More: Kim McLane Wardlaw Makes Her Mark

by Ed Whelan

As foreseen, the Supreme Court, in a unanimous per curiam opinion, has summarily reversed the divided Ninth Circuit ruling that would have required the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy. That’s yet another extraordinary slapdown of Ninth Circuit judge Kim McLane Wardlaw, who co-authored the Ninth Circuit ruling.

Year-End Invitation

by Ed Whelan

Please indulge my once-a-year pitch:

If you enjoy my posts here on Bench Memos and appreciate the impact that I’m having on the broader debate on constitutional issues and judicial confirmations, then I invite you to support the Ethics and Public Policy Center (in addition to supporting National Review). It’s my full-time position as president of EPPC that pays my salary and enables me to carry out my work, both here and elsewhere. Plus, I have a great team of colleagues at EPPC, including frequent NRO contributors George Weigel, Mona Charen, Yuval Levin, and Stanley Kurtz.

Farr-Fetched Attack

by Ed Whelan

In mid-October, the Senate Judiciary Committee favorably reported to the Senate floor President Trump’s nomination of Thomas A. Farr to a federal district vacancy in the Eastern District of North Carolina. The Left is now trying to stall further action on the Farr nomination on the flimsiest of grounds.

In 1990, the Department of Justice filed a complaint charging the 1990 Helms for Senate Committee with intimidating black voters in violation of the Voting Rights Act of 1965. The complaint alleged that the campaign sent postcards to black voters suggesting that they were ineligible to vote and could be prosecuted for voter fraud if they voted.

In answer to a written question from Senator Feinstein (see Q3 here), Farr testified that he played no role in the campaign’s decision to send the contested postcards and that he did not learn about the postcards until the Department of Justice sent a letter of complaint to the campaign and the campaign manager then called him for legal advice.

Gerald Hebert, who worked in DOJ in 1990, disputes Farr’s answer and claims that Farr “was certainly involved in the scheme as it was being developed.” In support of his claim, Hebert cites an entry he made in his diary back in 1990. That entry refers, among other things, to a meeting in Raleigh in “10/16 week” that appears to attribute to Farr the propositions that “Postcards [are of] limited use,” that the campaign “Need[s] to focus [given] only 3 weeks left Before Election Day,” that the state election boards “will be our Ballot Secur[ity],” and that “Postcards can be used for post[-]election challenges.”

Two new letters—one from Carter Wrenn, the Helms campaign manager in 1990, the other from Farr himself, responding to questions from Senator Cory Booker—demolish Hebert’s claim.

In his letter to Senator Thom Tillis, Wrenn indicates that Hebert is conflating into a single “scheme” two very different events. Farr was among those at a meeting “on October 16th or 17th” with a consultant proposing to do a ballot-security program. Among the ideas the consultant raised at the meeting was a postcard mailing to identify voters who no longer lived at their registered address. As Farr testifies in his letter, he told the meeting participants that “there was no reason to do a card mailing in 1990 because North Carolina law had been changed and returned cards could not be used to challenge voters.” (He also said that the campaign “might decide to attempt to use returned cards in a recount,” though he “was doubtful of the utility of any card mailing, even in a recount.”)

As Wrenn explains, a second and separate undertaking was the postcard mailing that was the target of the DOJ complaint. Specifically, in “late October of 1990, one of the staff brought me a copy of the postcard they wanted to mail for me to approve”:

It was near the end of the election, there was a new problem very five minutes, and the postcard sat on my desk a couple of days until the staffer returned and said, You need to approve that card today. I said, Go ahead and send it. Instead of stopping to think, review the card, or seek a legal opinion, I said send it.

Wrenn confirms Farr’s testimony that he first contacted Farr about the postcard after receiving a DOJ letter about it: “Up until that time, Tom hadn’t seen the card that had been mailed, did not know it had been mailed, or know who it was mailed.” As Wrenn points out, “the actual postcard that was mailed could not have been discussed [at the mid-October meeting] because it did not exist at the time.”

In his letter, Farr forcefully reiterates that he “played no role whatsoever in drafting the [contested] card, providing counsel on the card, deciding to mail the card, or identifying those who would receive the card.” Indeed:

When I first saw the language on the card after it had been mailed and was advised as to whom it had been mailed, I was appalled. I immediately recommended that the Helms Committee cancel their 1990 ballot security program which they did. I then spent the next several months working with the Justice Department to resolve the matter with a consent decree.

As Farr points out, the fact that the Justice Department, after its extensive investigation, did not name him as a defendant in its civil action reflects and confirms the simple reality that he was not involved in any way with the postcard—that he “did not know about the mailing of the card, its contents, or its recipients until after it had been mailed.”  

I’ll further highlight that Farr received a unanimous “well qualified” rating from the American Bar Association’s judicial-evaluations committee, which means, per the ABA Backgrounder, that it determined (among other things) that he has the “highest reputation for integrity.” (There is no inconsistency in crediting the ABA’s favorable ratings of conservative nominees and being suspicious of its unfavorable ratings of them, as the very concern is that the ABA is biased against conservative candidates.)

By the way, according to this Huffington Post article trumpeting Hebert’s claim, Hebert “didn’t work on the case [concerning the controversial postcard] directly.” Rather, he “talked frequently with the two lawyers who did,” and his diary entries reflect his understanding of what they told him. Further, far from being a neutral observer, Hebert works for the Campaign Legal Center, which has litigated against Farr on election matters, and one critic of Hebert has criticized his “history of making things up about racial issues.”

This Day in Liberal Judicial Activism—December 20

by Ed Whelan

1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples.

2013—On the bench for barely a year, federal district judge Robert James Shelby refuses even to stay pending appeal his ruling that Utah’s marriage laws violate the federal Constitution. Shelby’s effort to sow chaos and thus alter the terrain while the appeal of his ruling is underway succeeds until the Supreme Court, more than two weeks later, finally blocks his ruling pending the completion of the appeals process.

What’s Eating Senator Kennedy?

by Jonathan H. Adler

Senator John Kennedy (R-LA) has emerged as an outspoken and effective critic of President Trump’s judicial nominees. He is the lone Republican Senator to have voted against one of the Trump Administration’s appellate nominees (Greg Katsas, who was nonetheless confirmed to the U.S. Court of Appeals for the D.C. Circuit), and he led the charge against some of the Administration’s district court nominees, three of which have been withdrawn. 

While Senator Kennedy presents himself as a guardian of judicial virtue seeking no more than to ensure all judicial nominees are suitably qualified, some suspect other factors may be at work. At one recent Senate Judiciary Committee hearing, the Senator seemed irked that the Administration had nominated a well-regarded appellate litigator for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit instead of tapping one of the Senator’s friends from back home. 

An article in today’s Washington Post ponders reasons Senator Kennedy may have for attacking Trump’s judicial nominees beyond legitimate concerns about qualifications. As the article notes, the pattern of Kennedy’s attacks suggest he may be harboring a personal grudge against the White House counsel’s office and may have home-state electoral ambitions. While it is reasonable to argue that district court nominees lacking meaningful trial court experience are unqualified, any charge that Katsas was unqualified or unsuited for the federal bench is simply absurd. So there’s ample reason not to take all of Senator Kennedy’s concerns at face value.

This Day in Liberal Judicial Activism—December 19

by Ed Whelan

2002—On remand from a U.S. Supreme Court decision holding that Erie’s ban on public nudity does not violate the First Amendment, the Pennsylvania supreme court rules (in Pap’s A.M. v. City of Erie) that the ban’s targeting of nude dancing violates the state constitution’s guarantee of freedom of expression (which provides that “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty”).

2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to restore the state’s definition of marriage as a male-female union.

Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the Supreme Court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California: one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

2013—The five justices of the New Mexico supreme court unanimously rule (in Griego v. Oliver) that the New Mexico constitution requires that “same-gender couples” be allowed to marry.

This Day in Liberal Judicial Activism—December 18

by Ed Whelan

1997Best is worst. Best v. Taylor Machine Works, that is.

In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation.

In twisted confusion over which branch has the authority to make law, the court also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.” Under the “special” legislation pretense, it further strikes down the act’s abolition of the common-law doctrine of joint and several liability. And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”

On the Nomination of Matthew Petersen

by Carrie Severino

Matthew Petersen, President Trump’s most recent nominee to the U.S. District Court for the District of Columbia (“D.D.C.”), has come under fire following an exchange with Senator Kennedy, in which Senator Kennedy asked a series of questions designed to demonstrate that Peterson has not practiced as a trial lawyer.

Following that exchange, a parade of critics have argued that he lacks the qualifications to serve on the D.D.C. But does he?

Petersen currently serves as a Commissioner on the Federal Election Commission (“FEC”), and previously served as its Chairman, jobs that gave him significant exposure to the sort of regulatory cases that the D.D.C regularly decides. But apart from that, he has legal experience that matches or exceeds that of past nominees confirmed to federal district courts, including the D.D.C., and none other than the American Bar Association gave him a unanimous qualified rating.

By comparison, at the time of her nomination, now-Judge Alison Nathan of the Southern District of New York, one of the most prestigious district courts in the country, had never appeared in court and had eleven years of professional legal experience—short of the twelve years recommended by the ABA. In 2013, President Obama nominated Kentanji Jackson to the D.D.C. despite the fact that, according to her own filing with the Senate Judiciary Committee, she had not been responsible for trying cases; nor had she handled any cases that were tried to verdict. Judge Jackson was confirmed by a voice vote a mere two months after she was nominated. Likewise, Judge Jackson’s colleague on the D.D.C., Judge Randolph Moss, had tried one case to verdict at the time of his nomination by President Obama in 2014. Moss was confirmed 54-45.

I don’t remember CNN playing endless loops of commentary on the qualifications of Judge Nathan, Judge Jackson, or Judge Moss. Maybe they will now that they have discovered the virtues of the jury trial.

Petersen’s credentials to be a U.S. District Court judge in D.C. exceed those of these other (confirmed) Obama nominees. Following his graduation from the University of Virginia School of Law, Petersen worked at Wiley Rein LLP for several years, which is renowned for its regulatory practice. Petersen left Wiley Rein in 2002 to work on Capitol Hill, serving first as Counsel to the U.S. House of Representatives Committee on House Administration and then as Chief Counsel to the U.S. Senate Committee on Rules and Administration, one of the most consequential committees in that body. His work on the Hill included assistance drafting of the Help America Vote Act of 2002. So unlike most judicial nominees, he brings to his nomination rich legislative experience in both houses of Congress.

Petersen’s government service was not limited to one branch of government. Following his work in Congress, he has spent nearly a decade as a Commissioner of the FEC, serving twice as Chairman during his tenure. As a Commissioner, Petersen is responsible for administering and enforcing the Federal Election Campaign Act and Commission regulations. Although the nature of Petersen’s legal career has meant that he has not had the opportunity to appear in court, as an FEC Commissioner Petersen has extensive experience adjudicating cases at a major independent regulatory agency that in many ways mirrors a trial court: administrative agencies have discovery, motions, trial-like hearings governed by procedural and evidentiary rules, and post-trial appeals.

The relationship of such experience to the job of a trial judge led the ABA’s Standing Committee on the Federal Judiciary to explain in its evaluation criteria that “[d]istinguished accomplishments in the field of law or experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards . . . —may compensate for a prospective nominee’s lack of substantial courtroom experience” (emphasis added). The ABA has not applied that criteria very even-handedly when it comes to conservative nominees, but that has not stopped the left from adhering to it as the gold standard for determining a nominee’s fitness for judicial service.

Furthermore, Petersen’s role as an FEC Commissioner has involved supervising FEC litigation before federal courts in the jurisdiction to which he has been nominated—from the D.D.C. to the U.S. Court of Appeals for the D.C. Circuit to the U.S. Supreme Court. Petersen has been involved with developing litigation strategy and editing briefs, motions, and other filings. Here are just a few of the major FEC cases that Petersen has overseen in the court to which he has been nominated, all of which would go on to be affirmed by the Supreme Court: Republican Party of Louisiana v. FEC, 219 F.Supp.3d 86 (D.D.C. 2016) (involving a challenge to soft money restrictions applicable to state party committees); Independence Institute v. FEC, 216 F.Supp.3d 176 (D.D.C. 2017) (involving an as-applied challenge to the Federal Election Campaign Act’s electioneering communications provisions); and Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011) (involving the constitutionality of the ban on foreign nationals making contributions and expenditures in connection with federal elections). And the list happens also to include the two most important Supreme Court cases concerning campaign finance and the First Amendment over the last decade: Citizens United v. FEC, 558 U.S. 310 (2010); and McCutcheon v. FEC, 572 U.S. __, 134 S. Ct. 1434 (2014).

Petersen’s extensive regulatory experience is all the more valuable for his nomination to the D.D.C, which hears more administrative law cases than any other federal district court in the country. Where Congress has authorized a district court challenge to an agency action, the cases have obvious jurisdiction in the District of Columbia, where all federal agencies are located (and many if not most of these cases are in fact brought in the D.D.C.). Less than one percent of the district’s docket during the previous fiscal year consisted of jury trials.

Say what you want about Peterson’s exchange with Senator Kennedy, and whether he should have done a better job of answering questions or informing the Senator about the depth and relevance of his experience. The fact remains that there are three branches of the federal government and Peterson has distinguished himself in two of them while being extensively involved in the work of the third. Serving as a member of a major regulatory commission like the FEC, and also as its chairman, is an extraordinary experience that very few lawyers ever achieve, and it relates directly to the kind of work Peterson would be doing on the D.D.C.

Judicial Nominations Update

by Carrie Severino

President Trump, Senate Majority Leader Mitch McConnell, and Senate Judiciary Committee Chairman Chuck Grassley made history this week, as the Senate confirmed L. Steven Grasz, Don Willett, and James Ho (the tenth, eleventh and twelfth circuit court nominees confirmed this year). This represents the most federal circuit court nominees ever confirmed during a president’s first year in office. The President, Leader McConnell, and Chairman Grassley have made a significant and lasting impact on our federal courts through their efforts to confirm outstanding federal judges over the course of this year, and deserve recognition for this historic achievement.

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

Number of current and known future vacancies: 163

Courts of Appeals: 19

District/Specialty Courts*: 144

Number of pending nominees for current and known future vacancies: 43

Courts of Appeals: 6

District/Specialty Courts: 37

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

Nominees Awaiting Floor Votes: 25

Courts of Appeals: 0

District/Specialty Courts: 25

Nominees Confirmed by the Senate: 19

Supreme Court: 1

Courts of Appeals: 12

District/Specialty Courts: 6

This Day in Liberal Judicial Activism—December 15

by Ed Whelan

2015—In the face of uniform rulings of the federal courts of appeals holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, California federal district judge Dean D. Pregerson rules that Title IX’s bar on sex discrimination by schools receiving federal funds is a bar on sexual-orientation discrimination.

Pregerson doesn’t suggest that there is any reason to read Title IX differently from Title VII on this point. On the contrary, he invokes Ninth Circuit precedent holding that the legislative history of Title IX “strongly suggests that Congress meant for similar substantive standards” to apply under the two statutes, and he affirmatively relies on the EEOC’s recent Title VII ruling that contradicts the uniform federal appellate rulings.

Ho, Ho, Ho!

by Ed Whelan

With the Senate’s confirmation today of Fifth Circuit nominee James Ho, President Trump has now had twelve nominees to the federal court of appeals confirmed this year – on top, of course, of the confirmation of Supreme Court justice Neil Gorsuch. Twelve sets a record (I’m reliably informed) for the most federal appellate nominees ever confirmed during a president’s first year in office.

Congratulations go first and foremost to President Trump but also to Senate majority leader Mitch McConnell, Senate Judiciary Committee chairman Chuck Grassley, and White House counsel Don McGahn. Special credit also goes to former Senate majority leader (and Democrat) Harry Reid, whose leadership in abolishing the filibuster for lower-court (and executive-branch) nominees back in November 2013 paved the way for this achievement.

The caliber of the confirmed appellate judges is as impressive as their number. Overall, they have excellent credentials (seven of the twelve, by my quick count, clerked for Supreme Court justices) and reputations, and six of the twelve are on Trump’s list of Supreme Court candidates.

This Day in Liberal Judicial Activism—December 14

by Ed Whelan

2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth: The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.” Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations. The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

This Day in Liberal Judicial Activism—December 13

by Ed Whelan

1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972.

In the meantime, the Court issues its ruling in Eisenstadt v. Bairdwhich extends a right to contraception to unmarried persons. (See This Day for March 22, 1972.) Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple of extraneous words: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

2013—“To put it simply, polygamy is now lawful in Utah.” That’s how the winning attorney for Cody Brown and his “Sister Wives” of reality-show fame celebrates federal district judge (and Bush 43 appointee) Clark Waddoups’s remarkably strange and rambling opinion in Brown v. Buhman.

Beyond relying extensively on leftist academic Edward Said’s theory of “orientalism,” Waddoups rejects the Utah Supreme Court’s authoritative reading of one part of Utah’s anti-bigamy statute, and he unpersuasively concludes that the cohabitation prong of the statute has been enforced in a discriminatory manner against those engaged in “religious cohabitation.”

In May 2016, the Tenth Circuit will rule that Waddoups should have dismissed the case as moot after prosecutors adopted a policy under which Brown and his wives would not face prosecution. The Tenth Circuit orders Waddoups to vacate his judgment.

This Day in Liberal Judicial Activism—December 12

by Ed Whelan

2013—Some things are most fittingly done in the dark of night. Shortly after midnight, the Senate, with 51 yea votes, confirms President Obama’s nomination of hard-left law professor Cornelia Pillard to the D.C. Circuit.

The confirmation of Pillard follows in the wake of Senate Democrats’ abolition of the judicial filibuster. Even three Senate Democrats vote against the Pillard nomination, and not a single Republican votes for it.

During her confirmation process, Pillard was described by some lawyers who know her well as “Reinhardt in a skirt but less moderate” (that’s a reference to Ninth Circuit arch-activist Stephen Reinhardt) and as someone who threatens to be “the most left-wing judge in the history of the Republic.”

Scalia Speaks Events in Alabama, Pensacola, and Dallas

by Ed Whelan

I have a busy week on the road discussing Scalia Speaks.

As it happens, I’ll be in Alabama tomorrow (Tuesday, December 12)—the day of the special Senate election between Roy Moore and Doug Jones—for a lunchtime event with the Birmingham lawyers chapter of the Federalist Society. (Time allowing, I hope to visit the civil-rights history museum in Birmingham.)

On Wednesday, I have a lunchtime event with the Federalist Society’s Montgomery lawyers chapter and an evening event in Pensacola with its Emerald Coast lawyers chapter.

Then on to Dallas on Thursday for an evening event co-sponsored by the Dallas and Fort Worth lawyers chapters of the Federalist Society.

This Day in Liberal Judicial Activism—December 11

by Ed Whelan

2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years earlier—when it first ruled that Ohio’s existing system of financing its public-school system somehow 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”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.” The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.

Some six months later, the court will finally end the litigation. Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.

2009—Federal district judge Nina Gershon rules that a provision of federal appropriations law that restricts funding of the scandal-plagued ACORN organization is an unconstitutional bill of attainder. In holding that the deprivation of the opportunity to apply for discretionary federal funds “falls within the historical meaning of legislative punishment,” Gershon finds “particularly instructive” the Supreme Court’s 1946 ruling in United States v. Lovett. But Lovett involved a permanent proscription on further employment in the federal government of three federal employees, not a temporary bar on applications for federal funding by an organization. Somehow Gershon doesn’t see fit to explore carefully whether these obvious differences matter.

In August 2010, a unanimous Second Circuit panel will reverse Gershon’s ruling.

This Day in Liberal Judicial Activism—December 9

by Ed Whelan

1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing marijuana plants) since he should reasonably have foreseen that the yard could be viewed over the fence or from aircraft. In dissent, then-chief justice Rosemary Barkett confuses the threshold issue whether a reasonable expectation of privacy existed with the logically subsequent question whether a police search based on an anonymous tip was reasonable.

Judicial Nominations Update

by Carrie Severino

Yesterday the Senate Judiciary Committee voted to advance three U.S. Court of Appeals nominees to the Senate floor for confirmation votes: L. Steven Grasz, nominee to the U.S. Court of Appeals for the Eighth Circuit; Don Willett, nominee to the U.S. Court of Appeals for the Fifth Circuit; and James Ho, nominee to the U.S. Court of Appeals for the Fifth Circuit. This morning, Senate Majority Leader Mitch McConnell filed motions to invoke cloture on the Grasz, Willett and Ho nominations, setting up confirmation votes for them next week. Currently there are 28 federal judicial nominees awaiting floor votes, including these three court of appeals nominees.

Senate Judiciary Committee Chairman Chuck Grassley also announced that Lisa Branch, nominee to the U.S. Court of Appeals for the Eleventh Circuit, is scheduled for a Judiciary Committee hearing next Wednesday, December 13th. This will be the last nominations hearing scheduled for 2017. By the end of the year, 13 court of appeals nominees and 34 district court nominees will have received hearings this year.

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

Number of total current and known future vacancies: 162

Courts of Appeals: 23

District/Specialty Courts*: 139

Number of pending nominees for current and known future vacancies: 46

Courts of Appeals: 9

District/Specialty Courts: 37

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

Nominees Awaiting Floor Votes: 28

Courts of Appeals: 3

District/Specialty Courts: 25

Nominees Confirmed by the Senate: 16

Supreme Court: 1

Courts of Appeals: 9

District/Specialty Courts: 6

This Day in Liberal Judicial Activism—December 8

by Ed Whelan

1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude.

In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.”

Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing. The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.” Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.” Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

Washington Post Runs Column by Obscure “Conservative” Who Says Justice Thomas Should Resign

by Carrie Severino

Jay Kaganoff, a freelance writer and self-described conservative, wrote in yesterday’s Washington Post that in this “new environment” of recognition of the severity of sexual harassment, Justice Clarence Thomas should resign. Not because of any new allegation involving the justice, but because he believes the allegations Anita Hill made against him during the Senate Judiciary Committee’s notorious nomination hearings of 26 years ago. The allegations themselves went back to the period between 1981 and 1983 when Hill worked under Thomas, first at the Department of Education and later at the EEOC.

I don’t know who Jay Kaganoff is—some have suggested he doesn’t actually exist—but I do know Justice Thomas. I worked with him closely for a year as his clerk, and Hill’s testimony is completely at odds with the man I know. But her story is implausible for a host of other reasons, from internal inconsistencies, to contradiction by contemporaries, to outright perjury. Since Kaganoff has brought up this slander again, I wanted to take the opportunity to respond.

By his own account, Kaganoff’s epiphany was not recently deciding he believed Hill—all along, he writes, he did not doubt her—but believing that what she alleged mattered in the wake of Harvey Weinstein, Louis C.K., Roy Moore, and Kevin Spacey. That these men offer an inapt comparison should be obvious—not just by the severity of the accusations against them, but by the sheer volume of credible evidence they faced.

Kaganoff might appreciate this if his review of the evidence were not so superficial. He describes Hill’s testimony with a one-sentence reference to a leaked affidavit she initially had prepared for the Senate Judiciary Committee in September 1991 alleging that Thomas had asked her out on dates and made sexually charged comments. In the next sentence, he summarily notes with no elaboration that after she “gave her testimony, she was viciously smeared,” as if her committee testimony flowed seamlessly from her earlier statements.

In fact, she had preceded her committee testimony with the affidavit and a September 23 interview with the FBI that differed so much from her later testimony, both interviewing FBI agents produced affidavits detailing what one of them called “comments that were in contradiction with” her earlier statement. In short, they attested that none of Hill’s specific, headline-grabbing charges about Thomas during the hearing—allegations of lurid references to himself, to a pornographic movie character, and to an indecipherable description of a Coke can—had been made during their interview despite their request for any such information. To the questioning senators who were wondering why they were hearing these allegations for the first time, Hill testified that an interviewing agent advised her that she did not need to discuss subjects that were too embarrassing. Both FBI agents also repudiated this part of Hill’s testimony, stating in their affidavits that the interviewer had asked her to provide specifics of all incidents.

Even more telling, every witness who knew both Thomas and Hill stated they believed Thomas. A dozen women who worked with Thomas testified to the Senate Judiciary Committee (one by affidavit) with strong statements defending his character, such as describing the allegations against him as “unbelievable” or “totally preposterous” or deeming him “absolutely incapable of the abuses described by Prof. Hill.”

Not one coworker of Hill supported her allegations. Indeed, in weighing the evidence, Thomas is the inverse of Harvey Weinstein et al.: his defenders are about as numerous as the real predators’ accusers.

Incredibly, Kaganoff is either unaware of or chooses to ignore the entire throng of witnesses for Thomas and makes mention of supposed witnesses only for Hill: “[S]he had witnesses whom the chairman of the Judiciary Committee, Sen. Joe Biden of Delaware, did not call up.”

That is an uncharitable summary of Biden’s interest in hearing from witnesses given that he called all four witnesses Hill claimed to have spoken to about her allegations during the relevant time period. Her chief corroborating witness was law school classmate Susan Hoerchner, who had earlier spoken to committee staff both by telephone and by a transcribed interview. She had offered vague, inconsistent recollections of a single conversation she repeatedly testified occurred months before the time Hill alleged Thomas’ misconduct would have begun—and in fact before she even began working for him. She changed that testimony to claim uncertainty as to the time frame after Hill’s attorney, Janet Napolitano, called for a break to speak with her. Although Hill had initially claimed Hoerchner as her only corroborating witness in her FBI interview, she later claimed she told three other witnesses, none of whom could recall Hill mentioning any sexually graphic details, and two of whom could not recall her naming the supervisor she mentioned to them.

The search for adverse testimony from others who worked under Thomas yielded statements to the committee from two other women, Angela Wright and Sukari Hardnett, but both stated that they were not accusing Thomas of harassment. Wright, the only woman to make allegations of specific comments from Thomas comparable to Hill’s allegations, has been cast in retrospect by many Hill defenders as the “second woman” denied a place at the hearing. (That was also how she was depicted in HBO’s 2016 movie Confirmation, a grossly misleading hatchet job that has been thoroughly discredited here, here, here, here, and here, among other places.)

The truth is that Biden, who was happy to air during prime time the spectacle of Hill’s testimony and would vote against Thomas, realized Wright had little credibility. Thomas had fired her for using a homosexual slur against a coworker; she had said she wanted to “get him back;” and she had made baseless accusations of racism to tank the nomination of a former supervisor who had authorized her termination from another job. Indeed, Senator Arlen Specter, a member of the Senate Judiciary Committee who took a leading role in questioning the Thomas hearing witnesses, wrote in his memoir Passion for Truth that some of his Republican colleagues wanted Wright to testify because “[h]er credibility was so poor that it would tar Hill and help Thomas.” Biden instead had her transcribed interview entered into the record unrebutted.

Kaganoff does not acknowledge a single one of the above factors, as one would expect him to in any careful weighing of evidence. He attempts in one sentence to discredit Thomas: “[I]f he was dishonest about the [pornographic] videos, it’s conceivable that he lied about the rest, too.” His premise is a reference to a post-hearing investigation by journalists of Thomas’ personal consumption of pornography, a subject about which he could not have lied because he was never asked about it. (By not broaching the subject, the Committee salvaged a morsel of its dignity.) Kaganoff’s conclusion makes no sense.

But he is correct in his broader premise that if a witness lies under oath on one matter, it can undermine the credibility of the witness’ other testimony. If only Kaganoff attempted an analysis of Hill’s testimony with this in mind.

During the hearing, Specter asked Hill about a USA Today article reporting that Senate staffers told her that producing an affidavit alleging sexual harassment would “quietly and behind the scenes” compel Thomas to withdraw his name. Although the conversation would have happened within approximately one month of her testimony (in contrast to her allegations of a decade earlier), she repeatedly denied recalling any mention of Thomas’ withdrawal—or even that such a “comment would have stuck in my mind.” As Specter recounted, Chairman Biden reacted to this exchange by calling an early lunch recess, at which point he told his chief of staff, “Go down and tell her lawyers that if her recollection is not refreshed by the time she gets back, I will be compelled to pursue the same line of questioning the senator [Specter] did. Because it seems to me, she did what he said.”

After Specter resumed his questioning following the recess, Hill, apparently alarmed at the prospect of losing the committee’s Democratic chairman, not to mention being contradicted by other testimony, backtracked with an awkward admission that the discussions at issue included “some indication” that Thomas “might not wish to continue the process” as a result of her allegations. As late as 1998, Biden told Specter regarding her evasions, “It was clear to me from the way she was answering the questions, she was lying.” To be sure, Biden would distance himself from the spectacle over which he chaired and publicly claim to believe Hill; to do any less would be to defy the base of the Democratic Party, which quickly turned her into a totem of workplace harassment.

Other credibility problems stemmed from the fact that Hill followed Thomas from the Education Department to EEOC when he became chairman there. When asked why, she falsely testified she was in jeopardy of losing her job when in fact she was a protected employee and was asked by the incoming director to stay. Her attempt to skirt that contradiction was to testify she did not know of that protected status or who would replace Thomas, which put her word against that of former coworkers who contradicted her on both points. Hill also initiated contact with Thomas for years after she left EEOC, first denying it when asked but later backtracking when confronted with telephone logs documenting eleven such calls over eight years. Specter called Hill’s testimony “flat-out perjury.”

Yet Kaganoff asserts that “Hill . . . had no reason to lie and had supporting evidence.” On the latter point, he overlooks not only her difficulties with corroborating witnesses, but also her testimony that although she took notes documenting every assignment at work, she never maintained any written record of what she alleged about Thomas.

Without more information, it might be as speculative to close the door on possible personal motives as it would be to consider them. Political consequences, however, swirl around every nominee to the Supreme Court and other positions of national significance, leaving truth in constant peril of being sacrificed to partisanship.

In 1998, Hill went to bat for President Clinton on Meet the Press. When host Tim Russert asked about White House volunteer Kathleen Willey’s allegation the president had groped her, Hill agreed with Gloria Steinam’s argument that the allegations did not amount to sexual harassment: Willey was not “claiming that this behavior was severe and ongoing or pervasive enough that it became a condition of her employment” or that “she suffered any disadvantage because of this incident.” So “we aren’t talking about sexual harassment . . . even if we assume that what she said in her interview and the depositions are true.” It was a surreal moment, because Hill had just laid out the very argument that would preclude characterizing her allegations as sexual harassment.

Russert pressed on: “So we dismiss the president’s alleged behavior?” One could imagine Hill responding with outrage toward someone who faced allegations of outright assault—well beyond anything she alleged against Thomas—but no. Her response instead meandered through the sexual misconduct of past presidents and added, “I think what Ms. Steinem also says is that we have to look at the totality of the presidency and how has he been on women’s issues generally? Is he our best bet, notwithstanding some behavior that we might dislike? I don’t think that most women have come to the point where we’ve said, ‘Well, this is so bad that even if he is better on the bigger issues, we can’t have him as president.’”

Russert immediately followed, “Is that a double standard for a liberal as opposed to a conservative?” Hill responded that “it is a reality that we have to deal with. We live in a political world, and the reality is that . . . there are larger issues, larger issues other than just individual behavior.” In other words, yes. That may explain Hill’s glibness about allegations against Clinton. She expressed little of the empathy or credence for the allegations of Clinton’s multiple accusers she expected for herself.

I respect that Kaganoff identifies as a conservative and makes a conscious effort to avoid the trap of the political or ideological double standard. But his sources appear to be a product of that vice, with unfortunate consequences for those who rely on them in good faith.

Kaganoff recognizes that Hill’s evidence may not be “enough to stand up in the court of law”—and he is correct that the standard of proof in assessing a Supreme Court nominee need not be as high as in a criminal prosecution—but what an understatement! It would be an interesting exercise to see which count is higher: the number of credible witnesses for Thomas or the number of holes in Hill’s testimony. Either way, by the modest evidentiary standard of preponderance of the evidence, the case against Thomas did not come close to being made.