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Stras Confirmed to USCA8

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Alex Swoyer reports for the Washington Times:

The Senate confirmed another one of President Trump's Circuit Court nominees on Tuesday over "blue slip" protests from Democrats, who said the nominee never should have been given a hearing, let alone a vote.

Minnesota Supreme Court Justice David Stras was confirmed to the 8th U.S. Circuit Court of Appeals by a 56 to 42 vote, becoming Mr. Trump's 13th Circuit Court pick to clear the Senate.

But Democrats said Justice Stras was only placed on the federal bench after Republicans disregarded the "blue slip" tradition, which allows home state senators to sign off on judges from their home states.

Trey Gowdy for USCA4?

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Congressman Trey Gowdy has announced he will not seek reelection, Reid Epstein reports for the WSJ.

On Wednesday, Mr. Gowdy said he would be "returning to the justice system."

"I will not be filing for re-election to Congress nor seeking any other political or elected office," he said. "Whatever skills I may have are better utilized in a courtroom than in Congress, and I enjoy our justice system more than our political system."

Surely he is not worried about reelection if he chose to run.  His district is solidly Republican.  He must have something else in mind.

Hmmm.  "Returning to the justice system," but not any "political or elected office."  The latter rules out his old job as local prosecutor or a run for state attorney general, which are both elected offices.  The federal judicial vacancy website lists one current vacancy on the Fourth Circuit with no nominee and one upcoming vacancy.  There is a South Carolina District Court vacancy, but it has a nominee already.

Does Mr. Gowdy have his eye on the Fourth?  He would be a definite improvement to a court that has gone downhill lately.

There were few judges in the federal courts more consistently pro-criminal than the late Harry Pregerson.  Nominated for the Ninth Circuit by President Carter, Judge Pregerson was particularly noteworthy for being asked point-blank in his confirmation hearing whether he would vote for his own opinion about the outcome of a case or a contrary result required by the law, answering that he would vote his own opinion, and being confirmed anyway.  Give him points for candor, at least, both in that answer and remaining true to it until this year.

Today, on the very last day of the year, a divided three-judge panel of the Ninth Circuit overturned the conviction in a California capital case, with Judge Pregerson casting the deciding vote.  Judges Reinhardt and Pregerson voted to grant the writ of habeas corpus, reversing District Judge Ronald Lew and effectively reversing the California Supreme Court.  Judge Jacqueline Nguyen dissented.  The four federal judges to review this case, therefore, divided evenly, yet the decision is to overturn the judgment of the state courts.

But wait.  Judge Pregerson died November 25.  Doesn't that matter?  Apparently not.  "Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete," the opinion says.
Some years back, I asked a person who had been connected with the Bush Administration regarding judicial nominations why the appointments to the Ninth Circuit had been so spotty.  While some appointments had been excellent, there were also disappointments.  The "No More Souters" mantra that prevailed in Supreme Court nominations did not extend to the Ninth.  The answer genuinely shocked me, and by this point I was jaded enough that that was a high threshold.  The reply was to the effect that they considered the Ninth so screwed up as to be hopeless, so it really wasn't a priority.  One-fifth of the American population lives in the Ninth Circuit, and they just didn't care.

The Trump Administration and the Senate leadership have been praised in some quarters and condemned in others for getting judicial nominations and confirmations through quickly, relative to past administrations, but that evidently does not apply to the Ninth.  There were four vacancies as of yesterday, all existing before President Trump's inauguration.  (A fifth was added today.)  There are two more coming in 2018.

How many nominations do we have?  One.  How many confirmations?  Zero.

Many of the vacancies are from the retirements of persons of sense, so these seats must be filled with other persons of sense just to maintain the status quo.  Filling Harry Pregerson's seat will almost certainly be an improvement because it is pritnear impossible to pick anyone worse, but how much of an improvement remains to be seen.  The possibility, however slim, of losing the Senate in 2018 makes the nomination and confirmation of quality judges a priority, but we are not seeing any signs it is recognized as such.

USCA9 Judge Kozinski Resigns

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Ashby Jones reports for the WSJ:

Alex Kozinski, a prominent federal appellate judge, resigned Monday following sexual-harassment allegations from former law clerks and others.

More than a dozen female clerks, lawyers and others ‚Äčtold the Washington Post in recent weeks that Judge Kozinski, a senior judge on the Ninth U.S. Court of Appeals in Pasadena, Calif., had made inappropriate, sexual comments at work or had engaged in inappropriate sexual touching.
Sam Bray at the Volokh Conspiracy has this post on developments in this area.  He links to this page on the House Subcommittee on the Courts, Intellectual Property, and the Internet with video of a hearing held on November 30 and PDF versions of testimony by Bray, Amanda Frost, Michael Morley, and Hans von Spakovsky.  Judiciary Committee Goodlatte's remarks are here.

Court Packing

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Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit has this op-ed in the NYT:

A prominent conservative law professor, Steven Calabresi, and one of his former students recently published a proposal to expand the federal judiciary by creating hundreds of new judgeships. A founder and chairman of the Federalist Society (of which I have been a member since 1984), Professor Calabresi promoted his "judgeship bill" as a way of "undoing" President Barack Obama's judicial legacy. But there is nothing conservative -- or otherwise meritorious -- about this proposal.

Deadlines and Jurisdiction

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When is a filing deadline jurisdictional, and when is it a "mandatory claim-processing rule"?  The U.S. Supreme Court addressed that issue today in Hamer v. Neighborhood Housing Service of Chicago, No. 16-658.  This is a civil case, but criminal lawyers who handled federal habeas corpus petitions need to pay attention.  Federal habeas corpus cases are "civil" for this purpose.

The difference between the two types of deadlines arises mainly when the other party does not object.  An objection based on a "claim-processing rule" can be forfeited by failure to object, but a jurisdictional defect means that everything that happens in the case is void, objection or not.
President Trump has nominated U. Penn. Professor Stephanos Bibas to the U.S. Court of Appeals for the Third Circuit (Penn., N.J., Del.).

Among other works, Prof. Bibas is the co-author of a brief, interesting essay, "The Heart Has Its Value: The Justifiable Persistence of the American Death Penalty."  Also noteworthy is The Right to Remain Silent Only Helps the Guilty, 88 Iowa L. Rev. 421 (2003).

Orin Kerr has this post at VC.  Doug Berman has this post at SL&P.

Also nominated to courts of appeals are Colorado Supreme Court Justice Allison Eid to the Tenth Circuit and District Judge Ralph Erickson to the Eighth Circuit.
One thing that really makes my eyes roll is seeing someone state the question presented in a case in a way that assumes one side of a hotly disputed point and then phrases the "question" as something that no one would dispute based on that assumption.  It's bad enough when advocates do it.  It is inexcusable for a judge to do it.  For the majority of a U.S. Court of Appeals en banc to join an opinion doing that is a head-shaker.  The Fourth Circuit opinion in the travel ban case, International Refugee Assistance Project v. Trump, No. 17-1351, begins:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains "a law for rulers and people, equally in war and in peace." And if so, whether it protects Plaintiffs' right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.
I don't have time at present to write up a complete analysis of the opinion, but right out of the gate this seems to call for Supreme Court review.

Ten Federal Court Nominees

Debra Cassens Weiss reports for the ABA Journal:

President Donald Trump nominated 10 lawyers Monday for federal judgeships, including two state judges from his list of 21 potential U.S. Supreme Court nominees.
*       *       *
The two judges from the Supreme Court list are Michigan Supreme Court Justice Joan Larsen, nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals, and Justice David Stras of the Minnesota Supreme Court, nominated to the St. Louis-based 8th U.S. Circuit Court of Appeals.

Larsen is a former University of Michigan law professor and a former law clerk to late Justice Antonin Scalia. Stras is a former University of Minnesota law professor and a former law clerk to Justice Clarence Thomas.

The nomination of another judge from the Supreme Court list, U.S. District Judge Amul Thapar of Kentucky, is pending. He has been nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals. His is the only other nomination to the lower federal courts so far.

Other nominees are:

Splitting the Ninth, Again

The idea of splitting the Ninth Circuit is in the news again.  In this article by Sarah Westwood of the Washington Examiner, based on an interview, she quotes President Trump saying he has considered the proposals to break up the Ninth.  He states that his main concern is judge-shopping.

At the WaPo, Amber Phillips writes, "So, no. President Trump cannot wave his pen and break up a federal court like he suggested he wants to do."  Phillips does not quote any language by the President saying or implying that he believes he can do that unilaterally, and there is none in Westwood's article, so I don't know where she gets that.  It would, of course, take an act of Congress.

Phillips goes on to state some reasons for not breaking up the Ninth, but she fails to recognize the best one from the President's point of view.  Breaking up the Ninth would aggravate, not ameliorate, the judge-shopping problem that is the President's foremost, and entirely legitimate, concern.

If the states with larger percentages of person of sense, such as Arizona and Alaska, were split off into a Twelfth Circuit, the remaining Ninth Circuit would be even loonier lefty than it is now.  Since plaintiffs, at present, have too much power to choose the venue, loony lefty plaintiffs would shop their suits to the even-leftier rump Ninth.

The answer to judge-shopping is venue reform, not splitting the Ninth. 

Fixing the Ninth will require a series of solid appointments over a good many years.  If President Trump serves two terms, he may make a good dent in it.  Let's hope he gives fixing the Ninth a higher priority than President Bush did.
Last week, I commented on Justice Sotomayor's dissent in the McGehee case from Arkansas.  She said that the Supreme Court should stay the Arkansas executions to resolve a difference of opinion between federal courts of appeals regarding the availability of an alternative method of execution when an inmate claims the state's method creates an excessive risk of pain.

My comment at the time was that there was not yet a circuit split that was ripe for Supreme Court review because the decision of a Sixth Circuit panel was not yet that circuit's final word.  The court might take up the case for rehearing before the full court (en banc).

Sure enough, today the Sixth did exactly that.

Repeal and Replace

President Trump has issued this Executive Order titled, "Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States."  Section 13 provides:

Sec. 13.  Revocation.  Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Daniel Nasaw describes the differences in the old and new orders for the WSJ.

When a case becomes moot pending review, the lower court decision should be vacated and cease to have effect as precedent.  This is called the Munsingwear rule.  "The point of vacatur is to prevent an unreviewable decision 'from spawning any legal consequences,' so that no party is harmed by what we have called a 'preliminary' adjudication."  Camreta v. Greene, 563 U.S. 692, 713 (2011), quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40-41 (1950). 

In other words, the rule facilitates getting rid of bad law that can no longer be reviewed.  It also provides fodder for bad jokes about Munsingwear briefs.

The Ninth Circuit should grant rehearing en banc on the prior case, vacate as moot, and wipe that precedent off the books.  If someone wants to challenge the new order, that is a new case.

And Congress still needs to do something about venue and judge shopping.

Summary Reversal on Excusing Jurors

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The U.S. Supreme Court has once again summarily reversed a federal court of appeals for failure to obey Congress's landmark reform of habeas corpus law in 1996.  Once again, it is a capital case in a circuit divisible by 3.

Because juries in the penalty phase of capital cases must be unanimous, it is particularly important to remove from the jury those members of the venire who will not actually weigh the aggravating and mitigating circumstance but instead will automatically vote against the death penalty no matter what.  This is particularly important in states which stupidly do not require the jury to deliberate to unanimity one way or the other but instead allow a single holdout juror to veto the decision of the other eleven.

People often do not state their views straightforwardly.  Sometimes they are dishonest, but more often they just haven't thought them all the way through themselves.  Determining which jurors are "Witherspoon/Witt" excludable therefore involves some judgment.  The trial judge, who sees the venire members live and in full context, is entitled to considerable deference in making this judgment.  However, anti-death-penalty judges who are just itching to overturn a death sentence regardless of how richly deserved it may be find jury selection to be a fertile source of excuses to nullify a law they disagree with.  To forbid such misuse of the law and limit the lower federal courts' power to overturn state decisions to cases of clear error, Congress enacted the "deference" provision of the Antiterrorism and Effective Death Penalty Act of 1996.  Federal district and circuit judges who regard themselves as infinitely superior to state supreme court justices hate this law and regularly ignore its mandate.  This is particularly common in the Third, Sixth, and Ninth Circuits.  Reversing them has become a significant part of the Supreme Court's workload.

In today's decision in White v. Wheeler, the Court includes the following admonition without dissent:

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty.
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary.  Judges who cannot or will not decide capital cases fairly should not sit on them.  They should be excludable just like the jurors.  If they will not recuse themselves, perhaps it is time to establish a challenge for cause.  How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

Jonathan Adler has this post at the Volokh Conspiracy.

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