Who is Mark Bennett?

by Carrie Severino

Mark Bennett is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from Hawaii.

Age: 64 (approximate)

Current Position: Director, Starn, O’Toole, Marcus & Fisher (Honolulu, HI)

Education:

  • B.A. Union College (1976), summa cum laude
  • J.D., Cornell University School of Law (1979), magna cum laude; Editor, Cornell University Law Review

Judicial Clerkships: Judge Samuel Pailthorpe King, U.S. District Court for the District of Hawaii (1979-80)

Experience:

  • 2010-Present: Director, Starn, O’Toole, Marcus & Fisher (Honolulu, HI)
  • 2003-2010: Attorney General of Hawaii (Honolulu, HI)
  • 1991-2002: Partner, McCorriston Miller Mukai MacKinnon LLP (Honolulu, HI)
  • 1982-1989: Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Hawaii (Honolulu, HI)
  • 1980-1982: Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia (Washington, D.C.)

Notable Matters:

  • In 2003, Governor Linda Lingle appointed Mr. Bennett Attorney General of Hawaii. Mr. Bennett was the first attorney general appointed by a Republican governor since the governorship of William F. Quinn, the first elected governor of Hawaii.
  • Mr. Bennett has argued and briefed numerous cases before the U.S. Court of Appeals for the Ninth Circuit and the Hawaii Supreme Court. Mr. Bennett has also argued cases before the U.S. Supreme Court in Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009), and Lingle v. Chevron, 544 U.S. 528 (2005). As an AUSA in Washington D.C. and Honolulu, Mr. Bennett litigated both criminal and civil cases.
  • In private practice, Mr. Bennett specializes in complex litigation, appellate litigation, antitrust, and government relations. He has tried numerous complex jury trials, and negotiated settlements worth $1 billion.
  • Before becoming Attorney General of Hawaii, Mr. Bennett served the state pro bono as a special deputy attorney general and a special assistant prosecuting attorney.

Awards:

  • Best Lawyers in America (Antitrust Law, Antitrust Litigation, Appellate Practice, Bet-The-Company Litigation, Government Contracts, Environmental Litigation, Insurance Litigation and Commercial Litigation); “Lawyer of the Year” in Honolulu (2015-2018); Top 25 Hawaii Super Lawyers (2011-2018)
  • Mr. Bennett is a recipient of the U.S. Department of Justice Leadership Award (2009); the Hawaii Law Enforcement Elwood J. McGuire Award for Contributions to Law Enforcement (2007); and the Attorney General’s Special Achievement Award (1986)

Professional Affiliations: Mr. Bennett is a fellow of the American College of Trial Lawyers

Atlanta Event on Scalia Speaks

by Ed Whelan

After my several events this week in southern California, I’ll be in Atlanta next Tuesday, February 20, to discuss Scalia Speaks with the Atlanta lawyers chapter of the Federalist Society. More information on the noontime event is here.

This Day in Liberal Judicial Activism—February 12

by Ed Whelan

2015Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.

Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state marriage laws wouldn’t be accepted by the country. (Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what the American public will acquiesce in are closely linked to her view of what the Court should impose.)

This Day in Liberal Judicial Activism—February 10

by Ed Whelan

1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

NYT Op-Ed Smears CA5 Nominee Kyle Duncan

by Ed Whelan

Laverne Thompson, the author of a New York Times op-ed attacking Fifth Circuit nominee Kyle Duncan, is the victim of a grievous injustice. Her husband John Thompson was convicted of armed robbery and murder, and spent eighteen years in prison, including fourteen years on death row, as a result of a prosecutor’s deliberate suppression of exculpatory evidence. But the horrible suffering that she and her husband endured does not remotely justify her ill-founded and bizarre attack on Duncan.

Duncan argued and won a Supreme Court ruling, Connick v. Thompson (2011), holding that the district attorney’s office that employed the rogue prosecutor could not be held liable under 42 U.S.C. § 1983 for failure to train based on a single violation of the Brady rule (which requires prosecutors to disclose exculpatory evidence to defense counsel). Far from condoning the actions of the rogue prosecutor, Duncan repeatedly emphasized that Mr. Thompson had been “grievously injured” by the “flagrant” Brady violation and that he deserved the maximum compensation available under the state’s wrongful-conviction statute.

Mr. Thompson’s federal civil-rights case against the district atttorney’s office involved very different legal issues. Under the settled law of municipal liability under section 1983, the district attorney’s office was not vicariously liable for the wrongdoing of its employees. The theory of liability that Mr. Thompson relied on was instead that the office had failed to train its prosecutors adequately and that that failure had caused his injury. But, as the Supreme Court explained in overturning the jury verdict in favor of Mr. Thompson, a claim based on failure to train must typically be proven by a “pattern of similar constitutional violations” by employees that is sufficient to put the office on notice that its training regimen is deficient. Duncan argued, and a five-justice majority agreed, that Mr. Thompson had failed to establish a “pattern of similar Brady violations” that would have placed the office on notice that it should remedy it training practices.

It is difficult to discern Mrs. Thompson’s objection to Duncan’s arguments, beyond the fact (which ought to accrue to his credit) that those arguments prevailed. The one specific charge she makes is that he “devised the argument that, although the district attorney had withheld evidence in many cases involving innocent men, there was no need to train lawyers in his office because they would have learned about their obligation in law school.” I see nothing in his brief that can fairly be reduced to that argument.

The ABA rated Kyle Duncan “well qualified” for the Fifth Circuit. (A “substantial majority” of the committee rated him “well qualified,” and a minority rated him “qualified.” As the ABA explains, “the majority rating is the official rating.”) Opponents of his nomination had two months before his hearing to try to make their case against him and another six weeks before the Senate Judiciary Committee favorably reported his nomination to the Senate floor. The sort of desperate last-ditch smearing that Mrs. Thompson has unfortunately been persuaded to commit is as ugly as it is baseless.

Re: Empty USCCB Amicus Brief in Public-Sector Union Dues Case

by Ed Whelan

As I stated in the third point in my initial post, the USCCB amicus brief in Janus v. AFSCME invites the dangerous misperception that it considers right-to-work laws in the public sector to violate Catholic social teaching as severely as laws imposing abortion and same-sex marriage do.

Indeed, the Religion News Service reported that the “bishops equated the effect of a ruling against the unions to the landmark high court decisions, Roe v. Wade and Obergefell v. Hodges.” (Emphasis added.) [Following an exchange with the reporter, I have altered the preceding sentence and the transition in the next.]

Lefty religion professor Mark Silk asserts that the “bishops’ most striking argument is based on their unhappiness” with Roe and Obergefell and declares, “Now there’s an argument for the conservatives on the Court to reckon with.” But as I pointed out in my first post, the USCCB brief does not actually make any legal argument and is instead nothing more than special pleading. So no one on the Court should have any difficulty dismissing the USCCB’s plea.

In his piece, Silk manages to get just about everything backwards. He suggests, for example, that a priest awakening from a 20-year nap wouldn’t be surprised that the USCCB is backing public-sector unions. But (per point 2 in my first post) only someone who has been in a long and deep slumber would assume that Catholic teaching against the exploitation of labor by capital would call for the bishops to support public-sector unions, which operate against fundamental Catholic causes and at the expense of working men and women in the private sector.

Silk also cites the USCCB brief for the proposition that (in his words) “there’s a long-standing exemption for any employee whose religious beliefs keep her from joining a union.” But he grossly misstates things. The federal exemption that the USCCB brief cites and quotes protects only employees who are members of a religion that “has historically held conscientious objections to joining or financially supporting labor organizations.” That’s no help to a Catholic employee who has religious objections to joining a union because it supports abortion. The Illinois law that the USCCB brief cites seems similarly restrictive and would also require the exempt employee to redirect the fee amount to a charity approved by the union.

Empty USCCB Amicus Brief in Public-Sector Union Dues Case

by Ed Whelan

[Cross-posted on The Corner]

On February 26, the Supreme Court will hear oral argument in the much-watched case of Janus v. AFSCME. The United States Conference of Catholic Bishops has submitted an amicus brief in Janus. Both as a Catholic and as a lawyer, I find the USCCB’s brief badly misguided in important ways.

The legal issue in Janus is whether, consistent with the First Amendment, government employees who refuse to join the public-sector union that has been recognized as their representative for purposes of collective bargaining may nonetheless be compelled to pay the union a fee (a so-called “agency fee”) to cover their share of the union’s collective-bargaining expenditures, even when those employees object to the union’s political advocacy and lobbying.

To illustrate the issue more concretely: In 2014, the American Federation of State, County, and Municipal Employees (AFSCME) donated $400,000 to the Planned Parenthood Action Fund, which in turn funded political candidates who support Planned Parenthood’s abortion agenda. May a government employee who is a faithful Catholic, as a condition of continued employment, be required to pay AFSCME a monthly agency fee?

The USCCB amicus brief would have you believe that the “widely held” position of American bishops is to answer “yes” to the question whether agency fees may be imposed on government employees.

The USCCB’s amicus brief suffers from three serious defects:

First: The brief itself is nothing more than special pleading—asking that the (supposed) position of “so many bishops” against right-to-work laws in the public sector not be declared “constitutionally out of bounds.” The brief does not offer any legal argument why agency fees in the public sector are constitutionally permissible. Indeed, the words “First Amendment” do not appear a single time in the brief. [Update: I now see that “Free Speech Clause” appears three times, so I’m striking the preceding sentence.]

Second: The brief derives the supposed “widely held” position of American bishops by stitching together a handful of statements of dubious relevance that were made over a period of seven decades. You might think that the actual position of American bishops today could be ascertained by asking them. But there is no evidence in the brief that the question was ever put to them.

To be clear: I don’t dispute at all—indeed, I embrace—the brief’s statement that, beginning with Pope Leo XIII’s 1891 encyclical Rerum Novarum, the “social doctrine of the Catholic Church has contained ‘repeated calls … for the promotion of workers’ associations that can defend their rights.’” I likewise agree that “the Catholic bishops of the United States have consistently affirmed and defended the right of workers to organize, precisely in service to [the] values” of protecting “both the poor and vulnerable from exploitation, and the right of association from governmental infringement.” (Emphasis in original.) What I question is how these principles apply to whether public-sector unions today should be able to extract agency fees from objecting nonmembers.

The USCCB brief pays zero attention to this question. When one thinks of Catholic concern for workers exploited by “capital” (Rerum Novarum is titled “Rights and Duties of Capital and Labor”), government workers hardly fit the bill. Yet the brief treats any statement that generally opposes right-to-work laws as though it would specifically oppose right-to-work laws governing the public sector.

The USCCB brief also seems to assume that public-sector unions are the “good” unions that Pope Francis says are part of a good society. Why that would be so is a mystery. Beyond their staunch support for abortion, public-sector unions steadfastly oppose school choice and thus deprive many poor children of a Catholic education far superior to that in failing inner-city public schools. Indeed, the bloated salaries and pensions that public-sector unions so often extract are ultimately at the expense of working men and women in the private sector, whether in the form of higher taxes or diminished public services. Illinois, the state in which Mr. Janus is employed, is on the verge of bankruptcy because of the too cozy relationships between public-sector unions and state politicians.

In its quest to pad its list of bishops’ statements against right-to-work laws generally, the USCCB brief also relies heavily on statements that were not in fact by bishops—such as a 1947 statement by the “Social Action Department of the National Catholic Welfare Conference” and the 1965 testimony of the NCWC’s Social Action director, Msgr. George Higgins.

At bottom, the brief does not remotely support the proposition that the American bishops have “widely held” the position that right-to-work laws in the public sector are unjust to government workers. Indeed, it provides no evidence that any bishop has ever taken that highly dubious position.

Third: The USCCB brief also invites the dangerous misperception that it considers right-to-work laws in the public sector to violate Catholic social teaching as severely as laws imposing abortion and same-sex marriage do. Twice (pp. 2 and 13) the brief cites Roe v. Wade and Obergefell v. Hodges—and only those two cases—in lamenting that a ruling against AFSCME “would represent another unfortunate decision of this Court that marginalizes the voice of the bishops with respect to an important public policy debate by declaring their position to lie beyond the constitutional pale.” (That’s from page 13; the passage from page two is similar.)

To be sure, the attentive reader will discern that the brief implicitly recognizes that how best to defend the legitimate rights of workers is, unlike the matters of abortion and marriage, a matter of prudential judgment on which Catholics can in good faith disagree. But it’s no surprise—indeed, it’s entirely predictable—that those not well versed in Catholic teaching will imagine that the American bishops, through the USCCB brief, are now putting all three matters on the same moral plane. Why would the USCCB sow such confusion?

This Day in Liberal Judicial Activism—February 9

by Ed Whelan

2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson—issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.”

Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”

In May 2011, by a 5-4 vote (in Brown v. Plata), the Supreme Court will affirm the district court’s judgment.

In the aftermath of the Court’s ruling, the district court will repeatedly be forced to extend its deadline for compliance with its ruling. Only in March 2016—nearly five years after the Court’s ruling—will the district court determine that California is in compliance. Even then, the district court will retain control over the matter and require California to submit monthly reports.

A Little Case with Big Implications

by Stephanie Barclay

A little-known case just concluded this week, but it has big implications for the important national dialogue taking place right now about how we, as a society, navigate conflicts related to faith and sexual identity. In Myrick v. Warren, a federal judge ruled that the State of North Carolina violated federal law when it forced one of its magistrates to resign because of her religious beliefs about marriage. The judge’s ruling comes ahead of the Supreme Court’s decision in Masterpiece Cakeshop v. CCRC, a case that also raises questions about conscience and LGBT rights.

First, the facts: When same-sex marriage became legal in North Carolina, a state magistrate named Gayle Myrick didn’t want to stop anyone from getting married. She recognized that gay marriage was the law of the land. But her religious beliefs prevented her from personally performing same-sex wedding ceremonies. Since performing any wedding ceremonies was such a small portion of her regular work, she hoped there was a simple way that she’d be able to continue her job without having to perform that task.

Luckily, Gayle’s immediate supervisor proposed a solution — simply shift Gayle’s schedule by a couple hours so she wouldn’t even be working during the set times marriages were performed in her office. Gayle’s employer frequently accommodated magistrate’s schedules for a myriad of reasons, from something as simple as a soccer game, to other issues like attending drug rehab, night school, and religious holidays.

This minor scheduling adjustment was a reasonable solution. Every couple could get married without facing delay or rejection, and Gayle could keep doing the job she does best.

Unfortunately, the state government rejected this solution. Gayle would have easily been accommodated if she had requested to change her schedule for just about any other reason. But because her request was motivated by religious beliefs, she was targeted and forced to resign.

In a ruling that just became final, a federal judge ruled that Gayle shouldn’t have had to face this difficult choice. Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship.” If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, then the employer must accommodate them. And at the very least, the employer must explore whether an accommodation would be possible. In Gayle’s case, the state wasn’t willing to even do that. That’s why the federal judge said that when the state government refused to even consider the many solutions available, solutions offered to other employees, it violated Title VII.

The government later admitted that it had treated Gayle unfairly, and it just recently finalized a substantial settlement to make Gayle whole and give back the pay and retirement benefits that were unjustly taken from her.

In one sense, Gayle’s case is just an ordinary application of Title VII protections. But in another sense, it is a landmark ruling. In the fraught context of gay rights and religious liberty, solutions like this have been in short supply. In this case, the judge found a way to protect the dignity of both sides.

At bottom, the time-honored requirement of the Civil Rights Act encourages employers to do lots of things in the workplace to ensure people of all backgrounds are valued, respected employees. This principle is a good thing for our country’s pluralistic workforce. It has allowed Muslim workers to take breaks for daily prayer, pacifist postal workers to avoid processing draft cards, and vegan government bus drivers to skip passing out coupons for meat products, to name just a few examples. Gayle’s court victory reinforces that this important principle is still alive and well, even in cases where emotions can run high. Regardless of whether we agree with Gayle’s beliefs, we should all be glad that the laws of our country require employers to create an accommodating workplace, and to do so in an evenhanded way that doesn’t allow targeting of some disfavored groups. Such laws protect the diversity and dignity of everyone.

— Stephanie Barclay is legal counsel at the Becket Fund for Religious Liberty, and she will also be joining BYU Law School as an Associate Professor of Law this fall.

Southern California Events on Scalia Speaks

by Ed Whelan

I return to my native southern California next week for a series of events on Scalia Speaks and Justice Scalia’s legacy.

On the evening of Tuesday, February 13—the second anniversary of Scalia’s death—I will speak to the Orange County chapter of Legatus.

At noon on Wednesday, February 14 (which doubles this year as Valentine’s Day and Ash Wednesday), I will take part in “Recollections of Justice Scalia,” sponsored by the Los Angeles lawyers chapter of the Federalist Society. Judge Carolyn Kuhl and former Scalia law clerks Dan Collins and Henry Weissmann will also take part. (I am assured that plenty of small tuna sandwiches will be available for those observing the Ash Wednesday fast and abstinence.)

At noon on Thursday, February 15, I will discuss Scalia Speaks with the Orange County lawyers chapter of the Federalist Society. More info here.

At noon on Friday, February 16, I will do the same with the San Diego lawyers chapter of the Federalist Society. Info here.

That Friday afternoon and evening, I look forward to taking part in the ninth annual Originalism Works-in-Progress conference sponsored by the University of San Diego law school’s Center for the study of Constitutional Originalism.

 

National Constitution Center Event on Justice Scalia’s Life and Legacy

by Ed Whelan

I greatly enjoyed my discussion of Scalia Speaks yesterday evening with National Constitution Center president Jeffrey Rosen. Here’s a video of our conversation, along with a subsequent panel on Justice Scalia’s legacy that featured Kannon Shanmugam (a former Scalia clerk and leading Supreme Court advocate), law professor Richard Hasen (author of a forthcoming book critical of Justice Scalia’s jurisprudence), and Elizabeth Wydra (head of the progressive Constitutional Accountability Center).

This Day in Liberal Judicial Activism—February 7

by Ed Whelan

2017—In his desperate effort to obstruct the Supreme Court nomination of Neil Gorsuch, Senate minority leader Chuck Schumer continues to propagate the myth that a 60-vote standard exists for Supreme Court nominees. Never mind that even the Washington Post’s Fact Checker has explained that no such standard exists.

Meanwhile, Democratic senator Jeanne Shaheen declares on the Senate floor that neither she nor any of her fellow Democrats she’s talked to have any intention of filibustering the Gorsuch nomination.

Two months later, Shaheen and 43 of her fellow Democrats will vote to filibuster the Gorsuch nomination. But the Schumer-led gambit will backfire spectacularly, as Senate Republicans, following the precedent Democratic leader Harry Reid set in November 2013 on lower-court judicial nominations and executive-branch nominations, will proceed to abolish the filibuster for Supreme Court nominations.

This Day in Liberal Judicial Activism—February 6

by Ed Whelan

1992—Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case. The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality. Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994. The ABA gives Sarokin its highest “well qualified” rating. Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

This Day in Liberal Judicial Activism—February 5

by Ed Whelan

1996—In a muddled speech on the “majesty of the law” at Suffolk University law school, then-district judge Sonia Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law”—indefiniteness that sometimes results from the fact that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for judges to “develop a novel approach” that “pushes the law in a new direction.” Instead, she complains about “recurring public criticism about the judicial process.” The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of [the] liberal ideology of Clinton judicial appointments and [of the] American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges.

This Day in Liberal Judicial Activism—February 4

by Ed Whelan

2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).

2005—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as the union of a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, will reverse this ruling.

2016—A divided Ninth Circuit panel rules, in Smith v. Schriro, that Robert Douglas Smith was intellectually disabled when he committed acts of kidnapping, sexual assault, and murder in 1980. In the opening paragraph of her dissent from Judge Stephen Reinhardt’s lead opinion, Judge Consuelo Callahan observes (emphasis added):

“The one thing everyone appears to agree on is that Smith is not intellectually disabled. When tested in 2005 the experts found that he had an IQ of between 87 and 93, well within the low-average to average range of intellectual ability. Yet despite this fact, the majority reverses because it is certain that Smith was intellectually disabled in 1980 when he murdered Sandy Owen. The majority reaches this conclusion by disregarding the findings of the state courts, denying those courts the deference they are due, and expressing supreme confidence in its own ability to detect past intellectual disability despite substantial conflicting evidence and the fact that Smith is not now intellectually disabled. Accordingly, I dissent.”

This Day in Liberal Judicial Activism—February 3

by Ed Whelan

1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell. Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power. While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous—and are often masked by grandiose rhetorical diversions. To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood v. Casey (1992). Translation: We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” Roper v. Simmons (2005). As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” So begins Justice Kennedy’s majority opinion in Obergefell v. Hodges (2015), inventing a constitutional right to same-sex marriage. Quoting this passage, Justice Scalia laments that the Supreme Court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” 

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Lawrence v. Texas (2003). Translation: We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Ashcroft v. Free Speech Coalition (2002) (emphasis added). It’s odd that Kennedy would think that speech (including opinion-writing?) should precede thinking. The notion is especially odd in a case concerning virtual child pornography.

2010In Perry v. Schwarzenegger—the case challenging California’s Proposition 8 and traditional marriage—the ACLU Foundation of Southern California continues its involvement in the case by filing a post-trial amicus brief on behalf of its national affiliate, the American Civil Liberties Union.

Ramona Ripston, the wife of Ninth Circuit judge Stephen Reinhardt, is the executive director of the ACLU Foundation of Southern California and (per its website) is “responsible for all phases of the organization’s programs, including litigation.” In addition to leading the political opposition to Proposition 8, Ripston engaged in confidential discussions with the lawyers for the Perry plaintiffs about whether they should file the case. And months later, she will publicly celebrate Judge Vaughn Walker’s decision striking down Proposition 8.

Yet when the wonders of not-random-after-all selection assign arch-activist Reinhardt to the Ninth Circuit panel to review Walker’s decision in this very case, Reinhardt somehow will decline to recuse himself. He will instead end up writing the majority opinion in support of (and providing the decisive vote for) a divided-panel holding affirming Walker’s ruling.

This Day in Liberal Judicial Activism—February 2

by Ed Whelan

2009—Ninth Circuit judge Stephen Reinhardt, acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, opines that the federal Defense of Marriage Act is unconstitutional insofar as it requires that federal benefits available to spouses of federal employees not be extended to same-sex spouses. Disguising his administrative misdetermination as a Ninth Circuit judicial order, Reinhardt purports to direct the Administrative Office of the United States Courts to add an employee’s same-sex spouse as a beneficiary.

Unsustainable Forrest-ry

by Ed Whelan

Having previously encountered the wackiness of federal district judge (and Obama appointee) Katherine B. Forrest, I suppose that I shouldn’t be too surprised by her latest. But I am.

Two days ago, in Ragbir v. Sessions, Forrest ordered that the federal government release from its custody an alien, Ravidath Ragbir, who had forfeited his status as a lawful permanent resident and had been ordered deported from this country in 2006 because of his conviction in 2001 on charges of wire fraud and conspiracy to commit wire fraud. Forrest explicitly “agrees [with the government] that the statutory scheme governing [Ragbir’s] status is properly read to allow for his removal without further right of contest”—that it “allows [the government] to do what was done here,” i.e., to have Ragbir “suddenly taken into custody” earlier this month. But without citing any precedent, Forrest, trying to wax poetic, declares:             

There is, and ought to be in this great country, the freedom to say goodbye …, the freedom to hug one’s spouse and children, the freedom to organize the myriad of human affairs that collect over time.

Forrest condemns as “unnecessarily cruel” (and even cites the Eighth Amendment as though it has some bearing on the matter) the fact that “a man we have allowed to live among us for years, to build a family and participate in the life of the community, was detained, handcuffed, forcibly placed on an airplane, and today finds himself in a prison cell.”

“[I]f due process means anything at all,” she tells us, it must require that Ragbir be released so that he can “know and understand that the time has come [for his removal], that he must organize his affairs, and that he do so by a date certain.”

One might well lament that bureaucratic practices often aren’t as sensitive to real-life considerations as they might be. But Forrest’s notion that the Constitution forbids (or “may be so interpreted” to forbid) whatever she regards as unfair is simply lawless. And it seems perverse that, rather than giving the federal government any credit for the four stays of removal that it granted Ragbir since 2011, she invokes those stays only as evidence of the supposed cruelty of the government’s recent detention of him.

Worse, Forrest’s opinion is disingenuous nearly to the point of unintelligibility. Forrest asserts that Ragbir has “lived without incident in this country for years.” Only the very attentive reader will learn, in her eleventh and final footnote in the last paragraph of the body of her opinion, of the reason for Ragbir’s deportation order, his conviction in 2001. Until then, that reader might well have been puzzled over how a lawful permanent resident who had “lived without incident in this country for years” would find himself detained. As a matter of elementary judicial craftsmanship, his conviction should have been part of the basic narrative of the opinion.

 

Hopeful Signs from Stras Confirmation

by Ed Whelan

Back in November, then-Senator Al Franken’s refusal to return a favorable blue slip on President Trump’s nomination of Minnesota supreme court justice David Stras led Senate Judiciary Committee chairman Chuck Grassley to announce that he would not defer to Franken and that he would not allow senators to use the blue-slip process to block nominees for ideological reasons.

To my surprise, Senate Democrats did not use the Stras nomination to register their protest against Grassley’s blue-slip policy. In committee, both Amy Klobuchar (who returned a favorable blue slip on Stras) and Sheldon Whitehouse joined Republicans in favorably reporting the Stras nomination to the Senate floor. On the Senate floor, on both the cloture vote and the final confirmation vote, seven Democrats—Klobuchar, Donnelly, Heitkamp, Jones (recently elected in Alabama), Manchin, McCaskill, and Warner—voted with Republicans in support of the Stras nomination.

While I hesitate to draw grand lessons from a single nomination battle, it would sure seem that Chairman Grassley picked the right nominee to inaugurate his blue-slip policy. Yes, it helped that the initial allegations of Franken’s sexual abuses broke the same day that Grassley announced the policy. But the respect that Stras earned from his state supreme court colleagues across ideological lines, along with Klobuchar’s related decision to support his nomination, made him the ideal test case.

It’s also interesting that six of the seven Democrats (all but Warner) who voted for Stras are up for re-election this November. Their defections from the party line would suggest that, much as the lefty base of the Democratic party might wish otherwise, many voters in the center don’t want to see their senators voting against highly qualified judicial nominees.

 

Scheduled Events (Updated)

by Ed Whelan

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

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

2/2 Charlotte/Federalist Society (Scalia Speaks and judicial nominations)

2/2 Belmont Abbey College

2/5 Capitol Hill Federalist Society (judicial nominations)

2/6 GW law school

2/7 Villanova/Federalist Society

2/7 National Constitution Center, Philadelphia

2/13 Legatus Orange County

2/14 Los Angeles/Federalist Society

2/15 Orange County/Federalist Society

2/16 San Diego/Federalist Society

2/20 Atlanta/Federalist Society

3/7 University of Dallas

3/8 SMU/Federalist Society

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

3/13 San Francisco/Federalist Society (judicial nominations/evening)

3/14 San Francisco (private event/noon)

3/20 Vanderbilt/Federalist Society

3/20 Nashville/Federalist Society

3/21 Houston/Federalist Society

3/21 Houston/St. Thomas More Society

3/22 South Texas College of Law/Federalist Society

3/28 Cincinnati/Federalist Society

3/29 Columbus/Federalist Society

4/5 Akron/Federalist Society

4/5 Case Western/Federalist Society

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

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

4/24 Kansas City/Federalist Society

4/25 University of Missouri/Federalist Society

4/26 St. Louis/Federalist Society

5/4 Supreme Court Historical Society

6/7 Denver/Federalist Society

6/7 Colorado Springs/Mountain States Legal Foundation