Bench Memos

2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.

2019—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”

In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See relevant excerpts from the report.)

The state of Ohio has filed an emergency application in the Supreme Court seeking a stay of last week’s 300-page three-judge district-court ruling that invalidated Ohio’s congressional districting map as an unconstitutional “partisan gerrymander.” I will pass over debating the merits of that ruling here.

As Ohio points out, what is particularly bizarre about the ruling below is that the court has given Ohio’s General Assembly only until June 14 to enact a new map. That deadline is some two weeks before the end of the Supreme Court’s term, when the Court is expected to issue its redistricting decisions in Rucho v. Common Cause and Lamone v. Benisek. Those decisions could well effectively overrule the district-court’s ruling on Ohio’s map.

The district court’s June 14 deadline is also bizarre in light of the fact that the court has recognized that a new map adopted as late as September 20 could be used for the 2020 congressional election. Indeed, the district court purports to be “committed to working with that timeline for establishing a remedial plan.” (Opinion, p. 294.)

So why didn’t the court stay its own ruling until the Supreme Court issues its decisions in Rucho and Lamone? Why is it pressuring the Ohio legislature to (as Ohio puts it) “waste substantial resources unnecessarily passing new legislation mere weeks before [possibly] learning that there is no need to do so”? Why did it not set a later deadline?

Ohio provides a perhaps overly delicate answer to these questions: “Unfair though it may be, a great many intelligent people on the street are likely to view the lower court’s decision as an attempt to evade or frustrate Supreme Court review.”

On Wednesday the Senate confirmed Judge Joseph Bianco to be President Trump’s 38th judge of the United States Courts of Appeals. Since 2006, Judge Bianco has served as a U.S. District Judge for the Eastern District of New York, where he was confirmed by voice vote and with the support of Senate minority leader Chuck Schumer (D-NY) fourteen years ago. Once so noncontroversial that he did not even require a recorded vote, Judge Bianco somehow managed to become so controversial in the intervening years that he was confirmed this week by a near party-line vote. Controversial on what basis? Because Senator Schumer says so.

Indeed, without citing any evidence whatsoever and ignoring Judge Bianco’s “well-qualified” rating from the American Bar Association, Schumer issued the following statement after Bianco and fellow Second Circuit nominee Michael Park were voted out of the Senate Judiciary Committee along party lines in March:

Another day, another partisan push by Senate Republicans for hard-right nominees to get lifetime appointments on the federal bench . . . Senate Judiciary Committee Republicans voted to advance the nominations of Michael Park and Joseph Bianco for the Second Circuit, despite objections from Senator Gillibrand and me.

The same Chuck Schumer who said in November 2005 while introducing Bianco at his Senate Judiciary Committee hearing that he was a “great, great guy” and that he was “proud to support someone as outstandingly qualified and well respected as Mr. Bianco” apparently changed his mind when President Trump decided to elevate Judge Bianco to the Second Circuit. Just another day in the Senate Democrats’ obstruct-at-all-costs approach to judicial nominations, a resistance effort that has only intensified since Justice Brett Kavanaugh’s confirmation battle.

Judge Bianco’s case proves that Senate Democrats are now more than comfortable openly flaunting their disrespect for the White House’s good-faith consultation process that produced consensus circuit court nominees from states represented by Senate Democrats including Illinois (twice), Michigan, Hawaii, New Mexico, Indiana, North Dakota, and even New York, with the relatively easy confirmation of another former district judge, Richard Sullivan.

What’s more, in addition to Schumer and Senate Democrats’ post-Kavanaugh non-engagement with the White House, we are now seeing a recurring bad-faith trend regarding their treatment of sitting district judges they previously recommended to Republican presidents. District judges who were previously considered non-controversial are now assailed as partisan hacks by the same home-state Senate Democrats who helped them ascend to the bench in the first place. The latest example is current U.S. District Judge Peter Phipps, President Trump’s newest nominee to the Third Circuit announced last week. Just over a year ago, Senator Bob Casey (D-PA) introduced Phipps to the Committee as a jointly recommended nominee to the U.S. District Court for the Western District of Pennsylvania. With the help of Senator Toomey, Senator Casey shepherded him to a voice vote out of Committee and to a unanimous confirmation vote by the full U.S. Senate in October.  In supporting his nomination to the U.S. District Court last April, Senator Casey praised Judge Phipps’s “academic record . . . experience . . . temperament . . . character, and of course . . . commitment to the rule of law. I think Peter Phipps does well on all of those criteria.”

What a difference a few months make. To most everyone’s surprise, within hours of Phipps’s nomination, Senator Casey took a page right out of the Schumer playbook and announced that he would oppose Phipps because he has “significant concerns about Judge Phipps’s judicial and constitutional philosophy.”  Since when?

After law school, Judge Phipps clerked for a judge nominated by President Bill Clinton. He spent the majority of his professional life as a career trial attorney in the U.S. Department of Justice. In the seven months Phipps has served as a district judge, he has not issued any decisions on hot-button issues.

Perhaps lack of judicial experience is the issue given that Senator Casey also stated that he does not believe “six months on [the district court] bench is sufficient experience or preparation to sit on the Circuit Court of Appeals.” Of course, the fact that Cheryl Krause, President Obama’s first Pennsylvania nominee to the same court, had no judicial experience whatsoever did not stop Senator Casey from returning her blue slip and voting to support her confirmation five years ago. Thus, history teaches that Senator Casey has not required judicial experience to support a Pennsylvania nominee to the Third Circuit—at least not when the President was of his political party.

Senator Casey’s only real objection to Judge Phipps is that President Trump has nominated him to the court of appeals. While some Senate Democrats negotiated with the White House in good faith on circuit court nominees earlier in the administration, those days are clearly over.  Currently there are only two circuit court vacancies without named nominees, although more vacancies are expected to arise before the 2020 election. The White House—and those who care about President Trump’s efforts to reshape the judiciary — should anticipate more gamesmanship from Senate Democrats. The Constitution grants the president alone the power to nominate judges, and as all but two past Senate Judiciary Committee chairmen have recognized, the blue slip was never intended to be a weapon to block nominees on ideological or political grounds. No one should be fooled by continued bad-faith efforts by Senate Democrats to avoid White House consultation under the guise of months-long screening processes or other procedural delays that are designed to run out the clock until 2020.

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.”  After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.

2011—In what Chief Judge Alex Kozinski’s dissent labels an “Article III putsch,” Ninth Circuit outlaw Stephen Reinhardt issues a 77-page majority opinion (in Veterans for Common Sense v. Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an en banc panel of the Ninth Circuit will reverse Reinhardt by a 10-1 vote, with even all five Clinton appointees on the panel voting against Reinhardt.

A number of states have passed first- and second-trimester abortion prohibitions in the past year or two. Some of these pieces of legislation, called “heartbeat bills,” prohibit abortion after the baby’s first sign of cardiac activity at six to eight weeks of pregnancy. Georgia governor Brian Kemp signed one of these bills this week.

Some sponsors of these bills may be motivated by the belief that they present an “ideal test case” for the Supreme Court. Others think that an abortion prohibition will “force” the Court to readdress Roe v. Wade. Neither of these assumptions is accurate. In fact, a prohibition on early abortions may be the type of law least likely to attract Supreme Court review.

First of all, the justices have given signs that they’re going to go slow on the abortion issue. And some legal commentators have suggested that Chief Justice Roberts will “manage” the pace of change. The justices declined to hear two abortion cases in December and have kicked the can down the road for months with others.

Some legal commentators have speculated that six justices will be needed in the “conservative majority” before the stage is properly set for an overruling case. This will take time and likely go beyond the 2020 election, requiring the reelection of President Trump.

Second, there are many abortion cases, some calculate as many as 20, in the federal courts at this time. Alabama’s “dismemberment law” prohibiting abortion, for instance, has been struck down by the lower federal courts, and the Supreme Court is considering whether to take the case (Harris v. West Alabama Women’s Center). But these may die in the lower courts. In January 2016, the Supreme Court refused to hear cases with first-trimester prohibitions from Arkansas and North Dakota.

Third, the Court simply doesn’t need a prohibition case to readdress Roe v. Wade. It can do so in any case in which an abortion limit arguably conflicts with Roe. As Justice Scalia wrote in 1989 in the Webster decision, “The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else.” Likewise, Justice Kennedy saw the Pennsylvania law in Casey as a “challenge” to Roe, even though the law contained no prohibition on abortion.

Fourth, and possibly most significantly, it has long been the media’s approach to covering the Supreme Court, even among those who know better, to characterize the justices as “approving” a law they uphold and “disapproving” a law they strike down. This is a position that the justices in the current five-member conservative majority would almost certainly disavow. A judge committed to applying the original public meaning of the Constitution would believe that his decision is a matter not of “approving” the public policy but of whether the law is consistent with the Constitution. For example, in the travel-ban decision last June (Trump v. Hawaii), Chief Justice Roberts wrote: “We express no view on the soundness of the policy.”

And yet if the Supreme Court upholds the constitutionality of an early prohibition of abortion in the context of overturning Roe v. Wade, the media will portray the conservative justices as having “approved” the abortion prohibition. It’s entirely possible that the justices want to avoid such a public position. And they can readily do so, given their complete discretion in choosing which cases to decide and on what time frame.

Thus, they could pick a non-prohibitory law that is challenged as conflicting with Roe as the vehicle to reexamine Roe. The Court did that in Webster in 1989 and Casey in 1992: Neither case involved an abortion prohibition, yet the Court reexamined Roe in both cases.

So, from an institutional standpoint, the justices might see it as more favorable to readdress Roe in a case involving an ultrasound informed-consent law, a law supported by majority public opinion, rather than address an early prohibition of abortion. Not that it will necessarily do so any time soon, or without a sixth justice.

In a ruling on Monday (in Falls Church Medical Center v. Oliver), senior federal district judge Henry E. Hudson (a Bush 43 appointee) held that a 1975 Virginia law that allows only licensed physicians to perform abortions cannot be enforced against abortions in the first trimester. On initial read, I find Judge Hudson’s ruling on this issue very puzzling—indeed, deeply troublesome—in several respects:

1.Hudson acknowledges that the challenge to the physician-only law, “if waged by Plaintiffs as a facial challenge, … could face a formidable arsenal of countervailing authority.” (Slip op. at 16 (emphasis added).)

The Supreme Court in Planned Parenthood v. Casey (1992) noted with approval that “[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others.” (Hudson quotes the first part of this passage, but not the second.) On that basis, the Court upheld a requirement that a licensed physician, rather than a qualified assistant, provide the information relevant to informed consent. Likewise, in Mazurek v. Armstrong (1997), the Court summarily reversed a Ninth Circuit ruling against a licensed-physician-only abortion law and emphasized “our repeated statements in past cases … that the performance of abortions may be restricted to physicians.”

Contrary to Hudson, I don’t see how the holdings of Casey and Mazurek are limited to facial challenges, and I don’t see why they don’t dispose of plaintiffs’ challenge.

(I also don’t understand Hudson’s account of why plaintiffs’ challenge in the case before him is not a facial challenge. He states that “Plaintiffs’ challenge … is more narrowly focused to the specific application of the Physician-Only Law to access abortion care in the Commonwealth of Virginia.” (P. 16.) But that supposedly “specific application” is the entire reach of the law.)

2. Hudson’s ruling applies to all first-trimester abortions, both medication abortions and surgical abortions.

Hudson explains that there are “two forms” of abortion that “can be utilized in the first and early second trimester of pregnancy”: aspiration abortion and dilation-and-evacuation abortion. (P. 19.) Hudson appears to credit one physician’s testimony that “some APCs [non-physician advanced practice clinicians] could capably perform first trimester abortions, but ‘I don’t believe their training would support them managing complications.’” (P. 19 (emphasis added); the internal quote is the physician’s testimony, and the broader quote is Hudson’s paraphrase of that testimony.) But if that is so, why isn’t it eminently reasonable, and consistent with Casey and Mazurek, for Virginia to require that only physicians conduct first-trimester surgical abortions? If Hudson provides an answer to this question, I don’t see it.

Hudson’s seeming disregard for the state’s interest in maximizing the safety of surgical abortion is further reflected in his statement that “[s]urgical abortions need not be performed in a sterile operating room.” (P. 19.)

3. Hudson concludes that plaintiffs are entitled to summary judgment against the physician-only law for first-trimester abortions, but that the physician-only requirement is “amply justif[ied]” for second-trimester abortions (p. 37), as “potential complications in performing second trimester abortions may arise that may warrant the judgment and skills that a physician can best provide” (p. 20). Are we really supposed to believe that there is some marked change in the safety of surgical abortion that occurs precisely at the trimester mark? And, if there is, why doesn’t Hudson bother to spell out precisely when the first trimester ends?

4. Although Hudson’s ruling is premised on the proposition that some trained medical professionals other than licensed physicians could perform first-trimester abortions (including surgical abortions), his ruling, as I understand it, would allow anyone to do so. Hudson rules that the physician-only requirement is invalid during the first trimester, but he doesn’t substitute any less restrictive requirement in its place. (Perhaps the accompanying order that he says he will issue will do so.)

Again, these are my takes on my initial review of Hudson’s ruling. I acknowledge that I have found the ruling difficult to make sense of. If my further review clarifies or corrects my initial understanding, I will amend or supplement this post.

Here’s a welcome, if very surprising, reversal:

1. Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But it says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

2. I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee.

Yesterday I was reading through an essay by Tribe and Joshua Matz that responded to a review of their jointly authored book To End a Presidency: The Power of Impeachment, published in May 2018. In that review, I ran across their statement (p. 97) that in their book they opened their analysis of the power of impeachment “by considering—and squarely rejecting—arguments that the Senate violated the Appointments Clause of the Constitution when it declined to hold confirmation hearings for Chief Judge Garland.” Wondering if Tribe had really reversed himself or whether I was somehow misreading that statement, I found confirmation in their book (well, in Amazon’s free preview pages of their book):

In the period between Scalia’s death and Trump’s electoral victory, some [sic] argued that the Senate was violating Article II, Section 2 of the Constitution by refusing to consider Garland’s nomination…. But we’re skeptical that the Senate violated the Constitution. While Article II, Section 2 requires Senate consent in order for a judicial nominee to be confirmed [sic*], it doesn’t impose an affirmative duty on the Senate to take specific actions when presented with a nominee—much less to do so within a particular time frame. [P. 76 (my underlining).]

For support, they even cite law professor Michael D. Ramsey’s fine Atlantic article on the matter. So I’m glad that Tribe’s second 180-degree turn has brought him back to the right place, where he was three decades ago.

Perhaps it’s too much to wish that Tribe and Matz had candidly acknowledged that Tribe (along with several hundred law professors) was among the “some” who, in the midst of the battle three years ago, argued the wrong position.

* The word “confirmed” should instead be “appointed.” Senate confirmation and Senate consent are synonymous. The Senate’s confirmation of the nomination is a condition that must be satisfied before the president can make the final act of appointment.

Last Friday, the White House announced its newest wave of judicial nominees, which includes Peter Phipps, President Trump’s new nominee to the U.S. Court of Appeals for the Third Circuit.

Link to full bio:  Who is Peter Phipps?

Peter Phipps is President Trump’s nominee to the U.S. Court of Appeals for the Third Circuit from Pennsylvania.

Age:  46

Current Position:  U.S. District Judge, Western District of Pennsylvania (Pittsburgh)

Education:

• B.S. and B.A., University of Dayton, summa cum laude(1995); full tuition scholarship
• J.D., Stanford Law School (1998); Managing Editor, Stanford Law & Policy Review

Judicial Clerkship: Hon. R. Guy Cole, U.S. Court of Appeals for the Sixth Circuit (2001-2002)

Professional Experience:

• 2018-Present: U.S. District Judge, Western District of Pennsylvania (Pittsburgh, PA)
• 2003-2018: Senior Trial Counsel, Senior Counsel and Trial Attorney, Civil Division (Federal Programs Branch), U.S. Department of Justice (Washington, D.C.)
• 1998-2001: Associate Attorney, Jones Day LLP (Columbus, OH)

Career Notes:

• President Donald J. Trump nominated Phipps to a seat on the U.S. District Court for the Western District of Pennsylvania in 2018 and he was confirmed by a voice vote on October 11, 2018.
• As a federal prosecutor in the Civil Division for 15 years, Phipps defended the constitutionality and administration of federal statutes, regulations, and programs against challenges brought in federal court.  He also drafted briefs in cases before the U.S. Supreme Court.
• One of Phipps’s most significant litigation matters in this capacity includes defending the U.S Department of Housing and Urban Development against a claim of racial discrimination in a major class action Thompson v. Dept. of Housing and Urban Development (District of Maryland).

• While in private practice at Jones Day, Phipps specialized in corporate civil litigation in both federal and state court.
• Phipps has served as an adjunct professor at Duquesne University School of Law since 2014.

Honors and Awards:

• Phipps is a recipient of the Attorney General’s Distinguished Service Award (2005). He also received a Special Commendation from the Civil Division of the U.S. Department of Justice in 2006, 2010, and 2012.

2016—Anticipating the imminent prospect of a liberal majority on the Supreme Court, Harvard law professor Mark Tushnet encourages the Left to abandon what he somehow imagines to have been an era of “defensive-crouch liberalism.” Among his modest and genial recommendations:

The Left “should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”

Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

“Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet doesn’t use asterisks.)

1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”.

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)

2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

Yesterday, the Senate confirmed President Trump’s 100th nominee since Inauguration Day (as well as his 101st and 102nd). This is a tremendous accomplishment by the President, Senate majority leader Mitch McConnell, Senate Judiciary Committee chairman Lindsey Graham, and his predecessor, Senator Chuck Grassley.

After the confirmations of five district-court nominees this week, next week Leader McConnell intends to turn back to the task of confirming court of appeals nominees. Yesterday he filed for cloture to end debate on the nominations of Joseph Bianco and Michael Park, President Trump’s pending nominees to the U.S. Court of Appeals for the Second Circuit.  If confirmed, Bianco and Park will be the 38th and 39th court-of-appeals judges confirmed since Inauguration Day.

Here is a full update on the status of President Trump’s federal judicial nominations: 

Current and known future vacancies:  159

Courts of Appeals:  10

District/Specialty Courts*: 149

Pending nominees for current and known future vacancies:  59

Courts of Appeals: 5

District/Specialty Courts*:  54

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Court of Appeals Nominees Awaiting Senate Floor Votes

 Nominees Awaiting Floor Votes:38

Courts of Appeals: 4

District/Specialty Courts: 34

Days Pending

• # of pending nominees originally nominated > 600 days ago: 1
• # of pending nominees originally nominated > 500 days ago: 3
• # of pending nominees originally nominated > 400 days ago: 5
• # of pending nominees originally nominated > 300 days ago: 21

Nominees Confirmed by the Senate during the 116th Congress: 17

Supreme Court: 0

Courts of Appeals: 7

District/Specialty Courts: 10

Nominees Confirmed by the Senate since Inauguration Day: 102

Supreme Court: 2

Courts of Appeals: 37

District/Specialty Courts: 63

1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority.

In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.”

Yesterday I wrote about the Kansas Supreme Court’s lawless ruling in Hodes & Nauser v. Schmidt, which for the first time in history located a right to abortion in the Kansas Constitution.  Today, I examine the role that commission-based methods of nominating state judges — a.k.a the Missouri Plan — have had in causing the Kansas Supreme Court and other state supreme courts to seemingly abandon their commitment to the rule of law.

As I have discussed in this space many times over the last decade, Kansas is one of approximately a dozen states that uses a version of the Missouri Plan to nominate state supreme-court justices.  The invention of progressive era activists, today the Missouri Plan (or so-called “merit system,” for its purported focus on nominee qualifications) is the favored method of selecting judges among liberal legal activists, because it helps the far-left leaning state-bar associations to capture a state’s legal infrastructure by giving them the dominant role in the selection of judges.

First adopted in Missouri in 1940, the Missouri Plan eventually made its way to Kansas in 1958. The Kansas Supreme Court has a total of seven justices. When a vacancy arises on the court, the Kansas Supreme Court Nominating Commission submits a list of three nominees to the governor, and the governor is then compelled to pick one of those nominees. At the end of a justice’s term, he or she is subject to a statewide retention election. If retained, the justice continues to another term. (Note that judges in Missouri Plan states are retained 99 percent of the time in such retention elections. This is not surprising given that voters are asked to vote yes or no on whether to retain incumbent candidates who are unopposed.)

As prescribed by the Kansas Constitution, the Kansas Supreme Court Nominating Commission is comprised of nine members, four of whom are elected by the state bar (one each from Kansas’s four congressional districts). Four non-lawyer members are appointed to the commission on a staggered four-year basis by the then-governor (again, one each from the four congressional districts).  The ninth member — the Chairman — is elected by members of the Kansas Bar Association. Thus, the majority of the nine seats are both held by lawyers and chosen by the state bar, and the staggering of the governor-appointed members means that the governor’s influence over the process is even further diluted.

It is no accident that judicial selection in Missouri Plan states is shielded from public accountability. The progressive-era architects of the Missouri Plan believed that all aspects of American life should be run by experts. Their vision was to remove the process of judicial selection from the purview of the electorate and instead place it in the hands of legal professionals. It’s no surprise that the bar associations were the leading advocates for the adoption of the Missouri Plan 80 years ago and remain its biggest cheerleaders today.

Missouri Plan boosters argue that commission-based judicial-selection systems result in a more independent judiciary. While that argument might sound appealing to anyone who dislikes the federal-selection process, or judicial elections, the data prove otherwise. In recent years, Professor Brian Fitzpatrick of Vanderbilt University Law School has done extensive empirical research studying the ideological impact of various methods of judicial selection across the country. A 2016 study conducted by Fitzpatrick found that state appellate judges in Missouri Plan/merit-selection states are demonstrably more left-leaning than the general electorate at large in those same states. According to Fitzpatrick, “judges in merit selection states were on average 16% more Democrat than the public in those states as measured by their federal house [Congressional] votes and 14.6% more Democrat than the public as measured by their state house votes.” In Kansas, the leftward ideological skew is even larger than the national average: Fitzpatrick found that Kansas appellate judges are 17.9 percent more Democrat than the public as measured by their Congressional votes and 16.8 percent more Democrat as measured by their state-house votes.

Professor Fitzpatrick’s research findings reflect the phenomenon we are seeing on the ground.  Supreme courts in states such as Kansas and Missouri (whose judicial activism I also recently wrote about) are beginning to bear an uncanny resemblance to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit — not exactly what one would expect in the Midwest. But is anyone surprised that a selection process dominated by liberal bar associations has led to disproportionately liberal courts?

Kansas is long overdue for judicial-selection reform. The state has already eliminated the Missouri Plan for its selection of court of appeals judges. Thanks to a 2013 bill passed by the legislature and signed into law by Governor Sam Brownback, Kansas’s court of appeals judges are now selected by the governor with the approval of the state senate, similar to how federal judges are appointed. But changing the method of selection for supreme-court justices will require an amendment to the Kansas Constitution.

The appointment method designed by the Founders and used for over two centuries to select federal judges has endured the test of time. But partisan judicial elections have also worked very well for many states, and, in fact, some of the most conservative judges in the country have come from states that elect their judges. Both of these alternative selection methods have proven to result in less ideological skew according to Professor Fitzpatrick’s research. And critically, both methods would finally provide a means of electoral accountability that is currently nonexistent in Missouri Plan states: The Kansas Bar Association is accountable to no one but its own members.

Without the judicial-selection reform that Kansas and other states desperately need, I fear that we can expect to see many more state supreme-court opinions that are completely untethered from the rule of law.