Bench Memos

2010—In American Atheists, Inc., v. Duncan, a Tenth Circuit panel holds that the state of Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths.

In dissent from his court’s denial of en banc review, Judge Neil Gorsuch will decry that the Tenth Circuit applies its dubious “reasonable observer” test by using an observer who “continues to be biased, replete with foibles, and prone to mistake.”

In a lengthy dissent from the Supreme Court’s failure to grant certioriari, Justice Thomas will lament that the Court “rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”

Last night, Rachel Maddow launched a lengthy smear of Second Circuit nominee Steven Menashi based on a grossly distorted summary of a law-review article he wrote in 2010, in which he stated that “ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.” She accused Menashi of nothing less than making “a highbrow argument for racial purity in the nation-state.”

Ed Whelan effectively debunks the notion that the article did any such thing. I will make a few additional points.

Maddow completely ignores the context of Menashi’s article, which was a defense of Israel’s legitimacy as a Jewish homeland. In fact, her extended discussion of the article does not once mention Israel or the persecution of Jews that played a central role in the establishment of Israel. To add insult to injury, she even began her segment by defining the “ethnonationalism” Menashi wrote about with reference to “white nationalism, which is the new branding that domestic terrorists are using in this country for white supremacy.”

Not only is this a gross distortion of an article that mentioned Israel well over 100 times and barely mentioned the United States. It rises to the level of a calumny — and a particularly despicable one.

It might not be surprising that the Republican Jewish Coalition is among the numerous critics who have called out Maddow for her defamation. But the reasons for doing so transcend politics. Menashi is himself of Middle Eastern ancestry, with Jewish grandparents who made their way from Iraq to Iran before finding their home in Israel. His grandmother survived a violent pogrom in Baghdad, and his in-laws are Soviet Jewish refugees who emigrated to the United States. Of course, you would have heard none of this background from Maddow, who baselessly claimed that Menashi’s definition of “national community” is “everybody having the same ethnicity.”

A question remains for Maddow: Is her commentary the product of intellectual dishonesty alone, or does she sincerely believe Israel deserves to be associated with the white supremacy of domestic terrorists?

In a 2010 law-review article titled “Ethnonationalism and Liberal Democracy,” Second Circuit nominee Steven Menashi argues that “ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.”

Menashi’s specific purpose in the article is to refute claims that “Israel’s particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests.” In fact, argues Menashi, “[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis.” Further, the “idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of ‘self-determination of peoples’ espoused at the foundation of the League of Nations and the United Nations.” Surveying the laws of European nations, he further explains that Israel’s Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, “[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states.”

In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi’s argument and tries to twist it into “a high-brow argument for racial purity.” (Video at 9:00-9:36.) She falsely claims that Menashi argues “how definitely democracy can’t work unless the country is defined by a unifying race.” (Video at 6:57-7:10.)

But Menashi’s argument about national identity is clearly not about “racial purity” or a “unifying race.” Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for “racial purity.” Menashi further states that it “is not even clear … that Israel’s national identity can even be described as ‘ethnic’” (in a narrow sense of that concept), as Israeli Jews come from “Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen.”

What actually fosters “ethnonationalism”—what makes a population regard itself as a nation, what gives rise to national self-consciousness—is a complicated matter that is far beyond Menashi’s inquiry. He quotes at length from an International Commission of Jurists that explored whether the people of what is now Bangladesh constituted a distinct “people.” That commission’s discussion, which Menashi clearly finds intelligent, cites multiple elements—historical, racial or ethnic, cultural or linguistic, religious or ideological, geographical or territorial, economic—that might bear on whether a “particular group constitutes a people,” but it also states that none of those elements is “either essential or sufficiently conclusive.”

What matters for national identity, Menashi emphasizes—quoting John Stuart Mill—is that a people are “united among themselves by common sympathies which do not exist between them and any others, which make them cooperate with each other more willingly than with other people, [and] desire to be under the same government.” That—and not race—is clearly what Menashi means by his broader concept of ethnic, or “ethnocultural” or ethnonational, identification.

Israeli Jews and Palestinians clearly do not share an ethnonational identity. The United States is beyond the scope of, and barely mentioned in, Menashi’s article, but it’s plain from his analysis that all people, irrespective of race or of narrower concepts of ethnicity, who see themselves as part of the American national community do share an ethnonational identity.

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

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

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

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

2000—The New Jersey supreme court rules by a vote of 4-2 (in Planned Parenthood v. Farmer) that a state statute providing for parental notification for abortion violates the state constitution because it treats minors seeking abortion differently from minors who decide to carry their child to term.

I’m reliably informed that Eleventh Circuit judge Gerald Tjoflat, who has served on the federal bench since 1970, has declared his decision to take senior status, effective on the confirmation of his successor. Tjoflat’s decision gives President Trump a seat to fill in Florida. That will be the president’s fourth appointment to the Eleventh Circuit.

Tjoflat, who turns 90 in December, is the longest-serving federal judge in active status. President Nixon appointed him to the district court in 1970, and President Ford elevated him to the appellate court in 1975. (Ford appointed Tjoflat to the Fifth Circuit, but upon the Fifth Circuit’s division into two circuits in 1981, Tjoflat began his service on the Eleventh Circuit.)

As I have made clear before, I think that it’s entirely reasonable for the American Bar Association’s judicial-evaluations committee to want nominees for federal district judgeships to have substantial trial experience. But it’s also important for the ABA committee to be consistent in its treatment of nominees of different presidents. And on that measure the ABA committee’s recent “Not Qualified” rating of federal district nominee Justin R. Walker seems difficult to defend.

As the ABA committee explains in its letter to the Senate Judiciary Committee, its negative rating of Walker rests entirely on its conclusion that Walker “does not presently have the requisite trial or litigation experience or its equivalent.” Specifically, the committee objects that Walker “has never tried a case as lead or co-counsel, whether civil or criminal.” At the same time, the committee states that it “does not have any questions about Mr. Walker’s temperament or integrity” and, in light of his other impressive credentials, affirms its belief that he “has great potential to serve as a federal judge.”

Eight years ago, when President Obama nominated Alison J. Nathan to a federal district judgeship in the Southern District of New York, the ABA committee gave Nathan an overall rating of “Qualified.” (A minority of the committee rated her “Not Qualified.”) But as I pointed out at the time, it had to disregard its stated criteria in order to give Nathan a favorable rating. Nathan did not have the “substantial courtroom and trial experience” that the ABA committee says is so “important” for district-court nominees. Of the ten “most significant litigated matters” that she identified in her Senate questionnaire response, there was no sign that any of them involved her actually appearing in a trial court to examine witnesses or even to argue a motion, much less “tr[ying] a case as lead or co-counsel”.

To be sure, the ABA committee says that “a nominee’s limited experience may be offset by the breadth and depth of the nominee’s experience over the course of his or her career.” But it’s difficult to see any meaningful difference on this score that would cut in favor of Nathan:

Nathan had been a member of a state bar for eight years before her nomination. Walker has been a member of the Kentucky bar for some ten years, since 2009.

Nathan was a law clerk for Ninth Circuit judge Betty Fletcher and for Justice Stevens. Walker was a law clerk for then-D.C. Circuit judge Brett Kavanaugh and for Justice Kennedy.

Nathan had her undergraduate and law-school degrees from Cornell. Walker has his from Duke and Harvard law school.

Nathan worked as an associate at a law firm for four years, taught at law schools for three years, worked in the White House counsel’s office for 18 months or so, and was special counsel to the New York solicitor general for nine months. Walker worked as an associate at a law firm for two years, had a solo practice for six years, has taught at a law school (where he is now tenured) for four years, and is now also of counsel to a law firm.

2015—In State v. Santiago, the Connecticut supreme court rules by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (Under some quirk of Connecticut procedure, the “official release” date of the ruling is August 25.)

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. It thus effectively expands the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment.

The court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerful dissent make clear.

2010—In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal.

2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”

What exactly Barkett means by “mental age” is confused. At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.” But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.” Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.”

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18. Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child. Does This Day perennial Barkett “understand why the rules exist”? Does she “appreciate the consequences of breaking them”—through her lawless judicial activism? Does she “consistently make judgments based” on those understandings? From the evidence that pervades This Day entries, the answers are no, no, and no.

1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles. Some 2½ years later, in its own rampage (see This Day for Feb. 18, 1972), the California supreme court voids the death sentences that had been imposed on Manson and four other Family members.

2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.”

Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.” Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing). And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals.”

Days later, under harsh criticism from its usual allies, NARAL pulls the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report against presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.

President Donald Trump is making his mark on the federal judiciary. He’s appointed 17 percent of the life-tenured federal judiciary, above the average of 15 percent for the previous five presidents at this point. Trump’s 24 percent share of the U.S. Court of Appeals is way ahead of the 13.6 percent average.

This is progress, but the process will remain a slog for the foreseeable future.

The Heritage Foundation’s Judicial Appointment Tracker shows, for example, that the Senate has been forced to take a separate vote to invoke cloture, or end debate, 97 times since Trump took office. That’s 14 times as many as in the same period during the previous nine presidential administrations — wait for it — combined! Read that last sentence again if it hasn’t yet sunk in.

Only slightly less disconcerting, yet just as true, is Senate Democrats’ campaign of opposition to Trump’s judicial nominees. It’s tempting to think that winning matters, not the margin of victory. But this signals a radical transformation not only in how the confirmation process works day-to-day, but in the Senate’s role in the broader appointment process.

The Constitution, after all, gives the power to appoint judges to the president, not to the Senate. In the past, reflecting its role as a check on that power, the Senate focused on individual nominees’ qualifications, singling out the few “unfit characters,” as Alexander Hamilton put it.

Not surprisingly, therefore, from President George Washington through President Barack Obama, only six percent of nominees to life-tenured federal courts met with any opposition at all — not even a single vote — when confirmed.

Oh, what a difference Donald Trump makes. Since he took office, that figure has soared from six percent to over 70 percent.

The 43 Democrats serving since January 2017 have, on average, voted against 49 percent of Trump’s nominees. If this were ordinary partisanship, you’d expect to see similar levels of opposition by Republicans against the nominees of Democratic presidents. Yet during the same period, the average Republican senator voted against only 10.6 percent of Obama’s judicial nominees. No Democrat today has opposed fewer than 21 percent of Trump’s nominees; no Republican then opposed more than 14.4 percent of Obama nominees.

In fact, Democrats themselves opposed an average of just 3.4 percent of judicial nominees during this period under President George W. Bush. That was consistent with the historical “regular order” of the confirmation process.

Today we are witnessing something radically different. Senate Democrats are ignoring nominees’ qualifications and opposing them simply because Trump nominated them. The confirmation process is just another front in their war against the president. This is what “winning at all cost” really looks like.

2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the unanimous Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.