Sunday, May 22, 2016

For Trump, High Court List a Sop to Conservatives

      However improbable it may seen, Donald Trump has a problem with conservative Republicans who apparently worry less about his demagogic presidential campaign than about his suspect conservative bona fides. The presumptive Republican presidential nominee took one step toward neutralizing that problem last week [May 18] by offering a sop to conservatives: a list of 11 certifiable conservatives as potential Supreme Court nominees in a Trump administration.
      Trump raised expectations weeks ago by promising that he would pick a qualified candidate if he gets the chance to fill the current unfilled vacancy left by the death of the iconic conservative justice Antonin Scalia. The venerable conservative magazine National Review tweaked Trump by criticizing his “worrisome” delay in listing possible Supreme Court nominees. Trump put out his list of “representative” contenders later the same day.
      To be sure, none of the 11 is laughably unqualified to serve on the Supreme Court, belying the satirical prediction from the longtime political observer Norman Ornstein that Trump might choose Judge Judy for the bench. Instead, all 11 are sitting judges: six of them on federal courts of appeals, all appointed by President George W. Bush; and five others on state supreme courts, all appointed by Republican governors.
      Conservatives were generally encouraged, though some were wary. Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said all of the potential contenders have “a record of putting the law and the Constitution ahead of their political preferences.” Ed Whelan, a legal commentator and former Scalia law clerk, praised the list in comments to The New York Times but questioned whether Trump could be counted on “to pick folks like this” if actually in office.
      Liberal advocates voiced alarm. Nan Aron, president of the Alliance for Justice, collectively labeled the people on the list as “extremists.” In a quickly assembled report on the federal judges, the Alliance said they represented “a right-wing ideology that threatens fundamental rights and that favors the powerful over everyone else, especially individuals from historically marginalized communities.”
      Geographically, those on the list represent the American Heartland, with no one from either the Atlantic or Pacific Coast or Inside the Washington Beltway. Tellingly, none graduated from Harvard Law School. Eight are men, three are women, and, most significantly, all are white.
      The Alliance’s report and quick research by others help confirm the federal judges’ conservative bona fides. William Pryor Jr., an Alabaman serving on the Eleventh Circuit, once called Roe v. Wade  one of “the worst examples of judicial activism.” The Times notes that Raymond Gruender, a Missourian on the Eighth Circuit, authored a split decision upholding a South Dakota law requiring doctors to inform a woman that abortions “terminate the life of a . . . living human being.” Gruender’s Eighth Circuit colleague Steven Colloton, an Iowan, was part of the only federal appeals court panel out of nine to rule against the Obama administration’s plan to accommodate objections from religious nonprofits to providing contraception coverage for students and employees.
      Diane Sykes, a Wisconsian on the Seventh Circuit, is cited by the Alliance for upholding her state’s voter ID law and striking down Chicago’s handgun ban — positions eventually vindicated by the current Supreme Court. Thomas Hardiman, a Pennsylvanian on the Third Circuit, showed his Second Amendment bona fides by dissenting from a decision upholding a New Jersey law requiring applicants for a public-carry permit to show a “justifiable need” for the authority. Michigander Raymond Kethledge on the Sixth Circuit is marked down for upholding a law from his state prohibiting public schools from using payroll checkoffs to collect union dues from teachers.
      Among the five supreme court justices, the best known is the Texan Don Willett, who has attracted more than 45,000 followers to his Twitter account with often whimsical tweets, including some mocking slights about Trump. Willett has a following among legal conservatives for openly espousing libertarian sentiments that hearken to the anti-regulatory jurisprudence of the Lochner era.
      When the Texas Supreme Court struck down a state licensing scheme for eyebrow threaders, Willett wrote a concurring opinion that espoused what he called “the unalienable human right to pursue happiness without curtsying to government on bended knee.” Damon Root, senior editor of the libertarian magazine Reason, called it “perhaps the most libertarian legal opinion ever written.”
      The other state justices on the list are Colorado’s Allison Eid, Michigan’s Joan Larsen, Minnesota’s David Stras, and Utah’s Thomas Lee. The Alliance pleaded no time for research on the state justices; Larsen has been on the bench only nine months. But all clerked for conservative justices: Larsen for Scalia; and Eid, Lee, and Stras for Clarence Thomas. Among the federal judges, Colloton clerked for the late chief justice William H. Rehnquist and Kethledge for the moderate conservative Anthony M. Kennedy.
      The Trump list contrasts sharply with the current Supreme Court nominee, the veteran federal appeals court judge Merrick Garland. Trump’s candidates lack Garland’s long experience and, more significantly, any indicia of appeal across the ideological spectrum. “I would be surprised if there are any Democrats who would describe those individuals as ‘consensus nominees,’” White House press secretary Josh Earnest said. Trump had a different purpose in mind. He needed to find something to give to his conservative doubters: the promise of a Supreme Court seat as a political sop.

Sunday, May 15, 2016

For Juvenile Lifers, Wheels of Justice Grind Slow

      Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.
      Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago. The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended.
      Four months later, Douglas Berman, a professor at Ohio State University’s Moritz College of Law and leading expert on sentencing policy, says he knows of no prisoner yet who has been released as a result of the Supreme Court decision. In Louisiana itself, Montgomery’s lawyer is waiting for the Louisiana Supreme Court to act on his motion to remand the case to a trial court for further proceedings.
      The state justices may be awaiting developments in the state legislature. The Louisiana Senate voted 25-8 on Thursday [May 12] to approve giving so-called “juvenile lifers” a chance for parole after 35 years in prison if they had no disciplinary offenses for the previous year and had participated in education and skills training programs. A House committee approved a similar bill the day before.
      The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.
      The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases. In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.” Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”
      Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions. But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom.
      Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards. But Berman, who publishes the comprehensive blog Sentencing Law and Policy, notes that parole boards still give an inmate a “second bite at the apple” if a judge does not grant the inmate freedom.
      One Louisiana case suggests that Renwick may be overestimating judges’ receptivity to lowering sentences for juvenile lifers. In March, Criminal District Court Judge Byron Williams in New Orleans imposed the same life-without-parole sentence that Jeremy Burse had received three years earlier after being convicted in a 2010 robbery-murder committed when he was 15.
      Williams presided over a so-called Miller hearing that lasted more than five hours and then concluded that Burse’s offense still qualified for the most severe penalty possible. “[T]his court believes that when anyone picks up a gun, they should assume the consequences of that action,” Williams said, according to the Times-Picayune’s March 13 story on the case.
      Berman notes that one unsettled issue is whether judges or juries will decide new sentences for juvenile lifers. He says that the court in its earlier decision, Miller, appeared to favor judicial discretion, but that the new decision may require juries.
      In a line of cases beginning with Apprendi v. New Jersey (2000), the Supreme Court has generally required juries rather than judges to make any factual findings needed to raise a defendant’s sentence above the minimum prescribed by law. Berman sees Kennedy’s opinion in Montgomery as requiring proof of “irreparable corruption” before a life-without-parole sentence. “Montgomery seems to indicate that it’s not a procedure that’s important,” Berman says. “It’s actually a substantive conclusion.”
      Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share. In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act. “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.
      Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up. “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.
      For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether. “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”

Thursday, May 5, 2016

CRS Verdict on Garland: "Meticulous, Cautious Jurist"

       Senate Republicans are still refusing to do their job in the Supreme Court confirmation process nearly three months after Justice Antonin Scalia’s death. But the nonpartisan Congressional Research Service (CRS) is not shirking its responsibility to evaluate federal judge Merrick Garland as President Obama’s nominee to fill the vacancy on the high court.
      Scholars in CRS’s American law division took on the daunting task of synthesizing and evaluating Garland’s opinions and votes in 19 years on the federal court of appeals for the D.C. Circuit. The 81-page report, completed on April 27 and circulated earlier this week, is a model of CRS’s highly regarded work as the Library of Congress’s research arm for congressional offices.
      The report opens with an overview of Garland’s record and reputation and follows with an exploration of specific subject areas, all thoroughly documented with more than 600 small-print footnotes. The report is neither puff piece nor hatchet job and makes clear at several points that Garland, if confirmed, would be a different justice from Scalia.
      With that said, CRS’s verdict is clear even after the scholars acknowledge the hazards of predicting a justice’s future even with a long record on the bench beforehand. Garland, they write, “has been widely viewed as a meticulous and cautious jurist, writing with precision and an eye toward ensuring that the court does not overreach in any particular case.”
      In the same vein, the CRS scholars say that Garland has a “minimalist approach to judging” along with a seeming aversion to unnecessary disagreements with his fellow judges. He has dissented infrequently, they write, on average less than once a year.
      As further evidence of his judicial collegiality, they cite three cases in which Garland authored unanimous opinions for ideologically diverse panels on hot-button legal issues, including campaign finance. “Judge Garland’s ability to garner unanimous opinions in such cases . . . may demonstrate his willingness to prioritize collaboration above ideological rigidity in his work,” the scholars write.
      Even without getting into specific subjects, Garland’s record in that regard suggests one major difference from Scalia. Whatever else may be said about his tenure, Scalia clearly preferred his own views of the law to any different views of his colleagues. He compromised rarely, wrote separately often, and, as a result, authored relatively few noteworthy majority opinions under his name given his 29 years on the court.
      Garland’s record at the Supreme Court is better than average for lower federal courts. The high court has issued full opinions in only nine cases in which Garland has participated. In five of those, the justices agreed with the position Garland took. Comparatively, the court reverses about two-thirds of the cases it reviews with full opinion.
      Interestingly, one of the decisions Garland participated in that the Supreme Court reversed was the first of the high court’s Guantanamo decisions, Rasul v. Bush (2004).  Garland joined the unanimous three-judge panel in following an old precedent to rule that federal courts had no authority to review the detention of foreign combatants at Guantanamo. The Supreme Court voted 6-3, over a dissent by Scalia, to reverse course and allow habeas corpus suits by the Guantanamo prisoners.
      The CRS report delineates several differences between Garland and Scalia while conceding that in some areas Garland’s views are simply unknown because he has not had cases posing those issues. The blank spots include such important areas as constitutional civil rights law, abortion, and freedom of religion.
      On the important jurisprudential issue of statutory construction, Garland is a contrast to Scalia’s self-proclaimed commitment to strict textualism, with scant if any attention to legislative intent and none to legislative history. Garland has no “overarching” approach to statutory interpretation, the report says, but he appears to consider “multiple factors, including the text, structure, context, and history of specific statutory provisions.”
      In civil litigation, Garland is likely to be “more hostile” to business interests and more receptive to the plaintiffs bar than the conservative Roberts Court majority that Scalia helped form and in several cases led. On federalism issues, Garland is seen as having “no inclination to narrow Congress’s authority” vis-à-vis the states again in contrast to Scalia’s views. Garland may have a broader view of substantive due process than Scalia even though he joined an opinion rejecting a patient’s use of the doctrine to claim a right to use experimental drugs.
      Garland’s unanimous en banc opinion upholding a ban on campaign contributions by federal contractors suggests he is unlikely to join the Roberts Court majority in cutting down campaign finance regulations. Garland’s critics view him as a likely naysayer of another Roberts Court initiative: the Second Amendment gun rights decision in Heller, authored by Scalia. The CRS scholars acknowledge that Garland voted at the D.C. Circuit to rehear the panel’s decision in that case striking down the District of Columbia’s handgun ban, but they the vote as little evidence of Garland’s view on the issue.
      The CRS report confirms the dominant picture of Garland of a moderate consensus-builder that has emerged since his nomination. It also shows that a confirmation hearing has much to explore, and the public much to learn, from his televised testifying from the witness table. Despite their public stance, the Senate Republicans’ refusal to convene such a hearing is preventing the American people from having a voice in who the next Supreme Court justice will be.

Friday, April 29, 2016

At High Court, Lower Standards for Public Officials?

      Bob McDonnell, former governor of Virginia, may end up beating the rap for all those gifts he got while in office from a snake oil salesman seeking help from the state government. Judging from Supreme Court arguments earlier this week [April 26], five or six of the justices seem ready to agree with McDonnell’s attorney and his many supporters that McDonnell’s public corruption conviction threatens the very nature of representative government in 21st century United States.
      A ruling for McDonnell seems unlikely to revive the political fortunes of the one-time rising Republican star. But a broadly written decision to throw out the convictions will hamper future public corruption prosecutions and make the practice of “pay for play” all the more common than it already is: mostly legal if done with a wink and a nod.
      A federal court jury of McDonnell’s peers (or perhaps his betters) convicted the former Republican chief executive of eleven counts of fraud in September 2014 after 17 hours of deliberation following a six-week trial. Ever since the scandal was first aired in the news media and then in court, McDonnell has stoutly maintained his innocence.
      McDonnell insists that he never really did anything for the gift-giving diet supplement executive Johnnie Williams except meet with him, host events, and arrange meetings. The jury was not buying it, but McDonnell’s appellate attorney Noel Francisco made more headway with the argument at the Supreme Court.
      Francisco urged the justices to rule that for a public official to engage in an “official act” under federal anti-corruption statutes the official “must either make an official decision or urge someone else to do so.” The line, Francisco said, is between “access to the decision-makers” — apparently OK — “and trying to influence those decisions.” Despite setting up the meetings, McDonnell never actually urged state regulators or university researchers to help Williams market or prove the efficacy of his Star Scientific diet supplement Anatabloc.
      The justices probed Francisco’s arguments, but more politely than customary for a bench that remains very hot even after the volatile Antonin Scalia’s death. When the government’s lawyer Michael Dreeben took the lectern, however, he encountered tough questions quickly — first from Chief Justice John G. Roberts Jr. and then the other two justices at the court’s ideological center, Anthony M. Kennedy and Stephen G. Breyer.
      Silent during Francisco’s argument, Roberts began by quoting what he called an “extraordinary” amicus brief filed on behalf of White House counsels for the five past presidents. They all warned, Roberts said, that upholding McDonnell’s conviction would “cripple the ability of elected officials to fulfill their role in our representative democracy.”
      Breyer too worried about public officials unclear about where to draw legal lines and about executive branch prosecutors with “dangerous” powers to go after legislators. “My problem is the criminal law as the weapon of choice,” he said.
      The gifts that Williams lavished on McDonnell and his now estranged wife came to $175,000 in all, according to the government’s estimate. They are too numerous and too petty to mention all in a column, but among them a personally inscribed Rolex watch, golf equipment, golf outings, a vacation, and an outright undocumented five-figure loan. The justices, however, came up with hypotheticals that reduced the legal issue to trifles: an afternoon of trout fishing, Roberts suggested, or from Breyer a bottle of expensive French wine.
      Dreeben, a deputy solicitor general with 27 years in the office, did his best to answer the justices’ concerns in what was his milestone 100th argument before the court. Legalizing this kind of quid for public officials is a “recipe for corruption” and would send a “terrible message for citizens,” Dreeben said. But where’s the quo, Roberts asked. Dreeben stood his ground. Helping arrange “a preferential opportunity” that other citizens do not have is “official action,” he answered.
      When Francisco returned for rebuttal, Justice Ruth Bader Ginsburg put Dreeben’s argument to him, but Francisco similarly stood his ground. No crime, Francisco answered, if the official did not actually try to influence the outcome. Earlier, Justice Sonia Sotomayor had similarly challenged Francisco by suggesting that state officials certainly might have thought McDonnell was trying to influence them.
      To Breyer’s concern, Dreeben pointed to the pride of the U.S. criminal justice system: the jury. “There is a very critical protection here,” Dreeben said. “It’s the requirement of showing something beyond a reasonable doubt to a jury.” Kennedy was unmoved. “You’re going to tell the senators, the officials with the lunches, don’t worry,” Kennedy said, mockingly. “The jury has to be convinced beyond a reasonable doubt, and that’s tough.”
      Anti-corruption prosecutors and good-government types confront the stark reality that money is more and more the mother’s milk not only of politics but also of governance. And political practitioners are too clever to be constrained by straightforward quid pro quo bribery laws.
      Neither of the statutes used in the McDonnell indictment is a bribery statute as such. The Hobbs Act, aimed at labor unions when enacted in 1946, prohibits obtaining money “under color of official right.” The “honest services fraud” statute, enacted in 1988, prohibits depriving someone (think: constituents) of “the intangible value of honest services.” A jury found McDonnell guilty of conspiring to do both. Oddly, a majority of the justices seem ready to narrow those laws to hold public officials not to the highest but to a lower standard.

Sunday, April 24, 2016

A Shy Teen's Stand for Transgender Rights

      In years to come, Gavin Grimm may be remembered just as Rosa Parks is today for a seemingly simple act of self-assertion that helped bring the country closer to the Pledge of Allegiance ideal of liberty and justice for all.
       Parks’ refusal to yield her seat on a Montgomery, Ala., bus in 1955 helped spark the boycott of the city’s racially segregated bus system and in time repeal of the ordinance forcing black bus riders to the back. Gavin, a teen-aged transgender boy in Gloucester County in southeastern Virginia, wanted merely to use the boys’ restroom at his school and went to court to establish his right to use the restroom that corresponds to his gender identity instead of his biological sex.
      The Rosa Parks story is part myth: she was not the quiet, unassuming seamstress as often depicted but in fact the secretary of the local NAACP and an activist trained in civil disobedience. Gavin, on the other hand, appears to be nothing more than a somewhat shy, video game-playing teenager who wants to get about his school work without a lot of fuss. Today, however, he has become a national poster boy for transgender rights who says he hopes his legal fight “will help other kids avoid discriminatory treatment at school.”
      Gavin might have been spared his legal troubles but for the overwrought reaction of townsfolk in rural Gloucester County. Gavin, who was born female, came out to his mother as transgender in his freshman year and with his mother went to the Gloucester High School principal with the information at the start of his sophomore year in fall 2014. By then, he was taking hormone therapy, and he changed his name legally later that year.
      The school administration was “supportive,” according to the account in the appeals court decision in Gavin’s favor last week [April 19]. School officials “took steps to ensure that he would be treated as a boy by teachers and staff” and then, at Gavin’s request, allowed him to use the boys’ restroom. Gavin used the boys’ restroom for seven weeks “without incident,” according to the court, but the word that got out “excited the interest of others in the community.”
      The Gloucester School Board would have none of it even with Gavin and his mother in the audience at two meetings, in November and December. The meetings were sellouts: 27 people spoke at the first, 37 at the second, most of them at both in favor of the proposed policy segregating restrooms and locker facilities by birth sex instead of gender identity. As the court recites, speakers called Gavin a “young lady,” and one called him a “freak.”
      The board approved the policy by a 6-1 vote; the school responded by allowing Gavin to use a separate, single-user restroom. But, as Gavin related at trial, “Being required to use the separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as ‘different.’” Represented by American Civil Liberties Union lawyer Joshua Block, Gavin sued the school in June 2015, claiming that the policy violated the federal law known as Title IX that prohibits sex discrimination in public schools.
      The trial before senior federal judge Robert Doumar, a Reagan appointee now in his mid-80s, did not go well for Gavin. Doumar was unsympathetic on the facts and unconvinced on the law. Doumar characterized gender dysphoria as a “mental disorder” and resisted arguments from Block that it becomes a disorder only if untreated. With no medical training, Doumar doubted Gavin’s testimony that he had developed urinary infections from “holding it in” while at school.
      As for the law, Doumar held that “sex” under Title IX refers only to biological sex, not to gender identity. He discounted the legal opinion from the Department of Education’s Office of Civil Rights in January 2015 requiring schools to treat transgender students “consistent with their gender identity.”
      In a split decision, a three-judge panel of the Fourth U.S. Circuit Court of Appeals ruled Doumar was wrong on the law and sent the case back to him to reconsider Gavin’s request for an injunction allowing him to use the boys’ restroom as before. Doumar had reasoned that the harm to others outweighed any harm to Gavin. As Judge Henry Floyd wrote for the majority, the school board offered no evidence that Gavin’s use of the boys’ restroom was a safety issue.
      By remarkable coincidence, Floyd also wrote for a three-judge panel in 2014 in invalidating Virginia’s ban on same-sex marriages and the dissenting judge, Paul Niemeyer, dissented again in Gavin’s case. Like Doumar, Niemeyer simply denies transgenderism: boys are boys, girls are girls, end. With that view, Niemeyer viewed Title IX’s use of “sex” as “unambiguous” in referring to biological sex.
      On that point, law nerds will note that the case turns on what is called Auer deference after a 1997 Supreme Court decision. The ruling requires courts generally to defer to an agency’s interpretation of its own regulations. Back before Doumar — the appeals court declined to reassign the case — Gavin still faces a judicial minefield. But in an essay for Time, Gavin says the case has helped start a needed conversation. Some of his schoolmates opened up, he wrote, once they were exposed to the conversation. “And that,” he concludes, “is extremely, extremely important.”

Sunday, April 17, 2016

Conservatives on Skids Before Scalia's Death

      In baseball, the tie goes to the runner. At the Supreme Court, a tie goes to the lower court. Thus, when eight justices are evenly divided, the Court’s decision reads in its entirety, “The judgment is affirmed by an evenly divided Court.”
      So far this term, Justice Antonin Scalia’s death has resulted in two 4-4 decisions. Conservatives won a minor victory in one that narrowed the federal credit discrimination law. But liberals scored the bigger win in Friedrichs v. California Teachers Association by rescuing from a likely overruling a 40-year-old precedent vital to the financial security of public employee unions. The justices’ individual votes are not announced in such cases, but the justices likely divided in each along the usual conservative-liberal lines.
      More deadlocks seem likely despite what Justice Elena Kagan has described as Chief Justice John Roberts’ efforts to avoid them. Conservatives are poised to prevail if tie votes emerge in two remaining big cases, both decided by the predominantly conservative federal appeals court for the Fifth Circuit.
      The justices appeared equally divided in arguments last month on a Texas law, upheld by the appeals court, that could force most of the state’s abortion clinics to close. And they may well be equally divided in arguments on Monday [April 18] as the Obama administration seeks to overturn the Fifth Circuit’s decision blocking the president’s policy of “deferred action” on an estimated 4 million undocumented migrants.
      Scalia’s death in February has deprived the court’s conservative bloc of the needed fifth vote to overcome a united bloc of four liberal justices. But the court’s decisions already announced in cases argued before Scalia’s death show that the Roberts Court, even with Scalia’s votes, was turning its back on some of the biggest items on conservative groups’ wish-lists.
      In a major setback for Republicans and conservatives, the court earlier this month rejected an effort to upset the established practice of using total population as the basis for applying the “one person, one vote” rule in redistricting cases. Republicans and conservative groups had invested time, money, and effort in a suit seeking to count eligible voters instead of total population in drawing equal-population districts.
      The proposed change was widely seen as likely to benefit Republicans by reducing representation in traditionally Democratic urban areas with significant numbers of noncitizens and children. All eight of the justices rejected the Texas voters’ argument to require eligible-voter population as the only basis for equalizing districts. Justice Ruth Bader Ginsburg’s opinion for six of the justices in Evenwel v. Abbott cast doubt on using voter population at all, but two conservatives — Clarence Thomas and Samuel A. Alito Jr. — suggested state and local government should have that as an option.
      Scalia’s vote in the case, argued in December, is undisclosed, but he was oddly silent during the arguments — suggesting perhaps that he recognized the plaintiffs’ argument as a nonstarter. In any event, Roberts and Justice Anthony M. Kennedy gave the liberal bloc two votes for throwing cold water on the proposed change.
      Roberts and Kennedy similarly sided with the four liberals in an important class action case decided in March. The 6-2 decision in Tyson Foods, Inc. v. Bouaphakeo upheld a $2.9 million award against Tyson for failing to pay meat plant workers overtime for the time spent in “donning and doffing” protective gear required for their jobs. Plaintiffs used a statistical study to estimate the “average” time required, but the company — backed by major business groups — wanted a flat rule against the use of so-called “representative evidence.”
      Kennedy rejected the argument. “A categorical exclusion . . . would make little sense,” he wrote. Thomas and Alito dissented. Scalia’s vote in the case, argued in November, is again undisclosed, but given his hawkish stance against class actions in previous cases he likely joined the other two conservatives in dissent.
      Kennedy also gave the liberal bloc a crucial vote in an earlier effort to make class actions more difficult for plaintiffs. In Campbell-Ewald Co. v. Gomez, the court in December blocked business defendants from thwarting potential class actions by offering the named plaintiff the full amount of his or her claimed damages. Ginsburg wrote the majority opinion; Thomas concurred in the judgment. Scalia was one of three dissenters, along with Roberts and Alito.
      The two most closely divided criminal law decisions of the term so far also ended with liberal rulings. In Montgomery v. Louisiana, the court decided that its earlier decision barring mandatory life-without-parole sentences for juvenile murderers applies retroactively. Scalia was one of three dissenters in the new decision, issued in January.
      This month, the court in Luis v. United States blocked the government from freezing a defendant’s legitimate assets if needed to pay his or her lawyer. The lineup in the 5-3 decision crossed usual ideological lines: Kennedy, Alito, and Kagan were the dissenters. Scalia’s vote is again undisclosed.
      The fragmentation of the conservative bloc underscores Senate Republicans’ stakes in blocking President Obama’s nomination of federal judge Merrick Garland as Scalia’s successor. In an earlier era, Garland could have won unanimous confirmation — as Kennedy did in 1988. But today’s Republicans are interested in confrontation, not consensus, with no regard for the effect on the court or its reputation.

Thursday, April 14, 2016

Much Ado About "Confirmation by Proclamation"

      It’s not enough that partisan Republicans are denouncing President Obama for trampling on the Constitution by, for example, exercising discretion on enforcing federal immigration laws. Now, a conservative website is suggesting with no evidence whatsoever that the White House may be behind the widely criticized suggestion that the president could install federal judge Merrick Garland on the Supreme Court without any action by the Senate.
      Gregory Diskant, a partner with the Wall Street law firm Patterson Belknap Webb and Tyler, put forth the idea in an op-ed published last week [April 8] in The Washington Post. The op-ed apparently was “the most [un]popular” article on the Post’s website over the weekend, producing “thousands of outraged comments,” according to LawNewz columnist Rachel Stockman.
      The conservative web site Breitbart followed with an equally critical story the next day [April 11], but reporter Ken Klukowski added the suggestion that Diskant might have been acting in concert with the White House. “[T]here is a serious possibility,” Klukowski wrote, “that he is floating a trial balloon for the White House, gauging the public’s willingness to accept such a fundamental change in the Constitution’s separation of powers and system of checks and balances.”
      Not since Shakespeare has there been more ado about so little. Diskant appears to be only the second person count ’em, two to raise in print the possibility of a unilateral presidential appointment to the Supreme Court. Richard Primus, a University of Michigan law professor, first broached the idea in an article in Politico [March 29]. “You could argue” that the president could bypass the Senate that way, Primus wrote. But a columnist for the Detroit News wrote later [April 13] that Primus “doubts” that Obama would do so.
      Ironically, Obama could have installed Garland on the Supreme Court in February by exercising his undoubted power to fill the vacancy while the Senate was in recess. Garland could have taken his seat and helped avert any 4-4 ties in the cases to be argued in February, March, and April. But Obama chose not to act even though Senate Republican Leader Mitch McConnell had already announced the plan to deny a hearing for whomever Obama might nominate.
      President Dwight Eisenhower twice used the recess appointment power to fill Supreme Court vacancies: Earl Warren in 1953 and William J. Brennan Jr. in 1956. The recess appointments were uncontroversial, and both Warren and Brennan went on to win Senate confirmation for full terms by voice votes.
      That was then, this is now. In his article, Diskant aptly suggested that the Senate Republicans’ refusal to consider Garland’s nomination is evidence of a “broken” system. He then went one step further to argue that Obama could treat the Senate’s failure to act a waiver of its “advice and consent” power under the Constitution and proceed to exercise his power to “appoint” Garland on his own.
      From available evidence, Diskant appears to have offered his suggestion of a unilateral presidential appointment for himself and no one else. He was identified as a member of the national board of the citizens’ advocacy group Common Cause, but the group’s position is to urge the Senate to follow normal procedure and old a hearing on Garland’s nomination.
      Diskant also identified himself as law clerk to the late justice Thurgood Marshall in the 1975 term, but he cited nothing in Marshall’s writings or any other Supreme Court opinion as authority for his view. He also claimed that there are historical precedents for such a unilateral presidential appointment, but cited no specific example.
      In his article, Primus imagined the possibility of a unilateral presidential appointment only if the impasse continued into the term of the next president. “At some point,” Primus wrote, “someone in the White House counsel’s office will notice that the Constitution doesn’t actually see that the Senate needs to vote to confirm a judicial nominee.” Primus was law clerk to Justice Ruth Bader Ginsburg, but he too cited no Supreme Court authority for his suggestion.
      Diskant’s op-ed carried this headline in the online version: “Obama can appoint Merrick Garland to Supreme Court if the Senate does nothing.” Three days later, the Post’s website carried a reply by Case Western Reserve law professor Jonathan Adler under the headline, “No, President Obama CANNOT appoint Merrick Garland to the Supreme Court does nothing.”
      Adler noted that Diskant’s suggestion had been criticized from the right by National Review commentator Ed Whelan (“gobsmacking stupidity”) and from the left by Center for American Progress legal affairs writer Ian Millhiser (“dumb”). Diskant’s argument, Adler concluded, “is extremely hard to take seriously.”
      Even so, Garrett Epps, columnist for, took the proposal seriously enough to treat it in a critical column [April 14] and attribute the idea to “a handful of [unnamed] progressives.” Epps, a friend, college classmate, and respected Supreme Court expert, thus feeds the suggestion that mischief may well be afoot.
      For better or worse, there is not. As far as the public record shows, the only people espousing the “progressive argument” for what Epps calls “confirmation by proclamation” are one law professor and one New York lawyer, neither with any evident ties to the White House. Whatever Republicans may think Obama has done to exceed his constitutional powers, there appears to no plans for a presidential putsch at the Supreme Court. Time to take a breath and relax.