May 09, 2014
May 06, 2014
Raise the Minimum Wage to Fight Abortion?
December 22, 2013
Nuclear Option: Misplaced Conservative Outrage
Harry Reid's recent “nuclear” detonation left many conservatives in high dudgeon over "tyranny of the majority." I recently argued that this contradicts the widely-held view that America is under the thumb of a corrupt bipartisan ruling class, viz.: (a) authoritarian reign by largely leftist oligarchic bureaucratic, judicial and media elite minorities over what President Nixon was once ridiculed for calling the "silent majority"; and (b) illegitimate domination by powerful over powerless minorities.
Although Reid’s main goal was to pack the D.C. Circuit, justices were appointed to the Supreme Court, long before his “nuclear option,” to rubber-stamp and provide faux legitimacy to metastasizing unconstitutional, legislatively created federal bureaucratic minority tyranny since the New Deal. Thanks to them, only the ruling class and "favored" minorities have rights, crushing those of the majority and "disfavored" minorities. Thus, quota discrimination has been imposed in violation of both the Constitution and explicit statutory language; property rights and religious freedom have been undermined; violent criminals have “rights” at the expense of the vast majority of law-abiding individuals; and, worst of all, massively harmful Obamacare has been legitimized in an egregiously disingenuous opinion written by a publicly threatened chief justice.
Reliance upon judges is misplaced. Ruling class Republicans have failed to exercise their existing power to block the tyrannical assault on freedom and representative democracy. House leaders have blocked fulfillment of the very promise that made them leaders. If a genuine opposition party is not established, nothing can save the Constitution – or the representative democracy and freedoms that are the heritage of this country.
November 21, 2013
New York Post piece on the "nuclear option" push in the Senate
President Obama’s timing could have been better. Only two weeks ago in Texas, at a fundraiser, he bragged about “remaking the courts.”
Obama told the audience: “In addition to the Supreme Court, we’ve been able to nominate and confirm judges of extraordinary quality all across the country on federal benches. We’re actually, when it comes to the district court, matching the pace of previous presidents. When it comes to the appellate court, we’re just a little bit behind, and we’re just going to keep on focused on it.”
This was quite a change from June, when he accused Republicans of “cynically” engaging in “unprecedented” obstruction of judicial nominations. The president made those charges when he nominated three judges to the US Court of Appeals for the District of Columbia: Patricia Millett, Cornelia Pillard and Robert Wilkins.
With Republicans filibustering these nominations over the last three weeks, Democrats are now threatening to deploy the “nuclear option” — in effect, ending the ability of senators to filibuster court nominations. On Monday, after the vote to break the filibuster on Wilkins failed, Senate Judiciary Chairman Patrick Leahy (D-Vt.) warned: “The talk about changing the cloture rules for judicial nominations will no longer be just talk. There will be action.”
But this is all political rhetoric; the complaints are exaggerated. In fact, George W. Bush suffered stiffer resistance and longer delays for his nominees than Obama. Bush’s nominees to the DC Circuit faced confirmations dragging on for 707 days on average, with one particular nomination (Brett Kavanaugh) dragging on past 1,000 days.
By contrast, Patricia Millett was nominated on June 4 this year and obtained a vote by the Senate just 149 days later, on Oct. 31; Pillard, 161 days; Wilkins, 167 days; and Caitlin Halligan, 433 days. Earlier this year, the Senate confirmed Obama’s nomination of Sri Srinivasan for the DC Circuit after a 346-day wait. . . .Continued here.
October 20, 2013
New piece at Politico: The dumbing down of America's judges
Think that attending a top university and graduating at the top of the class is the key to your success? Not if you’re headed for a federal judgeship. In fact, today the most accomplished candidates for the bench are the most likely to be rejected. And this phenomenon has only gotten worse with the quality of America’s judges in marked decline.
The evidence of so-called dumbing down is striking: Tracking federal judge appointments over the past four decades, I found that graduates of one of U.S. News and World Report’s top 10 law schools who also served on their school’s law review had a 30 percent lower confirmation rate than their peers who neither went to top law schools nor did particularly well. Looking at all the nominations from the Jimmy Carter through George W. Bush administrations, I also found that confirmation took about 65 percent longer for the first group — and 158 percent longer for students at top law schools who distinguished themselves further by getting clerkships on circuit courts and then the Supreme Court. On top of that, a federal judge whose opinions were cited 20 percent more often than their peers faced roughly a 60 percent longer confirmation process.
So why are America’s best and brightest lawyers having such a hard time getting to the bench? A helpful analogy is jury selection. A few years ago, Greg Mankiw, chairman of Harvard University’s economics department, was called for jury duty. . . . .
Appearance on C-SPAN to talk about "Dumbing Down the Courts," applying economics to understanding judicial confirmations
John Lott talked about his book, Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench, in which he argues that partisan politicians don’t like to confirm smart judges from the other political party because they’re afraid that smart judges have the ability to influence other judges. In his book, he says that judges who graduated in the top 10 percent of their law classes have much longer confirmation processes than judges who don’t. He spoke at an event hosted by the Orange County Federalist Society.
Should Those Who Revere the Constitution Respect Those Who Don’t?
October 16, 2013
Fox News piece: Obama, other Democrats all wrong about Republican obstruction of judicial nominees
The Senate Judiciary committee will vote on either Wednesday or Thursday whether to confirm Robert Wilkins, President Obama’s nominee to the prestigious D.C. Circuit Court of Appeals -- the court often referred to after the Supreme Court as the “second highest court” in the country.
President Obama has spared little rhetoric in threatening Republicans should they dare defeat or delay Wilkins’ nomination. When Wilkins was nominated in June, Obama accused Republicans of being “cynically” engaging in “unprecedented”obstruction of judicial nominations.
Democrats claim that any fair consideration would guarantee Wilkins’ quick confirmation. After all, as they point out, Wilkins was quickly confirmed as a District Court judge in 2010 “without opposition.”
But it might not be such smooth sailing, for after getting on the bench, Wilkins has made a number of controversial rulings -- recently striking down Texas' voter photo ID law and upholding aggregate campaign finance donation limits.
The president and other Democrats complain that Obama’s nominees are suffering the most difficult confirmations ever. Many newspaper articles agree, such as in theNew York Times, USA Today , and the Congressional Research Service.
But, these numbers are fundamentally flawed. . . .Continue here.
October 15, 2013
Racial Preferences at High Court Today
“I thought, ‘Injustice is over! No more discrimination!’” he said. Yet he then assumed his sister would have a career as either a nurse or a secretary. “The nature of injustice is you can’t see it in your own times,” Justice Kennedy said.
But make no mistake, the race-base admissions system at the University of Michigan that led to litigation and eventually a voter-approved ban involved huge, explicit preferences. White and Asian applicants were subjected to a 20-point handicap, equivalent to the difference between an A and B average.
October 08, 2013
CFJ Fights for Free Speech at High Court
September 24, 2013
Dumbing Down the Courts
Lott’s book uses the largest, most detailed data set on judicial confirmations ever assembled to analyze both the reasons behind the increasingly politicized and protracted judicial confirmation process and the factors that determine a nominee’s chances for confirmation. Subtitled How Politics Keeps the Smartest Judges off the Bench, Lott’s book reveals that the brightest nominees have a reduced chance of being confirmed.
September 16, 2013
Obama’s Law Enforcement Priorities
In my view, it was prosecutorial abuse to even bring such a case and judicial abuse to uphold the conviction.
The essence of the devastating dissent (22) by Judge Torruella, a Reagan appointee, which should be read fully, was that the government had violated the very law it used to prosecute Strong, and he lacked the required criminal intent in dealing with what was, after all, a wholly unexpected accident.
By contrast, I contend that the majority judges, appointed by Clinton and Obama,
August 22, 2013
Term Limits for Federal Judges?
June 27, 2013
DOMA: What Supremes Were Really Thinking
June 25, 2013
Court Ends Profiling of Southern States
The Committee for Justice applauds the Supreme Court’s decision ending the federal government’s irrational discrimination against southern states based on an outdated, 50 year old formula. While there was a rational basis for targeting southern states (plus Alaska) when the preclearance formula was written 50 years ago, continuing to do so until today amounted to geographic profiling based on outdated stereotypes. Decisions based on such irrational stereotypes are the essence of impermissible discrimination.
Although there is already plenty of howling about this decision, this is not a Court that is unsympathetic to voting rights. Just last week, the Supreme Court, by a 7-2 vote, struck down an Arizona law demanding proof of citizenship from people registering to vote. Moreover, even today’s decision took a narrow, cautious approach. The Justices did not strike down Section 5 of the Voting Rights Act, just the formula used to implement it. And the heart of the Act, Section 2, remains intact. The overreaction to the decision simply underscores the courage it took for the Supreme Court to right this wrong and end geographic profiling.
June 24, 2013
End of the Road for Racial Preferences?
(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases – Grutter and Gratz – in which the Supreme Court last addressed the use of race-based admissions in higher education.)
We applaud the Supreme Court’s decision today that race may not be used as a factor in admissions where “workable race-neutral alternatives would produce the educational benefits of diversity.” The decision means a diminished role for race and an increased emphasis on socioeconomic disadvantage in admissions.
The Supreme Court remanded the case for consideration of whether its standard was met by the University of Texas at Austin. But that does not subtract from the importance of the new standard, which universities will ignore at their own peril given the Court’s lopsided vote – the 7-1 decision was joined by all of the liberal Justices except for Ginsburg (Kagan was recused) – and the opinion’s clear language.
The Supreme Court made clear that when evaluating a university’s claim that race-neutral alternatives (such as Texas’s Top Ten Percent Plan Texas) are insufficient to produce a diverse student body, “the University receives no deference." The less rigorous standard that resulted from some interpretations of Grutter, where good faith consideration of race-neutral alternatives was sufficient and judicial deference to schools was generous, is gone. As the Court said today:
Most importantly from a practical standpoint, today’s decision shifts the burden of proof to universities: "[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."
In the longer term, we are hopeful that today’s decision presages the end of the road for admission systems that explicitly take race into account. The Fisher decision is just a step – albeit an important one – along that road. No one can say how fast the end will come or how much more litigation will be required but, after today, the handwriting is on the wall for the decline of race-based admissions.
Ironically, the Supreme Court’s decision to remand the case rather than strike down Texas’s admission system may hasten the demise of race-based admissions. By ensuring that the lawsuit against the University of Texas continues to be litigated – possibly going back up to the Supreme Court at some point -- the decision keeps the issue of racial preferences in the public eye. That cannot be good news for advocates of racial preferences, because all indications are that Americans overwhelmingly oppose such preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous opinion surveys. For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).
June 14, 2013
Supreme Court’s Fragile Majority
We share Greenhouse’s observation that
We say “arguably” because progressives like Greenhouse would contend that it is inaccurate to call a Court with four Nixon appointees “liberal,” and some conservatives would say that the era of liberal activism on the Supreme Court has yet to end. In fact, many conservatives will be saying that loudly by month’s end if the Court’s decision on the Defense of Marriage Act goes the way we expect.
Should the Best Justices Publicly Praise the Worst?
If total calamity is to be averted, conservatives must effectively educate the public about dangers posed by extremist liberal judicial activism. Robert Bork was defeated by vicious lies. Leftist fanatics should be defeated by the little-known media-buried truth.
My article provides an easily understood review of the Scalia-Thomas catalog of shocking truths.
See SSRN or here (with links), and here (without links).
June 05, 2013
IRS: Why Obama Should Read the Papers
June 04, 2013
Why Obama Wants to Pack the DC Circuit
President Obama’s high-profile announcement today of three DC Circuit nominees – left-wing law professor Cornelia Pillard, U.S. District Court Judge Robert Wilkins and appellate attorney Patricia Ann Millett – is intended to provoke a fight with Senate Republicans rather than to address any need for additional judges on the Circuit. A battle over these nominees is inevitable, both because the DC Circuit already has more judges than it needs and because nominees to this Circuit – the most powerful court in the nation after the Supreme Court – are subject to a higher level of scrutiny.
Senate Democrats raised the already high bar to confirmation of DC Circuit nominees when they blocked two stellar Bush nominees to the Circuit, Miguel Estrada and Peter Keisler, and kept President Bush’s other four nominees to the Circuit waiting between one and three years. Obama appeared to concede as much today when he said “Democrats weren’t completely blameless when I was in the Senate.” Left unsaid was the fact that there would not be three vacancies on the DC Circuit now if not for the Democrats’ obstruction of Estrada and Keisler.
After more than four years of relative disinterest in lower court nominees – Obama has not lobbied for any of them nor appeared alongside them before today – why is the President suddenly so concerned about the DC Circuit? While we cannot read Obama’s mind, we can rule out any possibility that he is genuinely worried that the DC Circuit doesn’t have enough judges. Despite there being two DC Circuit vacancies since he took office, Obama waited 20 months to make his first nomination to the Circuit and three and a half years to make his second.
That’s because Obama was well aware that the DC Circuit has more than enough judges. The Circuit’s eight active judges and six senior judges are the equivalent of eleven full-time judges, which is precisely the capacity specified by the 2008 statute that reduced the court’s judges from 12 to 11 due to a low workload. Five years later, the DC Circuit’s workload remains the lowest of any of the 12 circuit courts.
President Obama’s newfound concern about DC Circuit vacancies is even harder to explain in light of the glacial pace of his judicial nominations generally, including to courts that badly need additional judges. He has made nominations to fill only one-quarter of the 32 vacancies classified as “judicial emergencies” (none of the 32 are on the DC Circuit). If he has any genuine concern about judicial vacancies, we suggest Obama support Sen. Grassley’s bill to shift two of the unfilled DC Circuit seats to the overworked Second and Eleventh Circuits.
We suspect the President’s sudden interest in the DC Circuit is motivated by several political factors. One, Obama is undoubtedly unhappy with several DC Circuit decisions – especially the one that found his recess appointments to the NLRB to be unconstitutional – and wants to shift the Circuit to the left by adding liberal judges to it. Two, by provoking a filibuster showdown with Senate Republicans, Obama is providing Majority Leader Harry Reid with an excuse to use the nuclear option to permanently eliminate the minority’s right to filibuster nominees. Three, President Obama may be making a big deal about DC Circuit nominees largely for show, hoping to blunt criticism from his allies over the glacial pace of judicial nominations.
Whatever Obama’s motivation, Senate Republicans should hold firm in the fight the President has provoked with today’s nominations. Short of Supreme Court review, the best hope of blocking Obama’s attempts to bypass Congress with overreaching executive orders and regulations lies in the DC Circuit, which hears many of the applicable cases. President Obama should not be allowed to tilt the Circuit, which currently has four Republican and four Democratic appointees, to the left.
Any attempt by Obama and Reid to use this fight as an excuse for crippling the minority’s rights in the Senate must also be fiercely resisted. If the minority’s right to filibuster nominees is lost now, it won’t be available if and when a center-right vacancy on the Supreme Court gives President Obama a chance to install a liberal majority and push the Court sharply to the left.
June 03, 2013
DNA Decision Sets Dangerous Precedent
An alarming precedent was set today when the U.S. Supreme Court decided 5-4 in Maryland v. King that the police can take DNA samples from those arrested for, but not yet convicted, of a serious offense.
In a devastating dissent joined by three of his colleagues, Justice Scalia explained why the majority’s decision is a big step towards a dangerous loss of liberty and privacy. “Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote, reminding us that “Nearly one-third of Americans will be arrested for some offense by age 23.”
While the Maryland statute at issue in this case does provide some safeguards, government guarantees of privacy and confidentiality are far from watertight. Consider the recent problems at the IRS, which include the agency leaking nine confidential applications of conservative non-profits to ProPublica, and leaking the tax return of the National Organization for Marriage – a pro-traditional marriage organization – to a gay rights group.
We suggest that instead of inventing privacy rights – concerning abortion and homosexuality for example – that require a long stretch from the text of the Constitution, the Supreme Court should focus on protecting the privacy rights that are clearly spelled out in the Fourth Amendment. In his dissent, Justice Scalia points out that “The Fourth Amendment lists ‘persons’ first among the entities protected against unreasonable searches and seizures.”
The majority tries to justify its decision by analogizing Maryland’s collection of DNA to the fingerprinting of arrestees for identification purposes. However, Justice Scalia destroys that analogy by carefully demonstrating that Maryland is using DNA not to identify arrestees but to accuse them of additional crimes. We would add that the majority’s contention that there is little difference in intrusiveness between fingerprinting and DNA collection brushes aside the fact that when the government possesses your DNA, it possesses the detailed blueprints for your entire body.
No doubt, some of CFJ’s supporters cheered today’s decision because it advances the important cause of crime solving. We are very sympathetic to that cause, but it must be pursued in a manner that complies with the Constitution’s vital limits on the power of the government. Too often, conservatives forget that big government poses a threat to our liberties not only through out-of-control regulation, taxing and spending, but also through over-zealous crime fighting.
As Justice Scalia concedes,
We echo Justice Scalia’s points here and note that the noble cause of solving crimes must occupy a lower place in constitutional analysis because, unlike the right to be free from unreasonable searches and seizures, it is not explicitly guaranteed by the Constitution. That could be changed by amending the Constitution, but there is little support for such an amendment.
Finally, Justice Scalia reminds us of the irony of today’s decision: