Recently in Judicial Selection Category

Impeach Earl Warren

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Most readers are probably not old enough to remember the demand, largely but not entirely from segregationists unhappy with Brown v. Board of Education, to "Impeach Earl Warren."  Although in criminal law Warren was a willing tool of the much smarter William J. Brennan, and the author of one of the all-time most lawless decisions (Miranda), there were no grounds to impeach him.  Just being a liberal or not very smart is not an impeachable offense.  So the "Impeach Earl Warren" crowd was relentlessly dismissed and ridiculed, not without reason.

Yesterday, the new version of "Impeach Earl Warren" showed up in the form of Senior United States District Judge Richard Kopf, who, in expressing his disagreement with the Hobby Lobby decision, point-blank told his superiors on the Supreme Court to "shut the f___ up."  He did this on his widely read blog, "Hercules and the Umpire."

The question has understandably been raised whether Judge Kopf should continue blogging.  It's the wrong question.  The correct one is whether he should continue judging, and the answer is no.

Barron Makes It Through

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Ex-Stephen Reinhardt clerk and hard-core liberal Harvard law professor David Barron was confirmed by the Senate today for a seat on the First Circuit.  He could not have made it through under the filibuster rules that Harry Reid ended in order to allow the President to pack the DC Circuit.  As we now see, it's not just the DC Circuit that will be headed downhill.

Kent had an earlier post on Barron.

The Barron Fight

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The WSJ has this editorial today (subscription required) with the above title:

Senator Rand Paul plans a filibuster Wednesday against judicial nominee David Barron for writing secret memos supporting the legality of using a drone to kill terrorist Anwar al-Awlaki. That's a reason to support Mr. Barron in our view, though there are other reasons to defeat his nomination.
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The real problem with Mr. Barron is his liberal judicial philosophy. In 2001 Mr. Barron wrote an article for the Duke Law Journal criticizing the "new federalism" because central authority can make better decisions for localities than the locals can. The revival of federalism is dangerous, he wrote, because it prevents us from "thinking creatively about ways central governments can promote local power."

In 2006 Mr. Barron wrote "What's Wrong With Conservative Constitutionalism" for the Harvard Law and Policy Review, laying out a theory of "progressive constitutionalism" and judicial activism that would make Sonia Sotomayor blush.
The President has nominated for a seat on the First Circuit the ghost of America's worst federal circuit judge, Stephen Reinhardt.  Indeed, the nominee, Harvard law professor David Barron, is worse than merely Reinhardt's ghost; he's Reinhardt's ex-clerk.  I guess if you're going to learn pro-criminal extremism, you might as well learn from its Number One judicial practitioner.

But even with a Senate dominated by the President's party, Barron seems to be in trouble. As the Hill reports, Sen. Rand Paul has placed a hold on the nomination:

Sen. Rand Paul has warned Senate Majority Leader Harry Reid (D-Nev.) that he will place a hold on one of President Obama's appellate court nominees because of his role in crafting the legal basis for Obama's drone policy.

Paul, the junior Republican senator from Kentucky, has informed Reid he will object to David Barron's nomination to the 1st Circuit Court of Appeals, unless the Justice Department makes public the memos he authored justifying the killing of an American citizen in Yemen.

Talk about a conundrum!  On the face of it, Barron seems like a nominee it's worth pulling out all the stops to oppose.  But with enemies like Patrick Leahy and the ACLU (see below), should we have second thoughts?




Nominee for USCA 6?

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Andrew Wolfson reports for the Louisville Courier-Journal:

Kentucky Supreme Court Justice Lisabeth Hughes Abramson of Louisville is being vetted by the FBI for a seat on the U.S. Court of Appeals' 6th Circuit.
I have it on solid local authority that she would be a vast improvement over the departed Judge Boyce Martin.

Do You Like Stephen Reinhardt?

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I sure hope you do, because you're about to get lots more judges just like him.

Today, the man who endlessly prattles about civility and bi-partisan cooperation, Majority Leader Sen. Harry Reid, with the backing of the (current) Democratic membership in the Senate, changed the filibuster rule for judicial nominees below the Supreme Court.  In doing so, he broke precedent that I believe has been in effect in the Senate for about 200 years. To their credit, three Democratic Senators, Levin, Manchin and Pryor, voted with all Republicans against the change.

Why, you may ask, is this happening now?  As usual in Washington, and particularly with this hyper-political Administration, it has to do with raw power (remember, e.g., that we got Obamacare on a Democrats-only vote, critically facilitated by what we now know was a flagrant lie about whether Americans could keep their own policies if they liked them).

In particular, President Obama has three candidates for the DC Circuit who have been unable to clear the filibuster hurdle as it stood until today.  Among them is the cordial but ideological Georgetown Law Prof. Cornelia Pillard, who has been described as "Reinhardt in a skirt but less moderate."  The Administration has an ambitious regulatory agenda it can't get through Congress because the opposition party controls the House.  It thus plans to push through what it wants via executive orders and administrative agency rules, all of which will be challenged in court.  And the court that will decide those challenges will be none other than the DC Circuit.  My goodness!

Dr. Frankenstein Nukes His Monster

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Filibustering of judicial nominees was virtually unknown until the Democrats began regular filibusters during the previous administration.  The WSJ has this Q&A on the "nuclear option," changing the rules of the Senate to prevent filibusters of presidential nominees to executive and judicial positions. 

In 2005, Republican senators threatened to [do the] same in the face of Democratic opposition to former President George W. Bush's judicial nominations. In 2008, Mr. Reid himself swore that as long as he was leader, he would never turn to the nuclear option, saying it would be a "black chapter in the history of the Senate."
Today the Senate did just that, passing the rule amendment 52-48.

Also in the WSJ is this story by Janet Hook and Kristina Peterson:

Democrats say the filibuster has been abused as a weapon of obstruction rather than a last-resort vehicle for principled opposition. Republicans have "turned 'advice and consent' into divide and obstruct,'' Mr. Reid said.
But Republicans didn't "turn" anything.  They continued straight down the trail that Reid himself had blazed when the shoe was on the other foot, although treading it somewhat more often.  Republicans have some degree of hypocrisy in their rhetoric as well, of course, but Reid takes the prize.

So for the next year, President Obama will be able to fill vacancies on the federal bench with judges who share his viewpoint to a much greater degree that President Bush was able to.  Whether that continues into the last two years of his tenure depends largely on the outcome of the next election.  It would take a pretty hefty Republican sweep to change things, but gains for the out-of-White-House party are the norm for second-term mid-term elections.

For the next four years after that, if the American people follow their usual post-WW II practice of turning over the White House every eight years (well, almost every), today's vote will result in a Republican President having a freer hand.  Hopefully the people will continue with their traditional wisdom.  Political parties are like compost piles; if you don't turn them over once in a while they start to stink.

One Step Forward and Two Steps Back

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One step forward:  One of the most air-headed federal judges in the history of the Republic is leaving.  So long, Rosemary Barkett.

Two steps back:  She's going to the international court that resolves claims arising from the Iranian seizure of the American embassy, thus giving Iran one more vote; and Barack Obama will name her replacement.


Professor Michael Yelnosky of Roger Williams U. Law has this article in the WaPo on the ABA's judicial selection committee.  His thesis is that the committee is biased in favor of business interests, but in the process of making his case he reveals a typical academic blind spot.

Five of the six new members work for some of the country's largest law firms and regularly represent some of this country's biggest corporations. The sixth represents businesses defending against claims for which they have liability insurance -- "insurance defense" cases. On the committee, they will join four other lawyers who work at large corporate firms, four who represent businesses in smaller law firms and one who specializes in defending lawyers sued for malpractice.

Not one of the lawyers on the committee for 2013-14 regularly represents individuals who bring lawsuits alleging they were harmed by the actions of corporations or other business entities, and not one represents individuals charged with anything other than white-collar crimes.

Okay, so there are criminal defense lawyers on the committee, and Yelnosky is all upset that they are all white-collar defense lawyers as opposed to lawyers who defend murderers, etc. (red-collar?).

Why is the good professor not upset that all of the criminal law practitioners are defense lawyers and not prosecutors?
Todd Ruger reports for the NLJ (free registration required):

The U.S. Senate unanimously confirmed Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit on Thursday, making him President Obama's first successful nomination to the court and the first new judge there since 2006.

Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, saw his nomination sail through a normally contentious Senate confirmation process. The 97-0 vote reflected his broad support from the legal community and legal pedigree that included work for both Democrat and Republican administrations.
The D.C. Circuit does not handle as many criminal cases as most circuits.  CJLF filed its very first brief in that court just this year.  The circuit has no jurisdiction to review criminal cases from the local D.C. court system, either on appeal or habeas.*

The crime-related cases the D.C. Circuit does handle, though, include some of the most controversial ones.  The Gitmo detainee cases are there.  The lethal injection importation case, noted above, is there.  The habeas "fast track" case will be there shortly.

So where does Judge Srinivasan stand on the issues of greatest importance to enforcement of the criminal law?  I have no idea.  His work as an advocate for the government in his present position is highly regarded, but that work is advocating for positions determined by others.  A Lexis search for articles turned up nothing on criminal law or anything else.  We will have to wait and see.

* No, that doesn't violate the Suspension Clause.  Not even liberal demigods Brennan and Marshall thought it did.

Trust in the Judiciary

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Trust in the Supreme Court is routinely higher than in either the President or Congress, but this is not necessarily good news for the Justices.  My own view is that growing skepticism about the Court is the product of judicial sprawl.  The Court is seen, all too often correctly, as adopting the policy views of the majority of its members at any one time, rather than adhering to law.  This is the sort of judicial indiscipline that brought us such decisions as Miranda and Kennedy v. Louisiana.

But whatever the reason, the Court is slipping.  Reader's Digest reports that all nine Justices finished behind  --  you guessed it  --  Judge Judy:

  
  • We trust TV judges more than Supreme Court Justices. Straight-talking dispute settler Judge Judy (51%) had the highest score of all the judges on our list - including all nine Supreme Court Justices, and was closely followed by Judge Joe Brown (48%).

    Read more here: http://www.heraldonline.com/2013/05/07/4840121/readers-digest-announces-100-most.html#storylink=cpy

  • Read more here: http://www.heraldonline.com/2013/05/07/4840121/readers-digest-announces-100-most.html#storylink=cpy

  • Read more here: http://www.heraldonline.com/2013/05/07/4840121/readers-digest-announces-100-most.html#storylink=cpy


The Memorial Service for Judge Bork

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My wife and I had the sad honor earlier this week of being invited by Judge Bork's family to a memorial service dedicated to his life and work.  It was a bracing reminder of how Judge Bork, with few others by his side at the time, led a revolution in legal thinking that benefits jurisprudence to this day, even if not followed nearly as often as its power rightly commands.

The service, shown here, also contained not a few reminders of his wicked sense of humor.

Kamala Harris for SCOTUS?

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President Obama is taking flak today for calling California Attorney General Kamala Harris "the best looking attorney general."

The President might be criticized for many things, like bankrupting the country, but the yelping that he's "sexist" is nonsense.

Liberals, please, get a life.  Obama hit the nail on the head:  Ms. Harris is, indeed, very attractive.

The problem is not her appearance or remarks about her appearance.  The problem is her public record and legal philosophy, which includes, but is hardly limited to, opposition to the death penalty, a punishment California voters recently reaffirmed.

Ms. Harris, it seems, is being "mentioned" as a possible Supreme Court nominee. But her noteworthy path to prominence eclipses her legal acumen, as Ed Whelan demonstrates.


The WSJ has an editorial titled "Judges, Politics, and George Soros."

Of all the ways to select judges, among the worst is to restrict the chief executive to choosing from a short list given to him by a committee dominated by the state bar.  This method is sometimes called the "Missouri plan."  A common and grossly misleading name is "merit selection."  The theory is that the commission is made up of fine, nonpartisan, upstanding people who will select on the basis of merit, free from political considerations.  The reality is that the commissions come to be dominated by the political left, and the governor is forced to choose the least bad of a short list of judicial activists.  So-called "merit selection" actually just substitutes bar politics for general politics, a change from bad to worse.

Another bad way to choose judges is to have them run for election like other elected officials, with political party nominations and named opponents on the ballot.  Pennsylvania has had some bad experience with this lately.  The editorial notes that three former governors are now pushing for the state to change from bad to worse.

Meanwhile, states that have tried the "Missouri plan" and are fed up with it are moving in the other direction, according to the editorial.
U.S. District Judge Edward Garcia of Sacramento has announced his full retirement, Denny Walsh reports for the SacBee.  He has been on "senior status" for some time.

This is a timely reminder of what is at stake in tomorrow's election.  The President we choose will be choosing the judges of all federal courts for the next four years.  As important as Supreme Court appointments are, the wrong President can also cause grave damage through lower court appointments.  Jimmy Carter got no Supreme Court appointments, thank God and Potter Stewart, but he transformed the Ninth Circuit into the Ninth Circus, and we feel the pain to this day.

Let us hope the American people make the right choice.

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