ever accepted for using racial preferences in education. Instead, he contends that race-based preferences should extend to African Americans because many of their “ancestors were slaves in the United States” and because they “are still working to overcome more than a century of discrimination once slavery ended.”

Well, as an initial matter, his candor is welcome and instructive. It is important that the Supreme Court understand that, deep down, ardent supporters of affirmative action don’t believe in the diversity rationale — it merely a means to an end for them. The Court should therefore view diversity-rationale arguments with deep skepticism.

More fundamentally, do Hasen and other progressives genuinely believe that slavery is a defense for how affirmative action is used today? Do they care that Ivy League schools are using it as cover to engage in systematic discrimination against Asian Americans — as Students for Fair Admissions has alleged in its ongoing lawsuit against Harvard? After all, Asian Americans, as Hasen puts it, also “have faced their own struggles, with many of them or their ancestors fleeing poverty or oppression.” Does it bother Hasen and the admissions administrators at dozens of elite universities that colleges are granting racial preferences mostly to affluent minorities from well-connected families instead of minorities from challenging social-economic circumstances? These are the applicants who need the “helping hand” that Hasen claims racial preferences deliver? There are many other issues that raise additional doubts about whether modern racial-preferences can withstand scrutiny even for those jurists and academics who accept them as constitutional under some circumstances. But why let nuance get in the way of an outburst against an honorable man.

Most disappointing of all, Hasen saves his worst criticism of Judge Gorsuch for last, claiming that his failure to “meet with three senators who are all women of color” adds to the “fears” about his approach “on issues of race.”

So, it has come to this.

No presumption of good faith. No offer of proof for such a serious accusation — even though they are only three of approximately 20 senators with whom Judge Gorsuch has not met. For the progressive academic, correlation is causation, and we are all guilty of racial insensitivity unless we can prove ourselves innocent.

But is Hasen willing to live by his own test? Who are the senators that Justices Kagan and Sotomayor failed to meet with? What if they were all Christian or white? Did they miss any Jewish ones? Should we make the same disreputable assumptions about them that Hasen is so eager to make about Judge Gorsuch? Of course not.

In the end, this scurrilous weaponizing of race as a debater’s tool just proves that the diversity project is a failure. After more than 40 years of experimentation with racial classifications and preferences as a means to promote reconciliation, we have less understanding and more division. We have an increased desire to make everything in life about the few things that separate us instead of the many that unite us. We’re going backwards.

Someone has a problem with race. But it is not Neil Gorsuch.

— Edward Blum, a visiting fellow at the American Enterprise Institute, is the president of Students for Fair Admissions.

Interview on Simple Justice Blog

by Ed Whelan

On the Simple Justice blog run by criminal-defense lawyer Scott H. Greenfield, David Meyer-Lindenberg presents a 10-question written interview of me that probably tells you much more than you’d care to know about my background and career—plus incidental mentions of Vin Scully, Don Drysdale, Bobby Kennedy, Richard Nixon, and Colonel Sanders. Here’s an excerpt in which I discuss my decision to leave private practice in 1990:

While I was on vacation in September 1990, it suddenly hit me with crystal clarity that I didn’t want to spend the rest of my life doing what I was doing. With my characteristic impatience, I then asked myself why I should do it for one second more—and I couldn’t come up with a good answer. So when I got back to the office, I informed my colleagues, to their surprise, that I had decided to leave the firm. Where would I go work? I didn’t know.

I have made three major decisions in my life that were, by conventional standards, foolish but that I’m so glad to have made. Deciding to leave Munger Tolles right on the cusp of an all-but-certain partnership, and with little idea what I would do next, was the first of the three.

The firm generously allowed me to continue working while I explored other job opportunities. I traveled back to D.C. to interview with two offices in the U.S. Department of Justice and one in the White House, but didn’t see any of those working out. I was all set to accept an offer with the U.S. Attorney’s Office in Los Angeles when I received a call in early December from the head of one of the DOJ offices. I wasn’t surprised at all when he began with, “Ed, I’m sorry to say that we’re unable to make you an offer at this time.” But I nearly fell out of my chair when he immediately followed with, “But would you be interested in clerking for Justice Scalia?”

If you had asked me to set aside the constraints of reality and pick my next job, clerking for Justice Scalia would have been at the top of the list. I had interviewed for a Supreme Court clerkship with him in 1986, just after my Wallace clerkship ended and just before his Senate confirmation vote. It never crossed my mind to apply again in 1990, when I was a full five years out of law school, and even if it had, I would have assumed that he had long since completed his hiring for the clerkships beginning in the summer of 1991.

In any event, two weeks later, I interviewed with Justice Scalia and his law clerks, and this time things worked out. I owe many people for my good fortune, Judge Wallace high among them. I never did learn just how my unsuccessful application for a job at DOJ ended up in a Scalia clerkship.

Re: ‘Bastardized Charges’

by Ed Whelan

This Politico article presents a longer overlap between a passage from Neil Gorsuch’s dissertation-turned-book and a 1984 law-review article by Abigail Lawlis Kuzma than I was aware of when I wrote my initial post on this matter yesterday evening. It’s still all highly technical medical jargon and very basic facts, in contrast with ideas, arguments, or creative expressions, and Kuzma herself has rejected the charge that Gorsuch plagiarized her.

This strikes me, at worst, as the sort of inadvertent mistake that many academics make in compiling materials for book-length dissertations. More broadly, I don’t see how this dispute over 20+-year-old citations has any meaningful bearing on the overall case for Gorsuch’s nomination.

(I am also adding the content of this post as an addendum to my original post.)

Bastardized Charges

by Ed Whelan

Surprise, surprise. Another desperate 11th-hour smear, something that appears to have become a rite of passage for Republican Supreme Court nominees.

Someone (David Brock, call your office?) is shopping around to news outlets baseless claims that Supreme Court nominee Neil Gorsuch committed acts of plagiarism in four passages in his 2006 book The Future of Assisted Suicide and Euthanasia. Multiple academics who have reviewed the charges—including one of Gorsuch’s imagined victims—have rejected those claims, which, they explain, rest on a misunderstanding of academic citation standards and don’t involve misappropriation of anyone’s ideas, theories, or creative expressions.

In what I’m told is supposedly the starkest example, the plagiarism peddler contends that Gorsuch wrongly borrowed from a 1984 law-review article when he described Down syndrome as a “chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation.” The article describes it as “an incurable chromosomal disorder that involves a certain amount of physical deformity and an unpredictable degree of mental retardation.” The peddler also contends that Gorsuch plagiarized when he wrote, “Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.” The article states: “Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.” Gorsuch cites the same underlying sources that the article does.

Abigail Lawlis Kuzma, the author of the law-review article, repudiates the plagiarism charges:

I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the “Baby/Infant Doe” case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.

Georgetown professor John Keown, one of the outside examiners of Gorsuch’s Oxford dissertation on which the book was based, calls the allegations of plagiarism “unsubstantiated” and praises the book as “meticulous in its citation of primary sources.” Further: “The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is very wide of the mark.” (I’ve revised this paragraph to reflect Professor Keown’s updated remarks.)

Dr. Chris Mammen, a fellow student of Gorsuch’s at Oxford, emphasizes that the “standard practice in a dissertation is to cite the underlying original source, not a secondary source, that supports a factual statement.”

Oxford professor emeritus John Finnis, who supervised Gorsuch’s dissertation and has reviewed the charges, says that “none of the allegations has any substance or justification” and that Gorsuch’s “writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he was working.”

At least four other academics have reviewed and rejected the plagiarism charges. But that evidently won’t stop some newspapers from scurrilously spreading them.

(I will add in links to the quotes when they’re available online.)

Addendum (4/5): This Politico article presents a longer overlap between a passage from Neil Gorsuch’s dissertation-turned-book and a 1984 law-review article by Abigail Lawlis Kuzma than I was aware of when I wrote the above post yesterday evening. It’s still all highly technical medical jargon and very basic facts, in contrast with ideas, arguments, or creative expressions, and Kuzma herself has rejected the charge that Gorsuch plagiarized her. This strikes me, at worst, as the sort of inadvertent mistake that many academics make in compiling materials for book-length dissertations. More broadly, I don’t see how this dispute over 20+-year-old citations has any meaningful bearing on the overall case for Gorsuch’s nomination.

Harry Reid Supports Republican Abolition of SCOTUS Filibuster

by Ed Whelan

Or at least he did back in 2013. From this NTK Network article (with embedded video):

In 2013, then-Senate Leader Harry Reid (D-NV) expressed support for the possibility that Senate Republicans might eliminate the filibuster for Supreme Court nominees during a press conference following the Senate Democrats’ vote for eliminating filibusters for most lower court judges.

“Aren’t you worried Republicans will just get rid of the filibuster on the Supreme Court anyway?” one reporter asked Reid in 2013.

“Let’em do it,” Reid said. “Why in the world would we care? … If they want simple majority, fine.”

“I mean all these threats about we’re going to change the rules more, as Senator Schumer said, ‘What is the choice?’ Continue like we are or have Democracy?” Reid added.

Standing right next to Reid during his comments is current Senate Minority Leader Chuck Schumer (D-NY), who is leading the Democratic effort to block Supreme Court nominee Judge Neil Gorsuch for political reasons.

Re: No Deal on Gorsuch Filibuster

by Ed Whelan

As I explained, I think that concerns that the absence of the Supreme Court filibuster would lead presidents to make extreme Supreme Court picks are misplaced and belied by history. But let’s assume for the sake of argument that those concerns aren’t baseless. It still would make no sense for any Republican senator to strike a deal with Democrats in which he or she would commit not to abolish the filibuster for the next nominee.

Briefly put: The power that a few Republican senators have now to strike a (foolish) deal with Senate Democrats to avoid a filibuster fight on the Gorsuch nomination is the very same power that they would have to join with Senate Democrats to defeat a hypothetical “extreme” next nominee. So why confer on Senator Schumer and other Democrats a preemptive veto on any next nominee, even if that nominee turns out to be someone you strongly support? The intelligent move is instead to hold on to the free option and exercise it only if and when you face a nominee you can’t support—that is, by voting against that nominee.

No Deal on Gorsuch Filibuster

by Ed Whelan

Why would any Senate Republicans ever agree not to abolish the filibuster on the next Supreme Court nomination in order to get Democrats to agree not to filibuster the Gorsuch nomination? The very fact that Senate Democrats have the votes to filibuster Gorsuch shows that they will filibuster any plausible next nominee. So the “deal” that some are floating would simply confer on Chuck Schumer and his fellow Democrats a preemptive veto over the next nomination. What possible sense does that make?

As I’ve explained, claims that the Supreme Court filibuster is part of Senate tradition are utterly wrong. No Supreme Court nominee has ever been defeated by a partisan filibuster. The filibuster of Supreme Court nominees was theoretically possible under Senate rules from 1789 until 1949, but never happened.* And despite the fact that any single senator has since 1949 had the power to require a cloture vote on a Supreme Court nomination, there has been a grand total of four cloture votes on the more than 30 Supreme Court nominations since 1949. In short, on an accurate understanding of the Senate’s dominant traditional practice, abolition of the filibuster for Supreme Court nominees would ensure the continuation of that traditional practice.

Abolition of the Supreme Court filibuster would not threaten the legislative filibuster, which arose and exists for its own reasons. As I’ve discussed, the long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently. Ironically, by wrongly insisting that the legislative filibuster and the nominations filibuster are linked, defenders of the legislative filibuster undermine their own cause.

Concerns that abolishing the filibuster would lead presidents to make extreme Supreme Court picks are also misplaced. That didn’t happen during the long period when the filibuster was regarded as completely off the table, much less during the 160 years when it wasn’t even a formal option. The simple fact is that ordinary politics — e.g., the interest in securing a solid Senate majority, the desire for public acclaim — amply constrains a president’s discretion in selecting Supreme Court nominees.

Bottom line: NO DEAL on avoiding a filibuster.

* I have corrected a mistaken version of the pre-1949 situation.

This Day in Liberal Judicial Activism—April 4

by Ed Whelan

1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote. On the Court from 1939 until 1975, Douglas will become the longest-misserving justice in history.

Supreme Court Should Strike Down California’s Forced-Advertising Law

by Kevin Theriot

What if a state forced all of its citizens to display a message on their cars that reads, “Live Free or Die”? George and Maxine Maynard were in just that position and objected to the phrase both politically and religiously, so they didn’t want the government to force them to display it on their vehicle. The Supreme Court agreed and ruled in their favor in 1977’s Wooley v. Maynard decision — an outcome that would have been even easier for the Maynards to achieve if the state of New Hampshire had been foolish enough to require only those who disagree with the message to display it.

But what state would ever do that? California would — and does.

The Reproductive FACT Act, AB 775, targets pro-life pregnancy-care centers because they “discourage” abortion. That’s not an allegation; the state admits this to be the case. The law forces these centers to advertise for the abortion industry by requiring the display of a message informing women how to obtain a free or low-cost abortion from the state — including a phone number to call. Women who call that number and ask about obtaining an abortion are referred to Planned Parenthood and other organizations that perform abortions.

The state claims it is justified in forcing the pro-life centers to present a message that contradicts the very reason they exist because a center somewhere might decide to be deceptive in the counsel it gives to women. But no one ever submitted any proof to the legislature indicating pregnancy care centers in California are actually tricking women. And no one has ever found that any of the more than 100 pregnancy-care centers that are members of the National Institute of Family Life Advocacy have ever deceived women.

This demonstrates that California’s likely real motivation is to discourage the pro-life message that these pregnancy-care centers express, so it is coopting them to convey its own pro-abortion message. This is no different than the state of New Hampshire forcing George and Maxine Maynard to advertise its message in an effort to convey state pride, except it’s even more egregious because New Hampshire applied its rules to everyone who owns a car. California has purposely crafted its law to apply only to organizations that disagree with its message.

That’s why NIFLA asked Alliance Defending Freedom to file a lawsuit on its behalf to have the law declared unconstitutional. To date, both the federal district court and the U.S. Court of Appeals for the Ninth Circuit have refused to keep the law from being enforced against NIFLA and its pro-life pregnancy-care center members. So now ADF has asked the U.S. Supreme Court to take up NIFLA’s case.

The justices may very well decide to review the case because other federal courts in New York, Maryland, and Texas have found similar laws unconstitutional. Supreme Court guidance is needed to provide legal consistency in jurisdictions across the country.

California can use its authority — and even tax dollars — to convey its support for abortion through a number of means, including billboards, newspapers, radio, television, and the Internet. There is no need to force non-profit organizations dedicated to offering women alternatives to abortion to advertise for the abortion industry.

The Supreme Court should strike down this unjust law just as it struck down New Hampshire’s law that forced citizens, including the Maynards, to advertise the state’s preferred message. If they didn’t have to display the government’s words on their car because they considered it to be a message of death from the mouth of the state, then there’s no reason at all to specifically require a pro-life pregnancy-care center to do the same.

— Kevin Theriot is senior counsel with Alliance Defending Freedom, which represents the National Institute of Family Life Advocacy.

Reid Staffer’s Inane Attack on McConnell—Part 2

by Ed Whelan

Continuing (and numbering serially from) my Part 1 post:

4. Former Reid staffer Adam Jentleson also claims that when Senate Democrats in November 2013 first abolished the filibuster for lower-court and executive-branch nominations, “they did so in the face of obstruction on a far greater scale than anything [Mitch] McConnell has faced as majority leader.”

This is a badly confused argument. For starters, as I detail here, Senate Democrats in November 2013 resorted to nuking the filibuster on lower-court nominations even though Senate Republicans had filibustered President Obama’s nominees much less than Democrats had done for President George W. Bush’s nominees. Harry Reid, for example, voted against cloture at least 25 times on 13 different nominees of George W. Bush, yet he was outraged that Republicans had defeated a grand total of seven cloture motions on Obama nominees.

Second, Jentleson recycles Reid’s lie that McConnell “had unleashed nearly 500 filibusters” on legislation and nominations combined. But back in 2013 the Washington Post’s Glenn Kessler awarded an earlier version of this claim three Pinocchios. As Kessler explained, Reid “often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down”—and then tried to count his own cloture motions as Republican filibusters. As the Congressional Research Service has explained, “Cloture motions do not correspond with filibusters.”

Third, what is most relevant to the abolition of the Supreme Court filibuster is the obstruction of Senate Democrats on the Gorsuch nomination.

5. It’s also worth having in mind that the real reason that Senate Democrats did not include Supreme Court nominations in their nuking of the filibuster in November 2013 is that abortion groups were afraid that that change would make it easier for nominees who opposed Roe v. Wade to get confirmed. As Roll Call reported back then:

There’s long been concern among some supporters of abortion rights about deploying the nuclear option for lifetime appointments to the federal bench, because a Republican White House could team up with a future GOP-led Senate to confirm judicial nominees hostile to the landmark Roe v. Wade decision.

Far better, the abortion groups calculated, to defer abolition until you were in the middle of a fight in which you knew that abolition would help a pro-Roe nominee.

As I observed at the time:

It would be funny indeed if folks on the Left who evidently rue Senate Democrats’ opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.

I have to wonder whether Jentleson’s incoherent and incendiary attack on McConnell is driven by his desire to distract attention from his own role in assisting Reid in paving the way for the abolition of the Supreme Court filibuster.

No, Gorsuch Is Not a Radical on Chevron

by Trevor W. Ezell

In a recent essay published in the Stanford Law Review Online, a classmate and I took a detailed look at Judge Gorsuch’s administrative-law jurisprudence, including his view of deference to administrative agencies. As Senate Democrats move to filibuster the nominee, I’m disappointed by the media’s coverage of Gorsuch and his views on Chevron deference — so much so that I’m neglecting my law-school exams to write this.

Judge Gorsuch is not a radical on Chevron deference — in part because no one really likes it anymore. Still, countless commentators have suggested that Gorsuch is more radical than Justice Scalia on the issue, tacitly (or openly) assuming the Chevron doctrine has a clear political valence. But the notion that the Chevron debate splits along a “partisan divide” is, frankly, too facile an explanation to merit serious discussion. Other commentators — not to mention recent history — have demonstrated that executive deference is a two-edged sword when the person in charge of the agency changes.

The contention that Judge Gorsuch is a departure from Justice Scalia, who initially championed Chevron, is a serious one. But as my classmate and I argue, the difference between Justice Scalia and Judge Gorsuch is not so great because Scalia himself may have been shifting ground. Just last November, Justice Alito spoke at the Federalist Society’s National Lawyers Convention and stated that Justice Scalia was “rethinking the whole question of Chevron deference.” While we can’t know for sure, Justice Scalia’s administrative-law jurisprudence supports that inference. For instance, he insisted on restricting Chevron’s application in the first instance and excoriated decisions like Brand X and Auer, which seem like natural outgrowths of the Chevron regime.

What was true of Justice Scalia is true of other justices as well. If Chevron is a sort of default rule, judges of all stripes are clamoring to chip away at the edges of the default position. For example, Justice Stevens and Justice Breyer wrote separately in Negusie v. Holder, to state that agencies should not be entitled to deference on “pure questions of statutory interpretation.” But that view sounds a lot like the one that prevailed in the world before Chevron. And any law student will tell you the hornbook summation of Chevron’s doctrine is that agencies are entitled to deference when implementing ambiguous statutes — which amounts to a question about what a statute means. An honest observer would be hard-pressed not to admit that Chevron has few champions today — and may even be a giant collapsing under its own weight.

Don’t take my word for it. Just last month, the sitting justices themselves raised serious questions about the doctrine during oral argument in Esquivel-Quintana v. Sessions. That case asks whether an individual’s conviction for statutory rape constitutes the “aggravated felony” of “sexual abuse of a minor” for purposes of removal under the Immigration and Nationality Act. Although the Court could easily answer that question without venturing into the quagmire of administrative law, the justices went out of their way to express views on Chevron’s application to statutes with criminal applications. In fact, they seemed to be teasing out one another’s views in anticipation of a new colleague . . . 

Justice Alito initially endorsed the view espoused by Judge Sutton in his concurrence to the Sixth Circuit’s opinion. That Chevron cannot apply to statutes with both civil and criminal applications, said Justice Alito, is “an appealing argument when you say it fast.” But he ultimately concluded there may not be “anything odd about having the same phrase interpreted using a different methodology in a civil case and in a criminal case.” Justice Kagan, on the other hand, assumed that differing constructions of the same statute in the civil and criminal contexts creates a conflict that must be averted. Accordingly, she suggested the ambiguity thresholds might differ for Chevron and the rule of lenity, which directs that ambiguous criminal statutes be construed in favor of a defendant. The two doctrines could be triggered at different points in the textual analysis and, therefore, need not conflict. And when a statute is ambiguous under Chevron, but not lenity, “the Court gets to decide.” Chief Justice Roberts thought this didn’t solve the problem. He argued that, regardless of whether substantive canons — such as lenity — apply before or after Chevron’s first step, lenity and Chevron “each point in the opposite direction based on the same predicate.”

Justice Breyer and Justice Kennedy then offered their own opinions on the broader question of Chevron deference, untethered to the instant issue of the doctrine’s application to hybrid civil-criminal statutes. Most significantly, Justice Breyer delivered what he styled a mini “lecture” on administrative law, suggesting that Chevron is only a rule of thumb for application to particular kinds of statutes. Chevron, he said, “is not a rule of tax law.” So, the type of deference an agency deserves “will vary depending on the statute.” Justice Kennedy likewise favored some limitation on administrative deference. But rather than asking what sort of deference “a reasonable legislature” intended to confer upon an agency, Justice Kennedy suggested that Chevron might apply only where “an agency . . . has special expertise.”

Only Justice Sotomayor appeared resolutely concerned about the possibility of limiting Chevron. She worried that a lenity-trumps-Chevron rule could swallow administrative deference completely since so many statutes have both civil and criminal applications. In fact, “[a]lmost all of them do,” she argued. “So where would Chevron be then?”

Indeed, it’s a fascinating question — where Chevron will be, say, five years from now. But asking Judge Gorsuch where he stands will only provide a partial answer. A sober assessment recognizes that the state of affairs looks more like a Yogi Berra one-liner: There are so many radicals these days; no one is extreme anymore.

— Trevor W. Ezell is a J.D. candidate at Stanford Law School. Disclosure: He participated in Stanford Law School’s Supreme Court Litigation Clinic, which represented the petitioner in Esquivel-Quintana v. Sessions.

Reid Staffer’s Inane Attack on McConnell—Part 1

by Ed Whelan

Adam Jentleson, a former deputy chief of staff to Senator Harry Reid, has penned—and the New York Times, showing once again that it has no standards, has published—a ridiculous op-ed titled “Mitch McConnell’s Nuclear Trigger Finger.” Jentleson alleges that Senate majority leader Mitch McConnell “appears to be itching to pull the trigger” on abolishing the filibuster for Supreme Court nominees, “and in his insidious way, he wants to convince Democrats that it’ll be their fault when he does.” Jentleson contends that abolishing the filibuster “would be a hugely disproportionate response to reasonable Democratic opposition.”

Some observations in this post and the next (elaborating a tweet thread from this morning):

1. Given his charge that McConnell has an itchy trigger finger, it’s astounding that Jentleson doesn’t acknowledge that just last October, when Reid was anticipating a President Hillary Clinton and a Democratic majority in the Senate, Reid promised that Democrats would nuke the Supreme Court filibuster if Senate Republicans dared to obstruct a Hillary nominee. From a Talking Points Memo article titled “Harry Reid’s Parting Shot: Dems Will Nuke The Filibuster For SCOTUS” (underlining added):

Outgoing Senate Minority Leader Harry Reid (D-NV) said he is confident that he has laid the groundwork for Democrats to nuke the filibuster for Supreme Court nominees if they win back the Senate in November.

Envisioning Hillary Clinton in the White House and Democrats controlling the Senate, Reid warned that if a Senate Republican minority block her Supreme Court nominee, he is confident the party won’t hesitate to change the filibuster rules again.

Such a move would be an extension of what Reid did in 2013 when he was still majority leader, eliminating filibusters (with a simple majority vote) on the President’s nominees. There was only one exception: the Supreme Court. As it stands now, Democrats still need 60 votes to move forward with a Supreme Court nominee.

Reid said, however, that could change.

“I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ‘em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again,” Reid told TPM in a wide-ranging interview about his time in the Senate and his legacy.

“They mess with the Supreme Court, it’ll be changed just like that in my opinion,” Reid said, snapping his fingers together. “So I’ve set that up. I feel very comfortable with that.”


Other Senate Democrats were equally candid. As the Huffington Post reported in an article titled “Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won’t Cooperate”:

Vice presidential candidate Tim Kaine warned on Thursday that his party would move to eliminate rules allowing a minority of Senate Republicans to block Supreme Court nominees should they refuse to consider those nominated by a future president Hillary Clinton….

“If these guys [Senate Republicans] think they’re going to stonewall the filling of [the existing Supreme Court] vacancy or other vacancies, then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law.’”

Democrats, Kaine ultimately predicted, “will change the Senate rules to uphold the law.” 

And from Bloomberg:

[Senator Amy] Klobuchar, and fellow Judiciary Committee member Sheldon Whitehouse of Rhode Island in a separate interview Monday, agree with what Clinton’s running mate, Tim Kaine, told the Huffington Post — that a Senate Democratic majority would likely change the rules if needed to prevent Republicans from keeping the vacancy indefinitely.

“I don’t think we’ll have a choice,” she said, if Republicans line up to filibuster Clinton’s picks. “My hope is we won’t get there.”

So look who’s actually been trigger-happy.

2. By contrast, Mitch McConnell, to the consternation of some conservatives, has consistently declined to answer questions about whether he’d move to abolish the filibuster and instead has repeatedly said merely that, one way or another, the Senate will confirm the Gorsuch nomination. Had a mere nine Democrats decided to support cloture on an overwhelmingly qualified nominee, there is no way that McConnell would be pursuing filibuster abolition on this nomination. It’s only the Democrats’ insistence on filibustering the Gorsuch nomination—a decision that Jentleson evidently supports—that tees up abolition of the Supreme Court filibuster.

3. Beyond the fact that his former boss and other Senate Democrats have embraced what Jentleson now labels “a hugely disproportionate response,” it’s telling that Jentleson never suggests some lesser alternative that McConnell would pursue that would be effective. How can Jentleson label something “hugely disproportionate” when he can’t propose anything that he would consider a more proportionate response?

More in Part 2.

This Day in Liberal Judicial Activism—April 3

by Ed Whelan

2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators. Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.” In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” Conrad’s nomination will expire months later without his ever receiving a hearing.

2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”

Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.” An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998. But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government. Or, as the court puts it in activist gobbledygook:

“The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”

This Day in Liberal Judicial Activism—April 2

by Ed Whelan

2007—In Massachusetts v. EPA, the Supreme Court rules by a 5-4 vote, that the state of Massachusetts has standing to challenge the Environmental Protection Agency’s denial of a petition to begin regulating “greenhouse gases.” Justice John Paul Stevens’s majority opinion further rules that the EPA unlawfully declined to exercise regulatory authority over such gases.

Chief Justice Roberts and Justice Scalia each write for the four dissenters. Roberts observes that the majority has no support for its claim that Massachusetts is “entitled to special solicitude” in the analysis of standing. Its status as a state, he explains, “cannot compensate for [its] failure to demonstrate injury in fact, causation, and redressability.” The majority having decided otherwise, Scalia disagrees with its assessment of the EPA’s action:

“The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”

2015—“Judicial-identity disorder” is a condition that afflicts judges who experience significant discontent with the role they were assigned when they took office. JID typically manifests itself in judicial decisions that are inconsistent with the judicial role and in behavior that reflects a severe and pervasive discomfort with neutrally applying the law. Unfortunately, no effective treatment for the condition is currently available.

Federal district judge Jon S. Tigar, appointed by President Obama in 2013 to the Northern District of California, quickly joins the ranks of judges manifesting symptoms of JID, as he issues an order ruling that a California prisoner, Jeffrey Norsworthy, is likely to succeed on the merits of his claim that prison officials have violated his Eighth Amendment rights by not providing him sex-reassignment surgery. Tigar orders the state to “take all of the actions reasonably necessary to provide Norsworthy sex reassignment surgery as promptly as possible.”