This Day in Liberal Judicial Activism—August 3

by Ed Whelan

1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee.

This Day in Liberal Judicial Activism—July 31

by Ed Whelan

1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service. Imagine what he could have accomplished with more time!

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2012—By a vote of 5 to 3, the Missouri supreme court rules (in Watts v. Lester E. Cox Medical Centers) that a statutory cap on non-economic damages in medical malpractice cases violates the right to jury trial set forth in the state constitution. The court overrules its own better-reasoned precedent to the contrary.

 

This Day in Liberal Judicial Activism—July 30

by Ed Whelan

2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before: Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster. On September 4, 2003, Estrada withdraws his nomination.

Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist: “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.” Guess again, senator.

This Day in Liberal Judicial Activism—July 29

by Ed Whelan

1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

This Day in Liberal Judicial Activism—July 28

by Ed Whelan

2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”  

No Court Should Respect a Presidential Self-Pardon

by Matthew J. Franck

In the argument that has broken out over a president’s putative power to pardon himself, I’m going to come down on the opposite side from Andy McCarthy and Mike Paulsen, and on the same side as Laurence Tribe. Thank goodness, for my peace of mind, it’s also the same side Jonah Goldberg is on.

Mike says, in his NRO article today, that “The only limitation set forth in the Constitution is that the president cannot pardon an impeachment conviction.” This is a species of (technical legal vocabulary alert) boneheaded textualism. Most of the rest of Mike’s article makes perfect sense–that impeachment by Congress is the principal check on a corrupt president. But the Constitution, like all legal texts, must be read according to sensible interpretive principles. And one of the most venerable of such principles is the rule against reading any legal text as stating an absurdity–which does not mean “a crazy result I don’t like,” but a self-contradiction.

As Jonah points out, the framers were aware of the ancient norm that “no man is allowed to be a judge in his own cause.” (The line is from Madison’s Federalist No. 10, but the context is that in legislative chambers, such a phenomenon is an unavoidable reality, though we wouldn’t tolerate it in a courtroom.) A pardon is one of the checks and balances built into our constitutional order. Such checks are literally the participation by one branch in the business of another. Hence the presidential veto is actually a legislative power. Likewise the pardon is a president’s share of judicial power, for pardons are meaningful only in one place: a court of law.

Just as we would not recognize a self-acquittal by a judge presiding over his own criminal trial, we ought not–courts ought not–recognize a president’s self-pardon. Andy calls the pardon “a judicially unreviewable act of executive discretion.” Now this is actually a textually insupportable statement. Courts alone are the agents that finally effectuate every pardon, and a president’s self-pardon is eminently reviewable. I would go still further: a president’s grant of a pardon to others, in the course of committing impeachable and criminal offenses, need not be respected by the courts in every instance.

Consider this scenario. The president has been bribed to veto a piece of legislation. A special prosecutor is sniffing around the transaction. The president pardons the individual who bribed him, and for good measure pardons himself. The House of Representatives impeaches the president for bribery, and throws in a second and a third article of impeachment giving his corrupt uses of the pardon power (for himself and another) as additional grounds for his removal. The Senate votes by the requisite two-thirds margin on all three articles of impeachment to remove the president. Congress has thus, by the most solemn process, pronounced the pardon power to have been unconstitutionally used this time.

Only a corrupt or incompetent judiciary would regard either man–the president or the crook who bribed him–as beyond the reach of the criminal law regarding bribery. It would be, in the words of John Marshall in Marbury v. Madison, “an absurdity too gross to be insisted on.”

And if, as Mike Paulsen argues, the president’s power is “plenary” in the sense of uncontrollable, so too is the judiciary’s power to disregard an attempted but constitutionally absurd use of the pardon power. For as I said above, pardons are effectuated in just one place–courts of law–and who shall say nay to the judiciary’s simple refusal to honor a president’s self-pardon? No one, that’s who.

The Plenary Pardon Power (and the Powerful Check of Impeachment)

by Michael Stokes Paulsen

Just posted on the National Review home page is a short article of mine under the title The Pardon Power is Absolute (with the subheading “But so is Congress’ impeachment power”). 

My argument, in a nutshell, is that the president’s pardon power is constitutionally unlimited (with respect to federal crimes): he may pardon whomever he wants – including himself – whenever he wants and for whatever he wants.  The argument made by some that the president cannot pardon himself amounts to little more than reading into the Constitution a limitation that simply is not there.  Such a limitation might have been a good one for the framers to have placed on the exercise of the pardon power.  They just didn’t do so.

The check, as always, is impeachment — which is the article’s other main point. The House may impeach, and the Senate (by two-thirds majority) convict and remove from office, a president who, in the judgment of the two houses of Congress, has violated the Constitution or who has abused constitutional powers he (otherwise) legitimately possesses.  Abuse or misuse of constitutional power easily fits within the scope of the broad term “high Crimes and Misdemeanors,” under the original meaning of the term in Article II of the Constitution.  The judgment as to what acts qualify and what acts do not, is left to the political-constitutional determination of the House in deciding whether to impeach and the Senate in deciding whether to convict.   

An excerpt from the article:

Legally, the president may pardon whomever he wants, whenever he wants, for whatever reason he wants, for any and all violations of federal law. (He has no power to grant pardons for state-law violations.) He may pardon crooks, cronies, and co-conspirators in his own corruption.

And, though it goes against every principle of natural justice and the traditions of the law, he may even pardon himself.

The only limitation set forth in the Constitution is that the president cannot pardon an impeachment conviction.

But there’s the catch. The impeachment power is, essentially, plenary too. It is not limited to cases of commission of an ordinary federal crime, though it certainly can include those. Rather, the House’s ability to impeach, and the Senate’s to convict, for “high Crimes and Misdemeanors” commits to the political judgment of Congress whether a high government official has so misused official power, violated the public trust, or abused the Constitution as to warrant removal from office.
 

This Day in Liberal Judicial Activism—July 25

by Ed Whelan

1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

This Day in Liberal Judicial Activism—July 24

by Ed Whelan

2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)

At her hearing, Pillard delivers false and deceptive testimony about her own writings—and, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind. Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda.

This Day in Liberal Judicial Activism—July 23

by Ed Whelan

1971—In Calvert Cliffs’ Coordinating Committee v. Atomic Energy Comm’n, D.C. Circuit judge J. Skelly Wright enthusiastically welcomes “what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment”:

Several recently enacted statutes attest to the commitment of the government to control, at long last, the destructive engine of material “progress.” But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: the National Environmental Policy Act of 1969. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy. [Emphasis added.]

In a 1983 law-review article, then-D.C. Circuit judge Antonin Scalia will identify Calvert Cliffs as having “beg[u]n the judiciary’s long love affair with environmental litigation” and will contrast Wright’s nearly boundless conception of the judicial role with the much more modest understanding set forth in Marbury v. Madison. Further, as Scalia observes, Wright doesn’t even bother to explain what the Calvert Cliffs’ Coordinating Committee is and how it has standing to challenge the agency’s action:

From reading the opinion, one is unable to discern whether the Calvert Cliffs’ Coordinating Committee, which brought construction of the Calvert Cliffs nuclear generating plant to a halt, was composed of environmentalists, or owners of land adjacent to the proposed plant, or competing coal-generating power companies, or was even, perish the thought, a front for the Army Corps of Engineers, which is reputed to prefer dams to atoms.

This Day in Liberal Judicial Activism—July 22

by Ed Whelan

2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006.

Richard A. Posner’s The Federal Judiciary—Part 3

by Ed Whelan

In his preface, Richard Posner says that his new book “is a big book, though not huge—not in a class with Moby Dick.” True enough. But, like Moby Dick, Posner’s book provides, if unintentionally, an intriguing account of one man’s obsession. Perhaps it should have been titled Mopey Dick.

One of the most striking features of Richard Posner’s new book is his incessant carping about praise for Justice Scalia. It’s really something to behold.

Posner begins his very long chapter on the Supreme Court by complaining for some five pages (pp. 65-70) about praise that Justice Elena Kagan and others offered for Scalia, both before and after his death. He tries to couch his complaints as an observation on “the absence of realism, or … the absence of a culture of frank discourse, that characterizes public discussion of the American legal system,” but it would sure seem that something else is driving him to make these comments:

Justice Kagan’s statement that she had “boundless admiration and affection” for Scalia, that she “loved” him and “miss him every day,” was, Posner states, “fulsome” and “hard-to-believe” and (a page later) “mawkish.” He wonders if she might have been speaking “tongue in cheek.” Her statement that Scalia “will go down in history as one of the most significant of Justices” is “dubious,” and her reference to his “splendid prose” is “over the top.”

Posner contests a former law clerk’s statement that Scalia “had a contagious laugh that spread pure joy to those who heard it. He reports that he “did not find [Scalia’s] laughter contagious or react with pure joy.”

Posner says that he “was stunned to read” Cass Sunstein’s praise for Scalia as “one of the greatest justices in the Court’s history, and among its three best writers.” He finds it “difficult to believe” the first half, and he says that nine justices he names “and many others” “outclassed” Scalia as a writer. As for Sunstein’s “To know him was to love him”: “I knew him too, I liked him well enough, but love him? Ridiculous!”

One page later, Posner complains about praise that Kagan offered for Scalia (“one of the most important” justices) before his death. “Colorful, outspoken, disruptive, yes,” says Posner, but “unlikely” to be recognized as one of the most important justices. Even in saying that Scalia “deserves credit” for discrediting legislative history, Posner contends that Scalia “was pushing against an open door.” Posner then turns to petty quibbling over praise for Scalia, including by Kagan, at the renaming of the George Mason law school after him.

After a respite (perhaps the bile ducts needed time to refill), Posner then spends four pages (pp. 95-98) complaining about praise for Scalia by members of the Harvard law faculty. The “liberals” “fairly tripped over themselves in lauding a deceased ultraconservative Justice of whom they had doubtless strongly disapproved.” One professor who was a former clerk “gave no examples” in stating that Scalia followed his principles. Another says that Scalia “changed our framework,” but Posner says he doesn’t understand what that means. The observation by yet another that Scalia was a “superb” justice leads Posner to allege various weaknesses of Scalia’s (for example, “his aggressive religiosity”) that “placed him well below the most illustrious of his predecessors.” On yet another professor’s statement that “I stand sometimes almost in awe” of Scalia, Posner replies: “It never occurred to me to ‘stand sometimes almost in awe’ of him.” Posner then complains that the “ultraliberal Martha Minow … raved about Scalia.” (His emphasis.) And, in contesting her praise, he claims that Scalia had “rages” that were “legendary” (not something I ever heard of) and even baselessly insinuates that Scalia might not actually have co-authored (“whether nominally or not I don’t know”) the treatise with Bryan Garner that was the target of Posner’s woefully incompetent attack five years ago.

Posner tops it off by saying that a “more dignified” reaction of the Harvard law school faculty “would have been to say nothing” about Scalia’s death. But perhaps someone who spends pages carping about praise for a deceased person shouldn’t be offering lessons on what is dignified.

Okay, Posner’s tiresomeness is tiring me out, so I’ll sweep more broadly.

Barely ten pages later, Posner is at it again, with a four-page section that criticizes Justice Kagan and D.C. Circuit judge Brett Kavanaugh “for their exaggerated conception of Scalia’s significance.”

Then Posner devotes 2+ pages to block-quoting Jeffrey Toobin’s nasty and ill-informed attack on Scalia.

Then another three pages in which Posner finds “unfathomable” Justice Kagan’s praise for Scalia and reprints an insipid New York Times op-ed that he and law professor Eric Segall wrote attacking Scalia. Weirdly, Posner modifies the op-ed to add in some jabs at Kagan for her “love” for Scalia.

Then a block quote of two more pages of what Posner aptly calls a “caustic assessment” of Scalia by Segall.

Then, in discussing the nomination of Neil Gorsuch, Posner says he finds “hard to believe” an article that states that Gorsuch cried on hearing the news of Scalia’s death. As I pointed out (in my “What a jerk” post) when this passage was reported some months ago, Gorsuch himself, in his much-publicized speech in praise of Justice Scalia’s legacy, recounted his crying. So, as a minute of research would have revealed, Posner didn’t have to attribute the supposedly “hard to believe” claim to a secondary source and could simply have taken Gorsuch’s word for it.

Then two pages criticizing the Georgetown law school dean for having “out-Kaganed Kagan, out Minowed Minow” in his praise of Scalia.

Then three more pages of a block quote by Segall criticizing Scalia.

Another respite, then a block quote from an unnamed correspondent, said to be a law school classmate of Scalia’s, offering a cartoonish account of him.

And, finally (though I’ve probably missed some of Posner’s slams), five pages in the epilogue endorsing, and piling on, Emily Bazelon’s laughably incompetent account of Scalia’s views on science, and citing and quoting other criticisms of Scalia. (I will probably have more to say on the science stuff.)

Richard A. Posner’s The Federal Judiciary—Part 2

by Ed Whelan

See Part 1.

“The dominant theme” of Richard Posner’s new book, he tells us, is “standpattism—more precisely, the stubborn refusal of the judiciary to adapt to modernity” (p. 376). But “the stubborn refusal of the judiciary to adapt to modernity” turns out to be a vapid umbrella label for just not embracing Posner’s positions. Consider:

1. Posner complains that traditional modes of judicial decisionmaking are “excessively backward-looking” (p. x) because they focus heavily on legal text and precedent. Instead, judges should simply decide what policy is best and work to find a path to get there:

My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution.

Further: “The time to look up precedents, statutory text, legislative history, and the other conventional materials of judicial decision making is after one has a sense of what the best decision should be for today’s society” (p. 82 (emphasis in original)).  

Or, as Posner put it recently, most legal “technicalities are antiquated crap.” Far better for judges to indulge “common sense” than to have a decision “supported by ‘reason,’ whatever that means exactly.”

So, in Posner’s view, laws are obstacles for the pragmatist judge to work his way “around by hook or by crook.”

If Posner’s own description of his pragmatism doesn’t suffice to discredit it, I’ll refer readers to my review of Posner’s How Judges Think (especially Parts III and IV) for my critique. I’ll also note (as I spelled out in this post) that his “common sense” leads him in this new book to argue that Plessy v. Ferguson (1896) (allowing racial segregation in public facilities) and Korematsu v. United States (1944) (upholding internment of Japanese Americans) were “‘right’ for [their] time” and that Buck v. Bell (1927) (allowing the involuntary sterilization of supposedly “feeble-minded” individuals) was a model of pragmatic reasoning. So perhaps having judges adapt their decisions to the times isn’t as rosy a prospect as Posner’s “forward-looking” rhetoric might have you think.

But whatever your views on judicial pragmatism, for purposes of this post I’ll simply observe that it’s quite deceptive to cast the jurisprudential battle between pragmatism and legalism as a battle over whether or not the judiciary should “adapt to modernity.”

Posner heaps special scorn on the originalist version of legalism. “How,” he asks, can eighteenth-century thinkers be thought to have foreseen twenty-first century conditions?” (p. 30). The question is an obtuse one. The Framers set up a system of representative government that has broad play to adapt to changing conditions, and they carved out specific protections to guard against known and feared abuses. In addition, they set up a process by which the Constitution could be (and has been) amended. Together these features make it unnecessary for the Framers “to have foreseen twenty-first century conditions,” and I’m not aware of anyone who advocates originalism on the assumption that the Framers did have such foresight.

2. Posner’s first item of complaint, believe it or not, is that hardly any judges “tell their law clerks to call them (the judges, that is) by their first name” (p. 4). This, he says, is somehow “illustrative of the general problem of inefficient judicial management of staff.”

Uh, okay. Whatever you say, Dick! (Unlike many twenty-somethings speaking to much older bosses, Posner’s clerks might find it especially apt to call him by his first name.)

3. Posner says that an “important reform, though hopeless, would be to require the judges to write their own opinions.” But, wait: Much as I might have some sympathy for that proposal, isn’t that backward-looking? Posner acknowledges that “nowadays U.S. presidents and other prominent people usually delegate the writing of their speeches to anonymous staff.” Why doesn’t he want judges to “adapt to modernity” in this respect?

Posner gives some reasons (the “principal benefit” is to “winnow out the weakest judges”). But it would seem that his desire to have the judiciary “adapt to modernity” is malleable enough to accommodate whatever he favors.

4. Posner complains:

[A] number of common practices of federal appellate courts could easily be abandoned and should be. One is a court’s announcing in advance (often months in advance) who the members of a panel will be that will hear a particular case. Such a preannouncement is likely to cause the lawyers in the case to focus on the particular leanings of the panel members . . . .” [P. 226 (emphasis added)]

What? This struck me as an inaccurate description of current practices, so I doublechecked with a few friends who are appellate experts. They confirm that no federal appellate court announces “months in advance” who will be on a panel (though the D.C. Circuit did so until 2014). According to this Mayer Brown analysis from 2015, three circuits (including Posner’s Seventh) reveal the panel on the day of argument, six do so a week or so before, two do two weeks before, and two do a month before. No court typically announces the panel before submission of the briefs, which would present the prime opportunity “to focus on the particular leanings of the panel members.”

5. Posner asserts that the Supreme Court’s “refusal even to experiment [with televising its hearings] casts gave [sic; read “grave”] doubts on its competence, and specifically on the managerial ability of the Chief Justice” (pp. 190-191). But Posner reveals a page later that his own court, for which he was chief judge from 1993 to 2000, doesn’t televise its hearings and that the current chief judge only very recently appointed a committee to look into the question. So why doesn’t Posner direct his suggestion of incompetence, and failure to adapt to modernity, against himself?

6. Displaying his supposed common sense, Posner argues that a “more realistic alternative” to term limits for judges

might be to require every judge—including the Justices of the Supreme Court—upon reaching eighty or eighty-five to have a mental-acuity test, geared to the type of oral and written materials germane to the judicial task at the particular judge’s level.

A moment’s reflection might have led Posner to realize how unrealistic such a proposal is. Does he really imagine that it would be possible to design and implement such a test—and to dislodge justices and judges from their seats on the basis of such a test—in a way that would be accepted as legitimate?

7. Given his incessant spewing of proposals, it’s no surprise that Posner can’t keep them consistent. He argues, for example, that “every appellate judge,” including “the eminences of the Supreme Court,” “should have trial-court experience as a judge.” Maybe so. But how can he reconcile that position with his separate position that “[a] brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice”? [7/24 addendum: Contrary to what I initially suggested, Posner's two positions are reconcilable, as Posner, rather than insisting that appellate judges have trial-court experience before becoming appellate judges, simply wants them "to hear cases in the district court" if they haven't previously had trial experience. I think that the idea of tossing into a trial court a businessman or politician or teacher who has no background in civil procedure or evidence is loopy, but my charge of a flat inconsistency between Posner's two positions was mistaken.] 

* * *

Some of the passages I’ve criticized in this post aren’t particularly significant in and of themselves, but they’re illustrative of defects that pervade Posner’s book. I don’t mean to deny that Posner’s stew has a few tasty morsels here or there, but rare will be the reader who will have the appetite to hunt for them.

More to come.

Richard A. Posner’s The Federal Judiciary—Part 1

by Ed Whelan

You sure shouldn’t judge a book by its cover. Seventh Circuit judge Richard A. Posner has just published another book—or, perhaps more accurately, another pretense of a book, with a grand title, stylish cover, and the imprimatur of Harvard University Press. But when you open it up, things quickly turn bad. Indeed, The Federal Judiciary: Strengths and Weaknesses may well be the worst-edited book that I have ever tried to wade through.

This, alas, is nothing new for Harvard University Press, which seems happy to serve as a vanity publisher for whatever mishmash of ideas Posner slops together. Nine years ago, in my broadly unfavorable review of Posner’s How Judges Think, I observed that the book was “at least one thorough redraft short of being ready for publication” and “reads like a hasty copy-and-paste compilation, with little attention to harmonious coherence.”  Ditto, four years ago, for Posner’s Reflections on Judging. (Posner has in lots of other ways amply earned my low regard; here’s just one of many examples.)

This time, Posner gives a warning of sorts, as he states in his preface that the book “is more a macédoine than a treatise” and “contains a good deal of quoted material.” Macédoine, it turns out, is a fancy word for a confused mixture, a hodgepodge, a jumble, though I’m guessing that Posner intended a more favorable meaning (a mix of fruits or vegetables).

By “a good deal of quoted material,” Posner refers to his countless block quotes, many running for pages. He quotes the opinions in one of his cases for twenty pages, and another order of his for twelve pages. He includes the entirety of a favorable review of Reflections on Judging (3 pages); a journal’s explanation (crediting Posner) of its reasons for abandoning the Bluebook system of citation (2+ pages); his own written advice to his law clerks on citation (3-1/2 pages); repeated long excerpts from his buddy, law professor Eric Segall (too many to count, but I’d be surprised if fewer than ten pages); Jeffrey Toobin’s Scalia-bashing (2 pages); a long Slate exchange with Akhil Amar (5+ pages); a tendentious letter from an unnamed correspondent; and an “open letter” from liberal academics to Donald Trump (4+ pages). (I’ve made no effort to be exhaustive and have probably omitted some other glaring examples.)

Worse, when Posner’s not dumping copy-and-paste excerpts on the reader, he’s bouncing around from scattered thought to disjointed observation to tiresome repetition. “Moving on” and “Enough …” are feeble transitions that he resorts to on multiple occasions.

The book is also very poorly organized. You’d think that its three chapters on the three tiers of the federal judiciary would provide a sensible way for Posner to structure his thoughts. But he instead begins with a rambling 41-page introduction and then, in his first chapter, thrusts the reader into the minutiae of Round Five (or is it Round Four?) of a back-and-forth that he’s been having with a law professor on various topics. When he does finally turn to his first tier (the Supreme Court), he spends about six pages complaining about Justice Kagan’s praise for Justice Scalia and then fourteen pages on an “edited and somewhat amplified” version of transcribed remarks that he made off the top of his head at a conference. Posner then divides the rest of the 150+-page chapter into a Part One and a Part Two, but if there’s any sense to the division, I missed it. (Part Two begins: “I have at times drifted from the subject of this chapter, which is the Supreme Court, and let me return to it.”) After his chapter on the third tier (the district courts), he tosses in a chapter whose material, if worth including at all, could sensibly have been divided among the tiers. And his conclusion is followed by a 30-page epilogue that might as well have been titled “Some Other Things I’ve Just Thought Of”: far from being confined to new events, it includes his criticism of President Obama’s praise of Elena Kagan in 2010.

As I said four years ago of Reflections on Judging, Posner’s new book is too wildly undisciplined for me to attempt a comprehensive survey and critique of its arguments. But I will offer some further observations in follow-up posts.

This Day in Liberal Judicial Activism—July 20

by Ed Whelan

 1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.” Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.

Scalia Speaks, Forthcoming Book of Scalia Speeches

by Ed Whelan

As I mentioned in late April, at the invitation of the Scalia family, Christopher J. Scalia (son of Justice and Mrs. Scalia) and I have been reviewing and selecting Justice Scalia’s best speeches for publication in a single-volume collection. I am very pleased to pass along that, as announced earlier today on the Corner, Crown Forum has arranged with the Scalia family to publish Scalia Speaks: Reflections on Law, Faith, and Life Well Lived. Even better, Scalia Speaks will be available very soon—on October 3, the Tuesday after the next Supreme Court term opens.

Scalia Speaks is designed for a general audience and is replete with Justice Scalia’s characteristic wisdom, clarity, and humor. There are a lot of great speeches on legal topics, all readily accessible to the non-lawyer. As the subtitle suggests, we’ve included many speeches on other topics: for example, faith, character, tradition, ethnicity, education, turkey hunting, and even the games and sports that a young Nino Scalia played on the streets of Queens in the 1940s. The book also features several of the Justice’s moving, and often funny, tributes to friends. Only a small handful of the dozens of speeches in the book have ever been published before.

My hopeful expectation is that a very broad swath of readers will find the book a delight—a joy to read and a great gift for family, friends, and colleagues. Here’s a take from one non-lawyer who reviewed the manuscript:

Skimming through the speeches is like being bathed in a world of goodness, truth, and beauty. The humor, generosity, friendship, and love that shines from them is a balm in what is too often an ugly world.

Justice Ruth Bader Ginsburg—dear friend to Justice and Mrs. Scalia and subject of one of the Justice’s tributes—has generously volunteered a wonderful foreword, and Chris Scalia has written a poignant introduction.

Pre-order the book now. You’ll be very glad you did.

This Day in Liberal Judicial Activism—July 19

by Ed Whelan

2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.”

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction.

No, Chief Justice Roberts Did Not ‘Embrace’ Obergefell

by Ed Whelan

In yesterday’s Washington Post, Supreme Court reporter Robert Barnes posed what he called a “Supreme Court mystery”: “Has Chief Justice John G. Roberts Jr. embraced the court’s same-sex marriage decision that he so passionately protested two years ago?” But the clear answer to Barnes’s question is no.

To be sure, it is an open question whether the Chief Justice joined the recent per curiam opinion in Pavan v. Smith, which held that the Court’s 2015 decision in Obergefell v. Hodges justified summary reversal of a ruling by the Arkansas supreme court. But let’s assume that the Chief Justice did join the per curiam majority. All that such joinder would necessarily signal, as Barnes acknowledges only towards the end of his pseudo-mystery, is that Roberts thought that “Obergefell as precedent … covered the Arkansas case, whether he liked it or not.” It certainly wouldn’t signal that he now suddenly thought that it had been rightly decided, or that it shouldn’t be overruled, much less that he “embraced” it.

I’m reminded of Jeffrey Toobin’s bizarre suggestion a few years ago (see my point 2 here) that Justice Scalia’s joinder in Justice O’Connor’s unanimous opinion in Ayotte v. New Hampshire (2006) meant that he had “embrac[ed]” her undue-burden standard for abortion regulations.

Barnes also errs in asserting that the dissenters in Pavan said the court should have accepted the case for full briefing and argument because the outcome wasn’t nearly as clear-cut as the majority claimed.” (Emphasis added.) No. Justice Gorsuch’s dissent (which, in the face of an unhinged attack, I explained here) says only that summary reversal was improper. It does not address whether the Court should instead have granted or denied review.

This Day in Liberal Judicial Activism—July 18

by Ed Whelan

2014—In State v. Gleason, the Kansas supreme court rules by a 5-2 vote that the Eighth Amendment requires a capital-sentencing court to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt.

In January 2016, in the consolidated ruling styled Kansas v. Carr, the Supreme Court will reverse the Kansas ruling. In his opinion for eight justices, Justice Scalia “doubt[s] whether it is even possible to apply a standard of proof to the mitigating-factor determination” and explains that the Court’s case law does not require any such jury instruction. (Justice Sotomayor, in dissent, does not disagree on this point but instead opines that the Court should not have reviewed the Kansas ruling.)

This Day in Liberal Judicial Activism—July 17

by Ed Whelan

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”