Ed Whelan, National Review Online Bench Memos
This Week in Liberal Judicial Activism, March 24, 2008
Stevens, Reinhardt, Barkett, Sarokin, and more:
Mar. 24 1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio's existing system of financing its public-school system violates the state constitution's declaration that the General Assembly "make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state." The court orders the General Assembly to "create an entirely new school financing system." (How a school system can ever be "thorough and efficient" so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

Mar. 25 1993—In her plurality opinion in Wyche v. State, Florida chief justice (and, thanks to President Clinton, current Eleventh Circuit judge) Rosemary Barkett strikes down as facially unconstitutional an ordinance that prohibits loitering for the purpose of prostitution. Barkett strains to misread the ordinance as not requiring, as an element of the crime, a specific intent to engage in prostitution. Further, she asserts that even if specific intent were required, the ordinance would still be unconstitutional because of the hypothetical possibility that it could be applied in a manner that would chill First Amendment speech. Never mind that it's difficult to see how the ordinance would reach any constitutionally protected activity, much less the substantial quantum needed for First Amendment overbreadth doctrine to apply to a facial challenge.

In two other cases that same day (E.L. v. State and Holliday v. City of Tampa), Barkett similarly strikes down as facially unconstitutional ordinances prohibiting loitering for the purpose of engaging in drug-related activity. So much for the ability of crime-ridden communities to combat the scourges of prostitution and drugs.

Mar. 27 1931—Stephen Reinhardt is born in New York. Appointed to the Ninth Circuit by Jimmy Carter in 1980, Judge Reinhardt has earned notoriety as the "liberal badboy of the federal judiciary." In his overtly political view of judging, "The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach." Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, "They can't catch them all."

Mar. 29 2000—In dissent (in City of Erie v. Pap's A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections. Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general. So what? As Justice Scalia responds: "As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers' comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers."

Mar. 30 1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer "spent 90 minutes—twice—staring at reference librarians." In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, "unnecessary staring". But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional. (See This Week entry for Feb. 14, 1992, for more on this case and the Third Circuit's reversal of Judge Sarokin's ruling.) Read More...

Pedro Ruz Gutierrez and Carrie Levine, Legal Times, March 3, 2008
Nomination Stalemate Dampens Bush Legacy
With just 10 months left in his term, President George W. Bush is on track to leave office with fewer of his picks on the federal bench than his fellow two-term presidents Bill Clinton and Ronald Reagan. Read More...

October 24, 2007

"Today, despite the attempted obstruction by a majority of Senate Democrats, the U.S. Senate voted to confirm Judge Leslie Southwick to the 5th Circuit Court of Appeals. All supporters of fairness should applaud the tireless efforts of Minority Leader Mitch McConnell and Senator Arlen Specter, ranking minority member of the Senate Judiciary Committee, to get Judge Southwick a fair up-or-down vote. Judge Southwick served his nation honorably in Iraq and today we celebrate his confirmation as it allows this American patriot to continue serving his country in a position he is so well qualified to hold."

Gary Marx
Executive Director
Judicial Confirmation Network

TheHill.com, October 24, 2007
GOP scores big win with Southwick confirmation
Senate Republicans scored a key victory Wednesday with the confirmation of Leslie Southwick to the New Orleans-based U.S. Court of Appeals for the 5th Circuit.

A united GOP conference convinced enough Democrats to cross party lines to first clear a procedural hurdle and then succeed in the confirmation vote. Southwick has been arguably the most contentious judicial nominee of the 110th Congress up to this point, amid strong opposition from Democratic leaders and liberal groups. Senators had invoked cloture in a 62-35 vote and, minutes later, confirmed Southwick on a 59-38 vote. Read More...

Wendy Long, National Review Online Bench Memos, October 1, 2007
Black liberals, Justice Thomas, and the "victim" metaphor
I'm beginning to understand why Justice Thomas insists he was once a black "radical" but never a black "liberal."

Black liberals are essentially calling the Justice a hypocrite for analyzing the "high tech lynching" of his confirmation hearing and other aspects of his life through the prism of race, as portrayed in several classics of American literature, including Richard Wright's Native Son and Harper Lee's To Kill A Mockingbird. Read More...

Wendy Long, National Review Online Bench Memos, September 30, 2007
Thomas: Nightline Monday Night and ABCnews.com now
For those of you who were left hungry for more (and judging from my email inbox over the last two hours, that is quite a few) after tonight's 60 Minutes piece on Justice Thomas:

ABC News will have interview footage and reporting throughout the day tomorrow, most notably on Nightline tomorrow night, Monday, October 1, at 11:30 p.m. Eastern time. The interviewer, ABC News Legal Correspondent Jan Crawford Greenberg, also has an eight-part "in-depth essay on her interviews with the Justice" which is now up on abcnews.com under law and politics, and it is full of lots of direct quotes from her interviews with Justice Thomas.

Wendy Long, National Review Online Bench Memos, September 30, 2007
Justice Thomas: Awesome, not Angry
Anyone who just saw the CBS 60 Minutes piece on Justice Thomas and his memoir, My Grandfather's Son (due to be released 3 hours from now, if you can find a bookstore open on a Sunday night at midnight) has now seen with his own eyes what some of us have been privileged to know for a long time: that Justice Thomas is summed up by the "A" word — not "angry," but "awesome." Read More...

Wendy Long, National Review Online Bench Memos, September 29, 2007
Justice Thomas Memoir: Toobin Distortion
As Ed has detailed, one can't expect much from Jeffrey Toobin in terms of straightforward analysis about the Supreme Court. Toobin is spinning wildly again — this time in anticipation of the Monday release of Justice Thomas's much-anticipated memoir, My Grandfather's Son.

Toobin appeared on CNN today to talk about the book, based upon a CBS website piece plugging its "60 Minutes" interview of the Justice by Steve Kroft, airing Sunday night. CBS quotes Justice Thomas as saying that the abortion issue "was really the elephant in the room" at his Senate confirmation hearings. Read More...

The Washington Post, August 18, 2007
Qualified to Serve
BEFORE BEING nominated by President Bush to the U.S. Court of Appeals for the 5th Circuit, Leslie H. Southwick served for almost 12 years on the Mississippi Court of Appeals, where he participated in thousands of cases spanning the gamut of civil and criminal law. A panel of the American Bar Association unanimously found Judge Southwick to be "well qualified" for the promotion, its highest ranking. Yet congressional opponents have latched on to two opinions that Mr. Southwick joined, but did not write, to argue that he is unfit for the federal appeals post. Read More...

Ed Whelan, National Review Online Bench Memos
This Week in Liberal Judicial Activism, Aug. 13
Aug. 15 1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee.  His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Week for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as "judicial willfulness masquerading as judicial deference."

Aug. 16 1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors' abortions is unconstitutional under the Ninth Circuit's 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is "in direct conflict with our precedents."

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.

Aug. 17 2006—In what one expert commentator aptly labels a "transparently political screed," Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency's Terrorist Surveillance Program is unconstitutional. Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor's "careful, thoroughly grounded opinion." Alas for the paper's poor editorialists, the following day the Times runs a front-page article—"Experts Fault Reasoning in Surveillance Decision"—that reports that "[e]ven legal experts who agreed with [Taylor's] conclusion" say that her opinion "overlooked important precedents, failed to engage the government's major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions." (How's that for "careful" and "thoroughly grounded"?) Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor's critics for self-indulgent criticism, complains that her opinion "seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel." But Tribe concludes that "her bottom line is very likely to survive appellate review."

In July 2007, the Sixth Circuit overturns Taylor's ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims. Read More...