Abortion Shenanigans

by Ed Whelan

More than three decades ago, Justice O’Connor observed in her dissent in Thornburgh v. American College of Obst. & Gyn. that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, six years later in Planned Parenthood v. Casey, O’Connor would indulge in the same ad hoc nullification of legal rules that she had decried.

Even for those of us accustomed to the abortion distortion, the recent events in Garza v. Hargan were quite a surprise. That case concerned an unaccompanied pregnant alien minor who was apprehended unlawfully entering the United States, who declined to request voluntary departure to her home country, and who, not having secured a sponsor, remained in federal custody. Intent on having an abortion and having already obtained the judicial bypass to the parental-consent requirement under Texas law, the minor, represented by the ACLU, sued and obtained a temporary restraining order that required the federal government to transport her promptly to the nearest abortion provider both for the counseling required under state law at least 24 hours in advance of the abortion and for the abortion itself.

I won’t summarize the entire procedural history of this case (see pp. 2-17 of the government’s certiorari petition, if you wish), but will instead highlight two sets of developments:

1. On October 20, a divided panel of the D.C. Circuit vacated the TRO that the district court had entered and instead allowed the government until October 31 to secure a sponsor to whom the minor could be released. Two days later (October 22), at 10 p.m.—yes, p.m.—the ACLU filed an emergency motion for en banc rehearing with the D.C. Circuit. One hour later, at 11 p.m., the D.C. Circuit granted the order and gave the government until 11 a.m. the next morning (October 23) to file its response. In other words, with no advance notice, the court obligated the government lawyers to work overnight to respond the very next morning to a motion filed late at night.

Then, on October 24, without even holding oral argument, the en banc court, by a vote of 6 to 3, vacated the panel majority’s order and reinstated the TRO. An hour later, the ACLU filed an emergency motion in the district court to amend the TRO to require the government to make her immediately available for counseling and an abortion. Without even giving the government an opportunity to respond, the district court promptly granted the motion.

In a lengthy footnote in his dissent from the en banc ruling, Judge Kavanaugh explains why the court shouldn’t have granted en banc review in the first place. The initial panel order was unpublished and therefore, far from presenting a “question of exceptional importance” (under the usual standard for en banc rehearing), “constituted no legal precedent for future cases.” Further:

The panel was faced with an emergency motion involving an under-developed factual record that is still unclear and hotly contested. Indeed, the parties have submitted new evidence by the hour over the past two days – none of which was presented to the panel. The panel’s unpublished order recognized Jane Doe’s interests without prematurely requiring the Government to act against its interests. The panel decision was prudent and reasonable, given all of the circumstances. Indeed, as noted above, the Government represents that, while difficult, it is possible for Jane Doe to obtain a sponsor by “5:00 P.M. Eastern on October 31, 2017.” This case, as handled by the three-judge panel, therefore was on a path to a prompt resolution that would respect the interests of all parties – until the en banc Court unwisely intervened.

2. The government planned to seek an emergency stay from the Supreme Court. After the ACLU represented that the abortion would not take place until October 26, the government informed the Court and the ACLU that it would file its emergency application for a stay on the morning of October 25. The minor instead scheduled her abortion for 4:15 a.m.—yes, a.m.—on October 25. (I refer the reader to section 7 of the government’s cert petition, at pages 11-16, for a detailed account.) By the time that the government had stated it would file its emergency application, the abortion had already taken place.

For the Left, it’s abortion über alles.

By the way, the legal director for the ACLU, who was very active in this litigation, is David Cole. Cole is also the husband of D.C. Circuit judge Cornelia Pillard, so his involvement in the case explains why Pillard recused herself.

This Day in Liberal Judicial Activism—November 7

by Ed Whelan

2000—So much for respecting a capital inmate’s final wishes.

Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief. But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.” Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.

Heritage Foundation Event on Scalia Speaks

by Ed Whelan

Tomorrow (Tuesday, November 7) at noon, Christopher Scalia and I will be at the Heritage Foundation for an event on Scalia Speaks. I’m very much looking forward to it.

RSVP here to attend. The event will also be live-streamed.

Judicial Nominations Update

by Carrie Severino

Last week was a big week on the judicial nominations front with Senate Majority Leader Mitch McConnell following through on his promise to prioritize the confirmation of judicial nominees. Five judicial nominees were confirmed in four days, including all four circuit court judges pending on the Senate Floor (Amy Coney Barrett, Joan Larsen, Allison Eid, and Stephanos Bibas). This brings the total number of judicial nominees confirmed this year to 13 including Justice Gorsuch.

Here is this week’s update on federal judicial nominations.

Number of total current and known future vacancies: 161

Courts of Appeals: 23

District/Specialty Court*: 138

Number of pending nominees for current and known future vacancies: 49

Courts of Appeals: 10

District/Specialty Courts: 39

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes

Courts of Appeals: 0

District/Specialty Courts: 16

Nominees Confirmed by the Senate

Supreme Court: 1

Courts of Appeals: 8

District/Specialty Courts: 4

More Scalia Speaks Reviews

by Ed Whelan

I’m having trouble keeping up with all of the wonderful reviews of Scalia Speaks. All credit goes to Justice Scalia.

In a big spread in Sunday’s Washington Post, law professor, and former Scalia clerk, Steven G. Calabresi hails the book as “a treasure that captures Justice Antonin Scalia’s brilliance, wit, faith, humility and wide range of knowledge” and as a “magnificent volume that should be on the bookshelf of every educated American.”

Alan Dershowitz’s beautiful review, which was available online early last week, appeared in print in the Sunday New York Times. So that means that glowing print reviews of Scalia Speaks were published in the New York Times, the Wall Street Journal, and the Washington Post within four days of each other, with the only area of disagreement being whether the most apt adjective for Justice Scalia’s speeches is “marvelous” (NYT and WSJ) or “magnificent” (WaPo).

On Public Discourse on Friday, Matt Franck has a rich and insightful review titled “Antonin Scalia, Republican Schoolmaster.” Matt calls Scalia Speaks “a feast of many courses.” He praises each speech as “a polished gem of its particular genre, with wit, insight, and sentiment shaped exactly right for the audience and the occasion,” and observes that “[l]ove of country and love of the Constitution—a simple and pure patriotism matched with a sophisticated historical sensibility—run through these speeches from end to end.”

Plus, James Rosen’s NR review is now available online. Rosen describes Scalia Speaks as “engrossing and invaluable, a treasure for lawyers and non-lawyers alike, a milestone in the literature of this profoundly influential American and in the annals of the Supreme Court.”

As I’m writing this, Scalia Speaks is #53 on Amazon’s million-plus list of books, is an Amazon #1 Best Seller in at least three categories, and has unanimous five-star ratings from customer reviews. Plus, it’s available at a 37% discount off retail—less than $19.

So if you haven’t done so already, treat yourself and your family and friends to Scalia Speaks.

This Day in Liberal Judicial Activism—November 6

by Ed Whelan

2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit. Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it.

In February 2004, President Bush recess-appoints Pryor to the seat. And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat.

This Day in Liberal Judicial Activism—November 5

by Ed Whelan

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

This Day in Liberal Judicial Activism—November 4

by Ed Whelan

1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.”

But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism.

2016—In defiance of governing Third Circuit precedent holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, federal district judge Cathy Bissoon (in EEOC v. Scott Medical Health Center) denies an employer’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.  

Heroic Book Review

by Roger Clegg

I’d like to add my voice to the chorus praising Scalia Speaks, the recent compendium of speeches given by the late, great justice. In doing so, let me offer a couple of points that I’ve not seen made elsewhere.

First, because this is book is not only entertaining and thoughtful but also accessible to nonlawyers — the speeches are divided into six categories, only one of which is “On Law” — it’s a good way for us conservative lawyers to show our laymen friends the reason we loved Justice Scalia as we did. This sort of enthusiasm is not always easy to explain without eyes glazing over; to outsiders, I suspect, the Federalist Society annual meeting must seem like Sesame Street’s “National Association of W Lovers,” where W stands for Scalia. Anyway, I’m giving a copy to my parents as a Christmas present.

Second, the insights are as fresh as today’s newspaper. Case in point: The day I finished the book some columnist criticized on separation of powers grounds those politicians who attack judges; well, Justice Scalia explains more than once in this book that, when judges act as politicians, their being treated as such is not only inevitable but even desirable, if the only alternative is to accept their rule as that of a new aristocracy.

Now, it is common knowledge that one of the book’s editors, Ed Whelan, is a good friend, so to show that I am not in the tank, let me note: (1) the editors are not perfect, and I did find one typo in the book (on page 310, the failure to capitalize the last word in “Grand Army of the republic”); (2) Justice Scalia should have credited Emil Faber rather than simply plagiarizing the latter’s trenchant observation, “Knowledge is good” (page 328); and (3) it was unconscionable for Justice Scalia to characterize, albeit indirectly, our hero William F. Buckley Jr., as “one smart-aleck political commentator” (page 329).

Still, all is forgiven since I now know that Justice Scalia, proud Italian-American Catholic though he was, was also apparently a fan of the Irish-British Protestant and a third hero of mine, C.S. Lewis. The justice pays him this fine compliment: “Had he been a lawyer, C.S. Lewis would have been a magnificent legal writer.” And had he had the chance to read what Justice Scalia has to say “On Faith,” I’m sure Mr. Lewis would have found some way to return the compliment.

A fine book!

WSJ Review of Scalia Speaks: ‘Marvelous’

by Ed Whelan

In today’s Wall Street Journal, UVA law professor, and former Scalia law clerk, John Duffy has a beautiful review of Scalia Speaks. A couple of excerpts:

Scalia’s brilliant writing and commitment to principle permeate Scalia Speaks…. The book supplies what Scalia’s judicial opinions could not: insight into the more fundamental set of principles that guided the man’s entire life. The speeches are divided into six sections, only one of which is devoted to the law. But it is the five other sections that are the most illuminating. Here we learn Scalia’s outlook on, among other things, character, friendship, education, sports, political philosophy and faith….

This marvelous book surely will be required reading for anyone seeking to understand the mind of this great jurist and conservative thinker. But I would go further and say that it should be required reading for anyone who wishes to understand the mind of a great American, a figure so important to our history that his passing influenced the presidential election held months later. If Scalia Speaks can be said to have one fundamental flaw—one shared with the man’s life—it is that it ends too soon.

I readily acknowledge that the reader might fairly be skeptical of an assessment offered by a former Scalia clerk. There are at least two good reasons to overcome that skepticism. First, Duffy deftly works in illustrations that support his judgments. Second, his assessment aligns with that of all the other reviewers of the book so far, including those on various places on the ideological spectrum, such as Alan Dershowitz (“marvelous collection”) and SCOTUSblog’s Ronald Collins (“If you would know Scalia the man, read Scalia Speaks”).

This Day in Liberal Judicial Activism—November 2

by Ed Whelan

2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include:

(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report.

(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.

(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.

(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.

(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.

(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.

(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).

Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise.

Ongoing Democratic Obstruction Aided by the ABA

by Carrie Severino

Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley deserve credit for pressing forward to secure the confirmation of President Trump’s judicial nominees amid ongoing obstruction by Senate Democrats. Starting last week, Leader McConnell began to reverse the ballooning number of vacancies on the federal bench with a spate of floor votes. This week, he started with a floor vote for district court nominee Trevor McFadden and then proceeded to four circuit court nominees—Amy Coney Barrett, Joan Larsen, Allison Eid, and Stephanos Bibas.

Barrett, whose nomination to the Seventh Circuit was met by the ugly spectacle of Senate Judiciary Committee Democrats questioning her about her faith during her hearing, was confirmed yesterday. The others will follow the balance of this week, Leader McConnell promises, even if the Senate must work into the weekend. The reason that might be necessary is the decision by Democrats to employ every tactic they can to delay the confirmation of judges.

Although the nomination filibuster was largely eliminated at their own hands when they were in the majority, Senate Democrats have indiscriminately forced the Senate to take 47 cloture votes on judicial and executive nominations since Trump took office. For an idea of how unprecedented this is, consider that there were a total of only six such votes at this point in the previous four presidential administrations combined. The gratuitous nature of this obstruction is highlighted by the substantial number of nominees many Democrats did not even oppose, going on to vote for their confirmations after the cloture votes were behind them. This has translated into far longer waits for nominations and the lowest percentage of presidential nominees confirmed over the last 30 years. Of course, the unnecessary protraction of the process also has the effect of slowing the Senate’s ability to do its work on other issues facing the country—which cynically appears to be the very plan of the Democratic leadership.

While votes and debates on circuit court nominees plod forward on the Senate floor, the Senate Judiciary Committee continues its work considering additional nominations. Today the Committee is holding a hearing for four judicial nominees, three for various district courts and one for the Eighth Circuit, Leonard Steven Grasz, long the chief deputy attorney general of Nebraska. In the latter case, the standing committee of the American Bar Association (ABA) has provided grist for Democrats by rating the nominee “not qualified.” Their report explaining the basis for this rating is strikingly thin, attributing to Grasz “bias and lack of open-mindedness” based on a law review article he wrote in 1999 making the argument that lower court judges should not rush to extend the Supreme Court’s prior rulings on abortion to strike down prohibitions on partial-birth abortions. Apparently ignored by the ABA was the same article’s recognition that “[l]ower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so.” Including that in its assessment would have acknowledged how much Grasz’s views on the subject align with the widely accepted understanding of the obligations of lower court judges.

That the ABA would have offered its rating is not surprising given its own history of politicizing its assessments of nominees. As Adam White notes, this phenomenon has long been widely observed, including in a book-length study going back over 50 years and a 2012 Political Research Quarterly study that found “strong evidence of systematic bias in favor of Democratic nominees.” Abortion is as politically charged as recent issues get, so it is not surprising this would have been the context to trigger another instance of ABA bias. It is worth noting that, while the Supreme Court narrowly struck down Nebraska’s partial-birth abortion ban in 2000, a year after Grasz’s article, it would uphold a similar federal statute in 2007, ultimately taking the position Grasz advocated. It should not be necessary to point that out, but as Ed Whelan has illustrated (here, here, and here), the ABA has so blurred the lines between its own agenda and its understanding of the roles of advocates versus adjudicators that the organization has discredited itself in this instance rather than the nominee.

Yale Events

by Ed Whelan

This Friday, November 3, I will be at Yale to take part in two events.

At noon, I’ll be discussing Scalia Speaks at Yale law school. Eleventh Circuit judge William Pryor, who has penned a generous review of the book, will also take part. The event is sponsored by the law school’s Federalist Society chapter.

Later that afternoon, I’ll be on a panel at the annual conference of the William F. Buckley, Jr. Program at Yale. This year’s conference addresses “The Constitution and the Courts: Challenges, Opportunities, and the Future of Freedom.” My panel is titled “Judicial Confirmations and Interpreting the Constitution: Borking, Activism, and Originalism.” My fellow panelists are law professors Randy Barnett and Jonathan Turley, with law professor E. Donald Elliott as moderator. The full conference schedule, which features a great line-up, is here.

Judge William Pryor: Scalia Speaks Is ‘Indispensable’

by Ed Whelan

While I was abroad last week, Eleventh Circuit judge William Pryor published a great review of Scalia Speaks. Here are his first two paragraphs:

For those who will forever celebrate the life and career of the late Justice Antonin Scalia or for those who simply want to learn more about this giant of American law, one of Justice Scalia’s sons, Christopher, and one of his former law clerks, Edward Whelan, have teamed up to publish an indispensable collection of the late justice’s best speeches, “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.” This collection puts on full display Justice Scalia’s skilled writing, his quick wit and his uncommon wisdom on a wide range of topics — from law to turkey hunting, from education to religious faith, from American values to American heroes, and from virtue to the public good.

Although “Scalia Speaks” will especially appeal to judges and lawyers, a general readership will find these speeches, many never before published, to a variety of audiences — whether at college or high school commencements or on St. Patrick’s Day in New York City or at the Days of Remembrance for victims of the Holocaust at the Capitol — to be accessible, edifying and entertaining.

ABA Committee Smokes Grasz—Part 3

by Ed Whelan

What’s really going on? What might actually explain the ABA’s “Not Qualified” rating of Eighth Circuit nominee Steve Grasz and its embarrassingly incompetent report on that rating?

Some observations:

1. The lead investigator on Grasz’s nomination was Arkansas law professor Cynthia Nance. Under the ABA’s procedures, it was Nance who prepared the formal investigative report on Grasz and circulated it to her fellow committee members for a vote. (The head of the ABA committee then drew on that much longer report to prepare the short report that was sent to the Senate Judiciary Committee.)

Nance’s strong ideological bias is not difficult to uncover. Among other things, she signed a letter opposing the confirmation of Justice Alito. Given the ABA’s persistent complaints about Grasz’s supposed inability to separate his judging from his “pro-life agenda,” it’s notable that that letter against Alito complains about the impact that he would have on—euphemism alert!—“women’s reproductive freedoms.” Nance also signed a letter arguing that the “government’s interests in protecting women’s health and reproductive freedom, and combating gender discrimination,” meant that even religiously affiliated organizations—like the Little Sisters of the Poor—should be required to provide contraceptive coverage (including drugs and devices that can also operate in an abortifacient manner) notwithstanding their own religiously informed views on what constitutes illicit moral complicity in evil.

Nance’s very active Twitter feed (more than 24,000 tweets) also offers some revealing insights. Among other things, Nance retweeted the question whether Justice Scalia would have been in the majority in Dred Scott, and she evidently found amusing or insightful the observation that “Constitutional strict constructionists … want women to have all the rights they had in 1787.” Yes, this is just the sort of fine and balanced legal mind, with a great grasp of conservative judicial principles, that the ABA puts in charge of evaluating judicial nominees.

What’s even odder about law professor Nance’s membership on the committee is that the ABA says that appointment to the committee “is based on a lawyer’s possession of the highest professional stature and integrity.” But Nance is a law professor, not a lawyer. While she directs her law school’s pro bono practice, I see nothing in her bio to suggest that she is deeply engaged in the practice of law.

[Addendum (4:30): An experienced litigator writes to tell me: "I searched in Westlaw for Cynthia Nance as counsel in all state and federal courts and found not a single case. Of course most state trial court opinions are not on Westlaw, but someone with even moderate litigation experience would be all over Westlaw."]

Perhaps the ABA committee has had members before who were law professors rather than lawyers, but I don’t recall any. (I will amend this post if I learn of any.)

So how and why is Nance even on the committee?

2. The ABA’s supposed check against a hostile lead investigator is to have a second investigator conduct a supplemental evaluation of the nominee in those instances in which the lead investigator recommends a “Not Qualified” rating.

So if you’re the head of the committee, whom would you select to ensure that ideological bias isn’t warping the process? Probably not a very liberal lawyer from San Francisco. But that’s exactly what the ABA did.

Laurence Pulgram, the second investigator, is a member of the left-wing Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. He has a history of political donations to folks like Barack Obama, Hillary Clinton, Elizabeth Warren, and Kamala Harris and to groups like MoveOn.org. If there’s a leftist cause missing from his Twitter feed, I didn’t notice it. All of this, of course, is his right, but it’s difficult to imagine that he would dare to disagree with, much less attempt to override, a lefty black female investigator’s objections to a conservative judicial nominee.

3. My own guess is that the opposition to the Grasz nomination was orchestrated (and I’m even willing to bet that I know who the ringleader was). Specifically, I suspect that opponents of the Grasz nomination fed an eager Nance a stream of lawyers who would echo each other’s charges.

One tell is the ABA’s statement that Grasz’s “professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.” Lawyers working with or against each other on cases would rarely have occasion to discuss “views of stare decisis,” and they’d expect any lawyer to advance whatever view helped him in a particular case. So it’s a safe bet that someone was circulating Grasz’s 28-year-old law-review article—and likely misrepresenting it, just as the ABA does—among folks eager to defeat his nomination.

Another oddity is the ABA’s contention that Nance and Pulgram supposedly “encountered a reluctance on the part of members of the Nebraska bar to respond to [their] inquiries” and that “many” who did respond “were concerned about possible repercussions from their participation.” (The particular passage is about Nance, but there’s something similar about Pulgram.) Consider me skeptical that any such concerns were genuine. Are we supposed to believe that Nebraska politics are run by the Mafia? Or might this just be a clever way to try to discredit the overwhelming publicly expressed support that Grasz’s nomination has received?

4. As I wrote more than a decade ago of the ABA’s outrageous trashing of Fifth Circuit nominee Michael B. Wallace, negative ratings of judicial nominees based on unsatisfactory judicial temperament are especially suspect because

assessments of judicial temperament are so subjective and manipulable. Indeed, it is striking to contrast the extrapolations made about Wallace’s judicial temperament from his experience as a litigator with the ABA’s unanimous conclusion a dozen years ago [in 1994] that federal district judge Lee Sarokin (whose record I discussed more fully here) was “well qualified” to be elevated to the Third Circuit. Despite the fact that the Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent,” the ABA had no concerns about his judicial temperament. But, of course, Sarokin was a nominee of President Clinton and was a self-described “flaming liberal” as a judge.

Bottom line: The ABA’s rating of Grasz does not deserve to be taken seriously.

ABA Committee Smokes Grasz—Part 2

by Ed Whelan

Numbering serially from my Part 1 post:

2. The ABA states that its lead investigator, law professor Cynthia Nance (about whom I will have plenty more to say later) “noticed that a number of lawyers were missing in the nominee’s report of his ‘10 most substantial litigated matters.’” In context, it seems to be insinuating that Grasz was trying not to identify attorneys who might be unfavorable to him.

Again, I can’t make heads or tails of the ABA’s charge. The Senate questionnaire (see question 17 on page 47) asks Grasz to list “principal counsel for each of the other parties” in his Top Ten list of litigated matters. Despite asserting that “a number of lawyers were missing,” the ABA doesn’t give a single example. On my own quick review of the Top Ten list, I see an opposing counsel identified in each case. Perhaps I’m missing something, but if the ABA thinks that there’s a failing here, it surely ought to have specified it.

One wonders whether there is a trivial disagreement over who was the “principal” opposing counsel or whether amici qualify as “parties.”

3. The ABA reports that Grasz’s “professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.” Insofar as such concerns rest on anything beyond what I’ve addressed in item 1, the ABA does not set forth any basis for them. So it’s impossible to address them.

It’s worth emphasizing that one cannot defend the ABA’s woeful lack of detail on this or other points by claiming that additional detail would violate the confidentiality of its sources. For under the ABA’s procedures, “the substance of the adverse information is shared with the nominee.” Further: “If that cannot be done” without violating the confidentiality of sources, “the information may not be relied on by the [ABA] Committee in reaching its evaluation.” (Report at 3.)

4. The ABA states that “a number of Grasz’s colleagues expressed the view” that he is “not ‘free from bias’”—specifically, that “he would be unable to separate his role as an advocate from that of a judge.” Here again, no specifics are provided beyond what I’ve addressed in item 1.

We don’t even get a hint of what “number” of colleagues expressed this view.

In modern parlance, “bias” is a loaded word. The ABA makes clear the first time it uses that word that it is not suggesting that Grasz bears any animus against any group of people. That important distinction might well be lost, though, the five additional times it uses that word or its cognates against Grasz.

5. The ABA states that “members of the bar shared instances in which Mr. Grasz’s conduct was gratuitously rude.” Amazingly, it doesn’t bother to give a single example of rude conduct by Grasz, so its claim is impossible to address.

Aside: According to Larry Tribe, as Josh Blackman reminds us, Sonia Sotomayor had a “reputation for being something of a bully” when she was nominated to the Supreme Court. (It was I, by the way, who uncovered and published Tribe’s letter to President Obama.)

6. The ABA alleges that “there was a certain amount of caginess, and, at times, a lack of disclosure [on Grasz’s part] with respect to some of the issues which the evaluators unearthed.” But once again it provides no specifics or illustrations, so it’s impossible to assess whether Grasz can fairly be faulted.

Something very fishy seems to be going on, as I will address further in my next post.

ABA Committee Smokes Grasz—Part 1

by Ed Whelan

President Trump’s nomination of Omaha lawyer, and longtime chief deputy attorney general of Nebraska, Steve Grasz to a vacancy on the Eighth Circuit has earned widespread praise. So it was quite a surprise when the American Bar Association’s judicial-evaluations committee informed the Senate Judiciary Committee yesterday that it has rated Grasz “Not Qualified” for the position.

As I will show in this series of posts, the ABA’s report is feeble beyond the point of incompetence.

Let’s dive right in to the report. The ABA spells out its concerns about Grasz in the five paragraphs on pages 5-7 of its report. I will address those concerns comprehensively, but in a somewhat different order than the rather slapdash presentation in the report.

1. The ABA contends that Grasz is not sufficiently able “to differentiate between the roles” of advocate and adjudicator.

a. As its first example, the ABA contends that there is an inconsistency between Grasz’s stated respect for stare decisis (that is, for binding precedent) and the views he expressed in a 1999 law-review article (and that it says he continues to adhere to). Selectively quoting that article, the ABA faults him for his supposed “suggestion that a lower court judge was entitled, in deciding the issue [whether a ‘partially born’ fetus has a right to life under the 14th Amendment], to question the jurisprudence of a superior court.”

But in the law-review article that the ABA criticizes, Grasz states (pp. 27-28):

Lower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so. However, a court need not extend questionable jurisprudence into new areas or apply it in areas outside of where there is clear precedent.

Read together, these sentences set forth an uncontroversial position. In order to create controversy, the ABA entirely omits the first sentence, and it then pretends that the second sentence, rather than setting forth a general proposition, is “referring to the Supreme Court’s rulings in Roe and Casey.” Yes, Grasz applies that general proposition to the question whether Roe v. Wade and Planned Parenthood v. Casey speak to the legal status of “partially-born human beings,” but, much as the ABA would have the reader think otherwise, he isn’t concocting a special rule for abortion precedents.

The ABA again misrepresents Grasz’s stated views when it claims that in that law-review article he “further argued that, because ‘abortion jurisprudence is, to a significant extent, a word game, the lower courts … should have construed the 14th Amendment as granting a ‘partially born’ fetus [a] right to life that overruled a mother’s right to choose established in Roe and Casey.” But Grasz’s actual argument was that “the killing of partially-born children is inherently different from a true abortion”; that Roe and Casey therefore don’t govern the matter; and that a “partially-born human being” is a “person” under the 14th Amendment. There’s plenty of room to disagree with Grasz’s position, but that’s no excuse to distort it beyond recognition.

b. As its second and final example of Grasz’s supposed inability to distinguish between the roles of advocate and of adjudicator, the ABA finds “troubling” Grasz’s position that “his own pro-life agenda has no impact on his conclusion as to how a lower court could and should have avoided Roe and Casey.” It asserts that he “was unable to identify the lack of objectivity that his personal convictions had created.”

I have difficulty making heads or tails of this charge (perhaps because the ABA’s prose, here as elsewhere, is so muddled). If the ABA is complaining that Grasz’s position on the legal status of “partially-born human beings” is driven by his personal pro-life convictions, would it similarly complain that those who hold the contrary position are driven by their convictions in favor of abortion? If not, why not?

The answer, I suppose, is that the ABA has sub silentio assumed that Grasz’s position is legally wrong. But it hasn’t done any work to reach that conclusion. It would thus seem that it’s the ABA that is unable to distinguish between its role as advocate (of a radical abortion regime) and its role as adjudicator (of the merits of judicial nominees).

More to come.

This Day in Liberal Judicial Activism—October 31

by Ed Whelan

1972 — By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package — which turned out to contain heroin — that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

SCOTUSblog Praises Scalia Speaks

by Ed Whelan

Playing catch-up from my week away, let me highlight this excellent review of Scalia Speaks by SCOTUSblog’s book reviewer, law professor Ronald Collins. As Collins puts it succinctly, “If you would know Scalia the man, read Scalia Speaks.”

Collins provides a fine overview of the book, which he hails as “a skillfully selected and well-stitched anthology” that “offers a unique and useful addition to the Scalia section of the library.”

Alan Dershowitz’s NYT Review: Scalia Speaks Is ‘Marvelous’

by Ed Whelan

I’m delighted by retired Harvard law professor Alan Dershowitz’s glowing praise for Scalia Speaks in his book review in next Sunday’s New York Times. Dershowitz “loved arguing” with Scalia, and his review continues the argument. It also includes passages like these (emphasis added):

Reading “Scalia Speaks” — the marvelous collection of his speeches, lovingly compiled by his son and a former law clerk — brought Nino back to life for me. His words, even when read, are provocations to argue, disagree and think. They cannot be read passively. They cry out for dialogue. They demand answers — or surrender.… 

Liberal constitutional lawyers will continue to debate Justice Scalia many years after his death, because when it comes to jurisprudence, he was the most transformative jurist of our generation. His views cannot be ignored. That is his enduring legacy. But he was more than an influential justice. He was a great man, who lived life to the fullest — as a devout Catholic, a proud Italian-American, a devoted family man, a loyal friend, and a person of humor and culture who fondly remembered his roots in Queens and New Jersey. “Scalia Speaks” gives us a glimpse of the man, as I came to know and respect him, despite — no, because of — our arguments.