Bench Memos

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

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

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

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

In February 2004, President Bush will recess-appoint Pryor to the seat. And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush will appoint him to a lifetime seat. In 2020, Pryor will become chief judge of the Eleventh Circuit.

2017—In a unanimous ruling in Kernan v. Cuero, the Supreme Court summarily reverses a ruling by Ninth Circuit judge Kim McLane Wardlaw that granted habeas relief to a state prisoner. Employing understatement, the Court observes, “There are several problems with the Ninth Circuit’s reasoning below.”

Summary reversals—that is, reversals without the Court’s seeing any need for briefing on the merits or oral argument—generally reflect very poorly on the judge who authored the opinion below. But Wardlaw seems to be competing for a Lifetime Summary Reversal Award, as this is at least the fourth time she has had a ruling summarily reversed by the Court.

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

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

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

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

Given all of the anniversaries of bad judicial rulings and the like that I regularly highlight, I kindly ask your indulgence as I celebrate a joyous anniversary of a very different sort: Today marks the 25th anniversary of my blessed marriage to my wonderful wife. (Yes, her half of the achievement has been far more strenuous than my half.)

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

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

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

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

Before being appointed by President Trump to serve on the U.S. Court of Appeals for the Fifth Circuit, Andrew Oldham had a distinguished career as an appellate litigator. A former law clerk to Justice Alito, Oldham was an attorney-adviser in the Justice Department’s Office of Legal Counsel before working in private practice at Kellogg Hansen. Oldham went on to serve as Texas’s Deputy Solicitor General and General Counsel to Governor Greg Abbott.​

Since becoming a judge, Oldham has demonstrated a staunch commitment to protecting the Bill of Rights.  Consider his recent concurrence in Word of Life Church of El Paso v. State Farm Lloyds.  In that case, a church had an insurance policy that insured the church’s leaders against lawsuits “directly related” to the operations of the church. One of the issues in the case concerned the First Amendment’s religious freedom protections, and whether a lower court can purport to decide what types of activities are “typical” for a religious organization.

A pastor of the church was sued by El Paso’s mayor after the pastor led a campaign to promote “traditional family values by making health benefits available only to city employees and their legal spouse and dependent children.”

The insurance company refused to cover the mayor’s lawsuit against the pastor and the church.  The church sued, but a lower court found for the company, holding that the pastor’s actions were not directly related to the church’s operations. The lower court reasoned that “political campaigning” is not “an activity typical of the operations of a religious organization.”

The Fifth Circuit reversed. As Judge Oldham noted, the pastor swore in a signed affidavit that his actions were in furtherance of a ministry of the Church. “[I]t’s not the role of a federal judge,” Oldham explained, “to tell a church whether its activities are ‘typical.’” A court’s “job is to decide cases.”

Judge Oldham added that because the insurance policy covered operations relating to the Word of Life Church, and not a “typical” church, the lower court was wrong to impose an additional burden on the church by making its insurance policy coverage turn on “which of its activities a secular court will consider religious.” Quoting Justice Thomas’s concurring opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Judge Oldham explained that because judges “may or may ‘not understand [a church’s] religious tenets and sense of mission,’” they must be particularly mindful of the religious freedoms guaranteed by the First Amendment.

Judge Oldham’s short but powerful concurring opinion exemplifies how federal judges ought to operate in our constitutional system.  A commitment to defending liberty and the Bill of Rights often means, in the context of the judiciary, recognizing that a judge’s role is limited to interpreting the law and deciding the cases that come before him. When judges try to go beyond that role, individual rights and faith in the judiciary itself suffer.

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1979—President Carter appoints Harry Pregerson to the Ninth Circuit, where Pregerson will remain in active service for the next 36 years.

The newly created seat to which Carter appoints Pregerson is one of ten additional seats on the Ninth Circuit created by a 1978 judicial-expansion act. That act increased the seats on the Ninth Circuit from 13 to 23—a 77% increase. Carter will fill all of the new seats (as well as some of the old ones). By appointing so many judges like Pregerson, Carter will turn the Ninth Circuit into a notorious bastion of liberal judicial activism.

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

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

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

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

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

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

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

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

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

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

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

2013—Through misuse of procedural rules, federal district judge Shira Scheindlin managed over the years to (in the words of a New York Times article) “exercise near exclusive jurisdiction in deciding whether the [New York City] Police Department’s [stop-and-frisk] policies adhere to Fourth Amendment restrictions.”

But Scheindlin’s shenanigans (on this matter, at least) finally come to an end, as a Second Circuit panel determines (in Ligon v. City of New York) that her actions and her “public statements purporting to respond publicly to criticism” warrant removing her from any further role in such cases. Among her objectionable actions: “suggesting that the plaintiffs bring a lawsuit, outlining the basis for the suit, intimating her view of its merit, stating how she would rule on the plaintiffs’ document request in that suit, and telling the plaintiffs that she would take it as a related case.”

Before being picked by President Trump to serve as a judge on the U.S. Court of Appeals for the Fourth Circuit, Julius (Jay) Richardson was known as one of the most talented prosecutors in the country. After clerking for Chief Justice Rehnquist and spending three years as a litigator at a top law firm in Washington, D.C., Richardson became an assistant United States attorney in his home state of South Carolina. There, he championed efforts to tackle public corruption. He also led the team that sought and won the death penalty in the trial of Dylann Roof, a white supremacist who killed nine African Americans during a Bible study in Charleston.

Since becoming a judge, Richardson has promoted the rule of law and the limited role of courts within our constitutional system. Take for instance Mayor and City Council of Baltimore v. Azar, decided on September 3 by the full Fourth Circuit. The case dealt with Title X of the Public Health Service Act, which allows the federal government to provide grant funding for family planning programs.

In 2019, the Trump Administration issued a rule requiring any programs receiving Title X funding to be physically and financially separate from abortion providers such as Planned Parenthood. The rule also prohibited funding recipients from referring clients for abortions.

In a bizarre opinion, the majority held that the rule was arbitrary, capricious, and beyond the scope of the executive branch’s authority. Judge Richardson dissented and was joined by five of his colleagues, including fellow Trump appointees A. Marvin Quattlebaum and Allison Jones Rushing. He noted that the administration’s rule “substantially return[ed] the Title X regulations to the version” in force in 1988 and that the Supreme Court upheld the 1988 rule as permissible in Rust v. Sullivan (1991). In reaching the opposite conclusion about the 2019 rule, Judge Richardson explained, “the majority not only thumbs its nose at the Supreme Court but substitutes its own judgment for that of an executive agency accountable to the elected President.”

It is a bedrock principle of law that a court may not impose its own preferred policy outcome on a federal agency. Judge Richardson emphasized that the administration “spoke with the force of law” when it issued the rule, because Congress explicitly authorized the executive branch to decide how and under what conditions to grant Title X funds. Additionally, Section 1008 of Title X clearly states that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” The 2019 rule was reasonably designed to ensure that no federal funds would be used by abortion providers, as Congress requires. Indeed, the Supreme Court confirmed as much by holding that a virtually identical version of the rule is permissible. The 2019 rule should therefore have been upheld.

In the span of two years on the bench, Judge Richardson has already gained a reputation for being a thoughtful and principled judge. By emphasizing judicial restraint and a faithful adherence to the law, he serves as a great role model for new judges across the country.

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2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statement, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent.

2019—At a Georgetown law school event with Justice Ruth Bader Ginsburg, Bill Clinton discloses that he discussed Roe v. Wade with Ginsburg before nominating her to the Supreme Court in 1993, that their discussion was important to “why I thought I should appoint her,” and that Ginsburg “knew this perfectly well.”

Clinton’s disclosure is in serious tension with Ginsburg’s sworn testimony to the Senate in 1993 that no one involved in the selection process “discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.” (More here.)

I see that a redoubtable trio of law professors—Akhil Amar, Vikram Amar, and Neal Katyal—has published a New York Times op-ed contending that the position that Justice Kavanaugh has expressed (point 1 here) on a state legislature’s authority over voting in presidential elections is “preposterous.” I’d respectfully suggest that the law professors overlook some important points and badly overstate others.

First, though, I should highlight that Kavanaugh is not the only justice to have recently opined that the federal Constitution bars state judges or other state actors from rewriting the state legislature’s rules governing federal elections. In his concurring opinion in that same Wisconsin case, Justice Gorsuch wrote: “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1.” And just yesterday evening (after the NYT op-ed had already appeared), justices in two cases made the same argument. With respect to an order concerning Pennsylvania, Justice Alito, joined by Justices Thomas and Gorsuch, stated:

The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office. See Art. I, §4, cl. 1; Art. II, §1, cl. 2; Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76 (2000) (per curiam)….

The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election. See Art. I, §4, cl. 1; Art. II, §1, cl. 2.

And in a case from North Carolina, Justice Gorsuch, joined by Justice Alito, made this statement in the course of dissenting from the Court’s denial of injunctive relief:

The parties before us all acknowledge that, under the Federal Constitution, only the state “Legislature” and “Congress” may prescribe “[t]he Times, Places and Manner of holding Elections.” Art. I, §4, cl. 1. Everyone agrees, too, that the North Carolina Constitution expressly vests all legislative power in the General Assembly, not the Board or anyone else. N. C. Const., Art. II, §1; cf. N. C. Const., Art. I, §6. So we need not go rifling through state law to understand the Board’s permissible role in (re)writing election laws. All we need to know about its authority to override state election laws is plain from the Federal and State Constitutions.

Let’s now turn to the three professors’ op-ed:

1. The authors assert that “[f]ederal courts have no business interfering in state-law matters.” But setting election rules for federal elections is not a mere state-law matter. As the unanimous Supreme Court stated in Bush v. Palm Beach County Canvassing Bd. (2000) with respect to setting the rules for presidential elections, the state legislature in doing so “is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution.” (Emphasis added.) That constitutional provision, the Court indicated (in quoting an 1892 precedent), “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.”

2. Curiously, the authors make no mention of the unanimous opinion in Bush v. Palm Beach County, but instead try to discredit Chief Justice Rehnquist’s concurring opinion in Bush v. Gore (2000), which relied directly on Bush v. Palm Beach County.

They claim that “this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona [State] Legislature v. Arizona Independent Redistricting Commission.” But Justice Ginsburg’s majority opinion for five justices in that case didn’t even mention Bush v. Gore (or Bush v. Palm Beach County), much less “squarely reject” it. Further, that case’s status as a “landmark” is far from clear. In his vociferous dissent for four justices, Chief Justice Roberts stated that the majority’s position that “the Legislature” in Article I, section 4, means “the people” “has no basis in the text, structure, or history of the Constitution, and … contradicts precedents from both Congress and this Court.” Rather:

The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process.

In his own dissent (on grounds of lack of jurisdiction), Justice Scalia added:

[T]he majority’s resolution of the merits question (“legislature” means “the people”) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.

3. The authors contend that Chief Justice Roberts and the other dissenters in the Arizona State Legislature “squarely relied” on the “key holding” of that case in their ruling last year in Rucho v. Common Cause. But the Chief Justice cites Arizona State Legislature as authority only once, for the proposition that excessively partisan gerrymandering is “incompatible with democratic principles.” (He also twice refers to the district court’s citation of the case.) That proposition has nothing to do with the “key holding” of Arizona State Legislature.

In short, there is no reason to think that the Chief Justice believes that Arizona State Legislature was correctly decided or that its holding should be extended.

Thomas Kirsch is President Trump’s nominee to fill Justice Amy Coney Barrett’s seat on the U.S. Court of Appeals for the Seventh Circuit. A lifelong Indiana resident, Kirsch is currently the U.S. attorney for the Northern District of Indiana, where he serves as his district’s chief federal law-enforcement officer.

After graduating with highest distinction from Indiana University, Kirsch attended Harvard Law School. He then returned to Indiana, where he served as a law clerk to Judge John Daniel Tinder on the U.S. District Court for the Southern District of Indiana.
Kirsch has had a distinguished legal career, serving in government and working in private practice. From 2001–2008, he worked as an assistant U.S. attorney in Indiana. As an AUSA, Kirsch focused on white-collar investigations and prosecutions, including the prosecution of numerous elected and appointed public officials.

During that time, he also spent a year serving as counsel to the assistant attorney general at the Department of Justice’s Office of Legal Policy. While there, he assisted in developing legislative and policy proposals in corporate crime, violent crime, and counterterrorism. Before becoming the U.S. attorney for the Northern District, Kirsch was a partner at the law firm Winston & Strawn, where he litigated complex commercial and criminal matters in trial and appellate courts across the country.

Over the course of his career, Kirsch has tackled tax and health-care fraud, conspiracy, extortion, money laundering, racketeering, and obstruction of justice. He successfully prosecuted gangs and drug dealers. And, shortly after being named U.S. attorney, he announced the arrest of a man accused of sending a bomb that exploded in a post office.

For his work, Kirsch has received numerous awards, including the Department of Justice Director’s Award for Superior Performance and awards from The American Lawyer, The National Law Journal, Law360, and Benchmark Litigation. Colleagues have said that Kirsch “has a great legal mind and is a fearless litigator who has shown a willingness to take on powerful interests,” and that his “work ethic is second to none.”

“Democrats Ask ACB To Recuse Herself From Any Cases Involving The Constitution” read a headline Monday in the satirical Babylon Bee. That is not much of a stretch from the position Democrats actually took regarding now-Justice Amy Coney Barrett during the nomination process. They called for her recusal in cases that may come to the Court regarding the upcoming election, and they called for her recusal in the upcoming case regarding Obamacare, California v. Texas. A Pennsylvania county’s board of elections has now made a formal recusal motion in its litigation against the state’s Republican Party regarding mail-in ballot deadlines. If those recusal calls were legitimate, why not just demand she take a pass on any case deemed important?

Glib arguments for recusal trivialize a judge’s affirmative duty to decide cases. Canon 3A(2) of the Code of Conduct asserts that “a judge should hear and decide matters assigned, unless disqualified.” Whatever the recusal threshold is for lower court judges, Justice Stephen Breyer has noted that the bar should be even higher on the Supreme Court. For a court of appeals judge, a “borderline” call may counsel sitting out a case since “there are a lot of other judges who can step in.” But on the Supreme Court, “If you take yourself out of a case, it could affect the result. And therefore, you have to be careful on the one hand to take yourself out of the case if there is an ethical conflict of some kind, and not to take yourself out of the case if there isn’t, because you have to participate.”

To review the governing standard regarding disqualification, 28 U.S.C. § 455 requires recusal in any proceeding in which a federal judge’s “impartiality might reasonably be questioned.” Other parts of the statute add specific instances in which a judge should recuse, such as “personal bias or prejudice concerning a party” or participating in a particular case in prior private or government employment.

For an example of a serious question being raised by one of those specific circumstances, recall that Elena Kagan resisted calls for recusal and participated in the two major cases that considered the constitutionality of the Affordable Care Act, National Federation of Independent Business v. Sebelius (2012) and King v. Burwell (2015). This was despite having served as Barack Obama’s solicitor general while her office was crafting a defense of the administration’s signature initiative in anticipation of litigation. Kagan denied substantive involvement with Obamacare during her nomination hearings while admitting her attendance at “at least one meeting where the existence of the litigation was briefly mentioned.” Internal emails raised further questions as it became clear she wanted her office involved, even if she assigned a deputy to the issue.

Of course, Democrats now calling for Barrett’s recusal had no problem with Kagan participating in those cases. What is most relevant here is that there are no comparable facts about Barrett’s prior work that raise anything approaching a serious question of recusal. Scholarly writings are certainly not in the same category as prior casework. Robert Bork’s published work made him a leading authority on antitrust law, and as aggressively as his opponents attacked him (including on antitrust issues), they could not argue with a straight face that he should recuse himself in antitrust cases.

Similarly, Breyer was an authority on administrative law before he joined the Court, and that did not trigger calls for recusal in administrative-law cases. (During his nomination, the recusal issue did come up, but it stemmed from the question of possible financial conflicts of interest arising from his membership in a Lloyd’s of London insurance syndicate.) Those who tried to inflate a single sentence Barrett wrote in a book review — one that did not even address the ultimate issue in California v. Texas — into a call for recusal in that case should be embarrassed.

In the absence of any issue whatsoever concerning Barrett’s financial holdings or prior work, the argument for disqualification rests entirely on whether her “impartiality might reasonably be questioned.” In any upcoming election cases, whether from Pennsylvania or elsewhere, the pro-recusal side is unable to cite a single word she has said casting doubt upon her impartiality. The argument simply assumes she would align herself with her appointing president.

Of course, it is stating the obvious to say that every president would like to win elections and (like Obama with Obamacare) any litigation in which his administration takes a position in court. But to try to turn that into an imputation against a justice’s objectivity is to disregard the overwhelming weight of history.

Justices are routinely expected to be involved in cases of importance to their appointing presidents and have often voted against their positions. In Korematsu v. United States (1944), when the Court upheld Franklin D. Roosevelt’s exclusion order that led to the internment of Japanese Americans during World War II, Roosevelt appointees Frank Murphy and Robert Jackson dissented. In Youngstown Sheet & Tube Co. v. Sawyer (1952), two of the votes against Harry S. Truman’s seizure of steel mills during the Korean War came from justices he appointed, Harold Burton and Tom Clark.

The same is true of cases that even more directly decide the future of the appointing president. In United States v. Nixon (1974), Richard Nixon’s claim of executive privilege was rejected in a unanimous decision joined by Nixon appointees Warren Burger, Harry Blackmun, and Lewis Powell, despite its foreseeable impact in bringing that administration to a premature end.

In Clinton v. Jones (1997), another unanimous judgment, joined by Bill Clinton appointees Ruth Bader Ginsburg and Breyer, rejected the president’s claim of immunity from Paula Jones’ sexual harassment lawsuit. The following year, Ginsburg and Breyer dissented from the denial of certiorari in Office of the President v. Office of Independent Counsel. Senator Sheldon Whitehouse recently wrote an op-ed for the Washington Post entitled, “A Justice Barrett must recuse herself from deciding the future of the president who picked her.” No, not if we allow the most basic understanding of American history to guide us.

In sum, both of Clinton’s nominees participated in numerous cases in which President Clinton was a named party (at least 79 for Ginsburg and 74 for Breyer), and both of Obama’s nominees participated in numerous cases in which President Obama was a named party (at least 102 for Sonia Sotomayor and 91 for Kagan).

In fact, even if the context were narrowed to recent election litigation when the appointing president is running for reelection, there is no basis for recusal. In 2012, the year Obama was running for reelection, both of his appointees, Sotomayor and Kagan, considered stay applications in several cases appearing on the docket that dealt with a range of election issues:

• Husted v. Obama for America (early in-person voting limits)
• Lair v. Bullock (campaign contributions)
• Voting for America v. Andrade (voter registration)
• Libertarian Party v. Johnson (ballot access)
• Arizona v. Abeytia (proof of citizenship)

And of course, Democrats in Congress did not protest the participation of Democratic-appointed justices in such cases. That makes them look even more foolish when they persist in making frivolous arguments about recusal when the justice is not to their liking.

It turns out that amidst all of the sloppy claims of Justice Kavanaugh’s supposed errors in his concurring opinion in the Court’s order on Monday regarding Wisconsin’s deadline for receipt of absentee ballots, Kavanaugh did make one error that even his critics acknowledge was immaterial (e.g., “doesn’t really change the substance of Kavanaugh’s ruling”) in the underlined portion of this sentence:

Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots.

Back in July, the Vermont legislature enacted a law under which all voters would be mailed ballots that they could mail in or drop off. But it’s the italicized portion of the sentence that bears on what was at issue in the Wisconsin case. Having been notified of his error, Kavanaugh has corrected it by changing “election rules” to “election-deadline rules.”

It would be good if those rushing to dunk on Kavanaugh would be so ready to acknowledge and correct the many errors they have made in mistakenly alleging other errors by Kavanaugh.

To put Kavanaugh’s trivial error in perspective: Back in 2008, in ruling in Kennedy v. Louisiana that the death penalty for the crime of child rape violates the Eighth Amendment, a five-justice majority consisting of Justice Kennedy and the four liberal justices (including Ginsburg and Breyer) purported to discern a supposed “national consensus against capital punishment for the crime of child rape.” But the five justices all overlooked a federal law enacted in 2006 that authorized the death penalty for child rape in military courts. This error occurred in a case that was fully argued and briefed and in which the justices had ample time to draft their opinion.

Various folks on the Left are taking whacks at Justice Kavanaugh for what they claim are “sloppy” errors in his concurring opinion in the Court’s order on Monday regarding Wisconsin’s deadline for receipt of absentee ballots. But it’s their own criticisms that are sloppy.

Let’s take a look at law professor Richard Hasen’s complaints in this Washington Post op-ed:

1. Hasen takes issue with Kavanaugh’s “controversial theory” that (in Hasen’s paraphrase) “state legislatures have almost absolute power to set the manner for conducting presidential and congressional elections (subject to congressional override for congressional elections).” In so doing, he faults Kavanaugh for citing Bush v. Palm Beach County Canvassing Board (2000) “as standing for the proposition that state legislatures have this power—negating the power of state courts to expand voting rights under state constitutional provisions that protect the right to vote.” That case, he argues, “unanimously raised but did not resolve that question.” Hasen continues: “Kavanaugh further embraced this theory as advanced again by then-Chief Justice William H. Rehnquist in Bush v. Gore itself, but that was an opinion joined only by Justices Antonin Scalia and Clarence Thomas.”

Hasen offers a very confusing account of Kavanaugh’s citation of the two cases. Here is the relevant passage from footnote 1 of Kavanaugh’s opinion:

Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker, 146 U. S. 1, 25 (1892). In a Presidential election, in other words, a state court’s “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” Bush v. Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.” Id., at 115.

As you can see, Kavanaugh first quoted a passage from Chief Justice Rehnquist’s concurring opinion in Bush v. Gore. (Contrary to what Hasen’s readers might think, this wasn’t some “further” point, and Kavanaugh made explicit that he was citing a concurring opinion.) In that concurring opinion, Rehnquist refers specifically to Bush v. Palm Beach when he states: “But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail.” In other words, Rehnquist is offering the same understanding of what the Court “indicated” in Bush v. Palm Beach as Kavanaugh is.

What’s more, while Hasen is correct that the unanimous opinion in Bush v. Palm Beach “did not resolve” the question of a state legislature’s power, Rehnquist and Kavanaugh are on very solid ground as to what it “indicated.” Here is a substantial excerpt from the pages that Kavanaugh cites:

As a general rule, this Court defers to a state court’s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution….

Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U. S. 1, 25 (1892), we said:

“[Art. II, § 1, cl. 2,] does not read that the people or the citizens shall appoint, but that ‘each State shall’; and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”

There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, “circumscribe the legislative power.”…

After reviewing the opinion of the Florida Supreme Court, we find “that there is considerable uncertainty as to the precise grounds for the decision.” [Citation omitted.] This is sufficient reason for us to decline at this time to review the federal questions asserted to be present.

In other words, the Court in Bush v. Palm Beach stated very clearly that it does not defer to a state court’s interpretation of a state law that applies to presidential elections; that in enacting such a law, a state legislature is acting “by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution”; and that the language of that constitutional provision, per McPherson, “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.” The Court refrained from setting forth a holding on this basis only because the “precise grounds” for the Florida supreme court’s decision were unclear.

2. Hasen contends that Kavanaugh “mischaracterized an article by professor Richard Pildes about whether deadlines should be extended for receipt of ballots in light of the pandemic.” But Kavanaugh did not purport to characterize Pildes’s position. His lead-in to his quote of Pildes states merely: “The States are aware of the risks described by Professor Pildes.” He was, in other words, quoting Pildes only to describe those risks.

3. Hasen contends that “Kavanaugh suggested without evidence that there would be a problem if voting results were not final on election night and results of the election could ‘flip’ to another candidate, even though vote totals are never final on election night and require weeks to count.”

There are two errors here. First, Kavanaugh was setting forth a reason that many states require that absentee ballots be received by Election Day—namely, they “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” He wasn’t offering his own assessment of a potential “problem,” so there would be no reason for him to offer evidence of such a problem. Second, under Hasen’s odd semantics, no ballots could ever “flip” the “results” of an election. But Kavanaugh is obviously using “flip” in its very ordinary sense to mean alter what the outcome would otherwise be.

While I’m at it: I see that another Kavanaugh critic, parroting Hasen’s errors, also contends that Kavanaugh is wrong to state that one reason that states require that absentee ballots be received by Election Day is that they “want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.” If that were a goal, the critic argues, they “would have permitted mail-in ballots that were received prior to Election day to be counted ahead of time, making the final count much more efficient.” But there are obvious reasons—avoiding leaks of early tallies, taking advantage of the efficiencies of counting ballots all at once—why states that want a quick count would not want early counting.