Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearingsOn the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that […]

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Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

On the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that may come before them if they are confirmed. At his confirmation hearing, then-Judge Neil Gorsuch cited that rule numerous times as grounds for refusing to answer questions about his views on particular legal issues. After comparing Gorsuch’s responses to those of nominees between 1939 and 2010, including Ruth Bader Ginsburg, Collins and Ringhand found that Gorsuch was the least responsive nominee in decades, and they are worried he is setting a trend.

Neil Gorsuch’s confirmation hearing (Art Lien)

Collins and Ringhand explain that the practice of refusing to respond to certain questions is misattributed to Ginsburg, and in any case tells only half the story. After analyzing a database of confirmation-hearing questions and answers from every hearing between 1939 and 2010, they found that nominees long predating Ginsburg refused to answer questions regarding cases that might come before them. But these same nominees, including Ginsburg, were willing to respond to questions about their support for longstanding precedent that had become a part of the constitutional canon. The authors conclude that the “Ginsburg Rule” is really two rules: First, nominees have consistently refused to answer questions about unresolved legal questions likely to come before the Supreme Court to avoid the appearance of bias and preserve judicial independence; and second, aside from Gorsuch, nominees in the modern era have consistently been willing to confirm their support for well-established Supreme Court precedent.

Nominees’ refusal to answer certain types of questions is as old as the confirmation process itself. In 1939, Justice Felix Frankfurter was the first to undergo public confirmation hearings at which he answered questions under oath. He was also the first to refuse to answer some questions on the grounds that it would be improper to do so. At almost every confirmation hearing since, the nominee has asserted what Collins and Ringhand refer to as a “privilege” to refuse to respond to some questions.

Nominees assert that privilege for two reasons: First, to avoid any appearance of having prejudged an issue that could come before the court; and second, to protect judicial independence by refusing to make promises or commitments to senators on the Judiciary Committee in exchange for confirmation.

Collins and Ringhand agree these concerns are valid, but they argue that another value is at stake in Supreme Court confirmation hearings that cuts in favor of responsiveness, at least to some types of questions. Such hearings provide an opportunity for the senators, and by extension those they represent, to determine whether the nominee deserves a spot on the Supreme Court. The Senate can only serve that role if the nominees answer questions regarding the precedents and doctrines they support.

The authors have studied the confirmation hearings stretching back to Frankfurter’s in 1939 to measure the frequency with which would-be justices refused to answer questions compared to their willingness to give firm views regarding established case law. They analyzed data from the U.S. Supreme Court Confirmation Hearing Database, which contains information about every question and answer at every confirmation hearing from 1939 through 2010, to determine what they label a nominee’s “responsiveness ratio.” (They also incorporated into that dataset information from Gorsuch’s hearing.) The responsiveness ratio is the number of questions a nominee refused to answer on the basis of the so-called Ginsburg Rule compared to the number of questions about doctrine and precedent that the nominee answered. They then ranked all the nominees on this metric to see which ones responded significantly more often than not. They also broke down the areas and issues on which Ginsburg and Gorsuch, respectively, were responsive and on which issues they held back.

Using these metrics, Collins and Ringhand found that Ginsburg refused to respond approximately 10 percent of time — a higher rate than some recent nominees (such as John Roberts, at 6.6 percent), though lower than others (such as William Rehnquist, at 12.2 percent). But she gave firm responses 15.44 percent of the time, putting her at a healthy responsiveness ratio of +5.08. In contrast, Gorsuch asserted the privilege 6.6 percent of the time, but very rarely gave firm answers to any question about doctrine or precedent, including direct questions about the validity of cases such as Brown v. Board of Education and even Marbury v. Madison (though later in his hearing he agreed that case was correctly decided). His response rate was only 0.75 percent, leading his responsiveness ratio to be -5.91, far below the norm set over the last few decades.

Collins and Ringhand are disturbed by Gorsuch’s refusal to affirm even longstanding and well accepted Supreme Court precedent. They fear that if nominees stop taking any positions on previous Supreme Court precedent — even those concerning uncontroversial issues unlikely to come back before the court — the confirmation hearings will lose their value. The nation will also lose an opportunity to determine which previously disputed Supreme Court precedents have become an accepted part of the constitutional canon, and which are still up for debate.

In conclusion, they argue that the future nominee should follow what they call the “Ginsburg Rules,” with an emphasis on the plural. That is, the nominee can and should assert a privilege not to respond to questions about cases or issues that remain controversial, but should also take care to give clear answers to questions about cases that are now accepted as part of the constitutional canon.

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Good Behaviour #6: “The Drift”

Good Behaviour #6: “The Drift”Just how political are Supreme Court justices, and what can we learn from data? In this episode, the latest installment of our “Good Behaviour” series, we talk with Professor Lee Epstein of Washington University in St. Louis, the leading expert on the empirical analysis of the Supreme Court. She helps us think through Justice Anthony […]

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Good Behaviour #6: “The Drift”

Just how political are Supreme Court justices, and what can we learn from data? In this episode, the latest installment of our “Good Behaviour” series, we talk with Professor Lee Epstein of Washington University in St. Louis, the leading expert on the empirical analysis of the Supreme Court. She helps us think through Justice Anthony Kennedy’s legacy, what his retirement means for Chief Justice John Roberts and how his replacement might change the law.

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Voting rights in Justice Kennedy’s Constitution

Voting rights in Justice Kennedy’s ConstitutionEdward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and the director of Election Law @ Moritz at The Ohio State University Moritz College of Law. Justice Anthony Kennedy’s jurisprudence on voting rights must be understood in the context of his overall constitutional philosophy. While certainly appreciative of the role […]

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Voting rights in Justice Kennedy’s Constitution

Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and the director of Election Law @ Moritz at The Ohio State University Moritz College of Law.

Justice Anthony Kennedy’s jurisprudence on voting rights must be understood in the context of his overall constitutional philosophy. While certainly appreciative of the role that democratic elections play as part of the republican form of government established by the Constitution — see, for example, his concurrences in U.S. Term Limits, Inc. v. Thorton (1996) and Cook v. Gralike (2001) — Kennedy did not view voting rights as having a paramount status within the pantheon of constitutional rights.

Nor did Kennedy consider the protection of voting rights as legitimating the rest of the Constitution. Rather, he saw voting rights as important insofar as they were part of the Constitution. For him, it was the priority of the Constitution itself that gave voting rights their significance. The hierarchy of authority, as he saw it, ran from the Constitution to democracy, not the other way around.

Justice Kennedy in 2014 announces plurality opinion in Schuette v. Coalition to Defend Affirmative Action (Art Lien)

We can see this philosophy at work in Kennedy’s 2013 concurrence in Arizona v. Inter Tribal Council, a case about the pre-emptive effect of congressional regulation under the elections clause of Article I, Section 4. Ordinarily, the Supreme Court hesitates before finding that a federal statute pre-empts state law, and this general hesitation has been doctrinally formalized as a “presumption against pre-emption.” Writing the opinion for the court, however, Justice Antonin Scalia construed the distinctive language of the elections clause concerning the interplay of state and federal power over the “Times, Places, and Manner” of congressional elections to mean that this ordinary presumption against pre-emption does not apply in the specific context of the elections clause. Although Kennedy agreed with the court’s bottom-line finding of pre-emption in the particular case, he balked at Scalia’s characterization of congressional regulation under the elections clause as being any different from commerce clause regulation or the exercise of any other congressional power granted by the Constitution. “There is no sound basis for the Court to rule,” Kennedy argued, “that there exists a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending on which power Congress has exercised.” The need to protect state sovereignty from unduly expansive pre-emption, he continued, “is the same regardless of the power Congress invokes, whether it is, say, the commerce clause, the war power, the bankruptcy power, or the power to regulate federal elections under Article I, § 4.”

An even more elaborate explanation of the subordinate role that voting rights played in Kennedy’s overall constitutional jurisprudence is found in his 2014 plurality opinion in Schuette v. Coalition to Defend Affirmative Action. That case involved a Michigan constitutional amendment, adopted as a ballot measure, that banned “preferential treatment” on the basis of race. The Michigan measure was challenged as violating the federal equal protection clause, and the court rejected that challenge on the ground that the citizens of Michigan were entitled democratically to choose whether or not they wanted to adopt affirmative action as the state’s public policy. In upholding the “exercise of [the Michigan citizenry’s] democratic power,” Kennedy was careful to cabin this democratic authority within a general account of constitutional rights that prioritized personal freedom over collective self-government:

The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, a wrongful invasion of the home, or punishing a protester whose views offend others, and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.

This passage shows clearly that, for Kennedy, freedom comes first and democracy second, and that the purpose of democracy is to preserve and promote personal liberty.

In this respect, Kennedy’s constitutional philosophy is almost exactly opposite to the one articulated most famously by John Hart Ely. In his influential book “Democracy and Distrust,” Ely argued that the court should prioritize the protection of voting rights, so that citizens themselves can decide at the ballot box what personal liberties and freedoms they wish the law to safeguard. Ely argued also that the jurisprudence of the Warren court reflected this “representation-reinforcing” priority for the exercise of the court’s power to invalidate legislation. Whether or not Ely accurately characterized the Warren court’s philosophy, it is evident that the court did not follow this philosophy during the era in which Kennedy effectively controlled the direction of the court as its median justice.

Kennedy’s jurisprudential subordination of voting rights to other constitutional values explains some of his most significant decisions in the area of election law. Citizens United v. Federal Election Commission, for example, which in 2010 recognized the right of corporations to spend unlimited amounts of shareholder equity on electioneering, reflects a libertarian preference for the unfettered freedom of corporations to use their wealth as they wish over the capacity of the electorate to deliberate about how to govern their society. Likewise, Kennedy in 2000 wrote separately in California Democratic Party v. Jones to emphasize the First Amendment right of political parties to control primary elections, even at the expense of an electoral system designed to improve the ability of voters to make choices among the various candidates competing to hold office. Similarly, Kennedy’s crucial fifth vote for the 2013 majority opinion in Shelby County v. Holder, which nullified an historically crucial component of the Voting Rights Act, is best understood as reflecting his view that the power of Congress to protect voting rights is limited by the more fundamental constitutional commitment to federalism, including the proposition that the states themselves have a right to equal treatment by Congress.

Indeed, Kennedy’s most significant voting-rights decisions came in the context of racial discrimination with respect to elections, and these decisions tended to reflect his prioritization of racial equality as a constitutional commitment, rather than a prioritization of the right to vote itself. Emblematic is Rice v. Cayetano, in which Kennedy wrote the court’s opinion invalidating a Hawaii law that permitted only those of Hawaiian ancestry to vote for officials responsible for administering aid programs for native Hawaiians. In reaching this result, Kennedy described the 15th Amendment as entailing a “race neutrality command” more fundamental than the “one person, one vote” principle of the 14th Amendment. His multiple opinions for the court concerning the concept of “racial gerrymandering,” culminating last year in  Bethune-Hill v. Virginia State Board of Elections, demonstrate his longstanding desire to purge the political process of improper reliance on race as a basis of legislation.

With respect to partisan gerrymandering, Kennedy famously lacked the surefootedness that he displayed in the adjacent field of racial gerrymandering. This contrast, too, can be traced to his overall constitutional jurisprudence and the subordinate role of democracy in it. Kennedy’s commitment to race neutrality guided him in the race-based redistricting context. But he had no equivalent lodestar for the problem of excessive partisanship in redistricting. He was hoping, as he fervently expressed in 2004 in Vieth v. Jubelirer, that he would find an answer in his overall understanding of how the First Amendment protects freedom of political association. But the answer never came, in large part because the litigants who challenged partisan gerrymandering conceived of it as a defect in the public operation of democracy itself, not as an affront to private First Amendment freedoms. The plaintiffs, including in the recent fizzle of this term’s Gill v. Whitford, were never on the same constitutional wavelength as Kennedy.

A Supreme Court committed to the “representation-reinforcing” philosophy of John Hart Ely would not have struggled with the topic of partisan gerrymandering in the way that Kennedy did. An Ely-influenced court would have ruled partisan gerrymandering an unconstitutional distortion of the democratic process, preventing the electorate from asserting its will as an essential exercise of self-government. The ongoing legitimacy of the Constitution itself, from an Ely-influenced perspective, would necessitate the judicial elimination of excessive partisan gerrymandering as an overriding imperative. But fundamentally Kennedy was not an Ely-influenced jurist, and his inability to solve the problem of partisan gerrymandering — along with the rest of his voting-rights jurisprudence — reflects this most basic fact.

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Justice Kennedy, abortion and the legacy of a third choice

Justice Kennedy, abortion and the legacy of a third choiceSherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. When I clerked for Justice Harry Blackmun in 1992, his practice was to have breakfast with his law clerks every morning. One day, after we sat down to eat, the justice handed me a letter and asked me to […]

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Justice Kennedy, abortion and the legacy of a third choice

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School.

When I clerked for Justice Harry Blackmun in 1992, his practice was to have breakfast with his law clerks every morning. One day, after we sat down to eat, the justice handed me a letter and asked me to read it aloud.

I read the first paragraph and looked up uncertainly. The writer had said Blackmun was in the third trimester of his life, ready to enter the abortuary in the sky. I asked whether we should have the letter and writer assessed as a possible threat, but the justice shook his head. He seemed too relaxed for someone in whose home had long sat a chair with a bullet hole in it. A shooter had taken aim seconds after Dotty, Blackmun’s wife, had risen from her seat.

I have no idea whether Justice Anthony Kennedy received death threats for protecting reproductive choice. Either way, it could not have been easy for him. The easy option in 1992 was to join Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia and Clarence Thomas in overruling Roe v. Wade. Indeed, some of the language in the chief justice’s Planned Parenthood v. Casey dissent suggests that Rehnquist had originally written it as a majority, one that would almost certainly have included Kennedy.

Justice Kennedy during oral argument in Whole Woman’s Health v. Hellerstedt (Art Lien)

Blackmun and Kennedy shared more than a willingness to protect abortion rights. Both justices were, as Blackmun liked to say, someone’s “third choice.” President Richard Nixon had first nominated Clement Haynesworth and then G. Harrold Carswell, both of whom failed to ascend to the high court due to their questionable records on civil rights, along with other issues.

Before President Ronald Reagan selected Kennedy, he first nominated Robert Bork, whom the Senate rejected as ideologically extreme, and then Douglas Ginsburg, who asked to be withdrawn from consideration after admitting to marijuana use. Only then did Reagan turn to Kennedy, whom the Senate confirmed.

Just five years later, he disappointed social conservatives by co-authoring a three-justice opinion reaffirming the right to abortion. Liberal critics will point out that Casey provided substantially less protection for reproductive freedom than Roe v. Wade had 19 years earlier. The Casey joint opinion upheld all but one challenged Pennsylvania provision, the husband-notification requirement.

This criticism misses the fact that for Kennedy and the two other Republican appointees with whom he joined (Justices Sandra Day O’Connor and David Souter), the choice was not between Casey and Roe but between Casey and the Casey dissent. Even as they knew that more burdensome restrictions would now remain in place, contemporary abortion-rights supporters felt a palpable sense of relief when Casey had come out as it did.

In the years since then, Kennedy’s record on abortion-related matters has varied. A free speech libertarian, he consistently voted in favor of pro-life protesters and against laws and court orders aimed at protecting women seeking abortions from harassment. In Casey itself, echoing the pre-Casey opinion that Kennedy had joined in Rust v. Sullivan, the joint opinion upheld a requirement that doctors provide abortion patients with materials making factually questionable claims about fetal development.

Kennedy also sided with abortion opponents in two cases involving challenges to laws banning so-called “partial-birth abortions.” He first dissented from the court’s 2000 decision in Stenberg v. Carhart, which struck down Nebraska’s law while the dissenting Kennedy referred to doctors who perform abortions as “abortionists.”

After Justice Samuel Alito replaced O’Connor on the Supreme Court, Kennedy in 2007 turned his Stenberg dissent into law. Technically distinguishing rather than overruling the Nebraska precedent, Kennedy wrote an opinion for the court in Gonzales v. Carhart upholding a federal partial-birth abortion ban.

Kennedy’s two partial-birth opinions reflect his moral revulsion. Yet he did not draw a clear distinction between the abortion method that Nebraska and federal law forbade and those which they permitted. Nor did he explain how forbidding one kind of gruesome abortion but not another, sometimes less safe but equally gruesome kind, served the state’s interest in exhibiting respect for fetal life.

Kennedy’s opinion for the court in the federal case suggested that the law could advance an interest in informed choice. Kennedy speculated about the likely impact on women of undergoing a procedure in which the provider kills the fetus after it has partially exited the womb. He said: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.” The acknowledged lack of reliable data seems to undercut this conclusion.

And even if women did experience abortion-regret syndrome, how would a ban on only one particular method prevent such a syndrome’s onset? According to Kennedy, doctors may be reluctant to share the gory details of the procedure with patients. He then added the following:

The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

Kennedy’s feelings about the abortions he describes are plain. He found the prohibited method barbaric and was willing to assume that it would cause regret, depression and misery. But even if all of his factual assumptions were correct, his response — the wish to ensure that “so grave a choice is well informed” — had little connection to a law prohibiting the procedure altogether. Yet he apparently concluded that banning “partial-birth” abortions served to inform patients about the procedure.

In addition, Kennedy’s factual guesses about the impact of abortion on a woman turned out not to reflect the whole story. Many women have no regrets, and the data fail to support a regret syndrome. Some of those who felt no regret have contributed to a controversial website, “Shout Your Abortion.”

Included among women who wrote for this site were those who declared that that they were grateful that they could terminate their pregnancies. Conversely, women sometimes regret the decision to have the child, as did a number of those who surrendered their babies in the era before Roe v. Wade. And some women regret having and keeping their children, though for obvious reasons, they tend not to “shout” about that.

At some point, many abortion-rights activists and lawyers began to lose faith in Kennedy, concluding that he was prepared to uphold virtually any abortion restriction that came his way. Then the court decided Whole Women’s Health v. Hellerstedt. The 5-4 ruling invalidated two provisions of a Texas statute mandating that abortion providers meet onerous requirements that could shutter a significant number of the state’s clinics without conferring a measurable health benefit upon women.

Kennedy joined Justice Stephen Breyer’s majority opinion finding that the Texas law imposed an undue burden on the abortion right. The ruling was important, because other states had adopted similar provisions in order to make abortions extremely difficult to obtain while leaving undisturbed the procedure’s technical status as legal.

In announcing that the court would weigh a state’s proffered interest against the burden that a law imposed on a woman’s choice, Whole Woman’s Health strengthened and usefully clarified the test that the Casey joint opinion had adopted nearly a quarter of a century earlier. That clarity might prove short-lived, however, because a post-Kennedy court is very likely to cut back on and perhaps eliminate the abortion right.

Even before Kennedy announced his retirement, the last week of the term brought another development from his chambers that negatively affected abortion rights. Writing for the court in NIFLA v. Becerra, Thomas, joined by Chief Justice John Roberts, Kennedy, Alito and Justice Neil Gorsuch, said that California could not compel “crisis pregnancy centers” – anti-abortion operations —  to inform patients about available, government-subsidized abortion services. California’s law requiring disclosure violated the centers’ First Amendment right not to speak, said the 5-4 majority.

The NIFLA court did not accept California’s argument that disclosure might be necessary because crisis pregnancy centers regularly draw pregnant women who want an abortion and mistakenly believe that they can get one there. On the assumption that pregnant women have visited the centers out of a genuine interest in their services, the court regarded California — in Kennedy’s words in a concurrence — as an “authoritarian government” attempting to compel abortion-friendly statements from pro-life workers.

Kennedy did not explain the apparent tension between his willingness to view California’s disclosure requirements as an authoritarian effort by the government to compel unwelcome speech by crisis pregnancy centers and other decisions he joined that upheld laws requiring speech by abortion providers.

In this and other reproductive rights cases, Kennedy disappointed the pro-choice community. Blackmun was at least as disappointed in Casey as pro-choice advocates were, focusing on the chasm between the Roe that he had authored and the far slimmer abortion right announced later. But Kennedy was never going to be Blackmun on abortion; for Kennedy, Casey was a big step, one on which he followed through with grace in Whole Women’s Health. Blackmun would have approved.

With Kennedy leaving the Supreme Court, these decisions and the abortion right that they guarantee may vanish in an instant or by a thousand cuts. Either way, we will learn just how pro-choice Kennedy was and just how grateful abortion-rights advocates should have been for the additional and unexpected quarter century of choice that he granted American women.

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Potential nominee profile: Amy Coney Barrett

Potential nominee profile: Amy Coney BarrettIn November 2017, President Donald Trump released a revised list of potential Supreme Court nominees. The November 2017 list was an expanded version of two earlier lists, announced during the 2016 presidential campaign, from which then-candidate Trump pledged, if elected, to pick a successor to the late Justice Antonin Scalia, who died on February 13, […]

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Potential nominee profile: Amy Coney Barrett

Credit: University of Notre Dame

In November 2017, President Donald Trump released a revised list of potential Supreme Court nominees. The November 2017 list was an expanded version of two earlier lists, announced during the 2016 presidential campaign, from which then-candidate Trump pledged, if elected, to pick a successor to the late Justice Antonin Scalia, who died on February 13, 2016. First on the new list – because it was in alphabetical order – was Amy Coney Barrett, a Notre Dame law professor (and former Scalia clerk) who had recently been confirmed to a seat on the U.S. Court of Appeals for the 7th Circuit. Barrett’s confirmation hearings had received considerable attention after Democrats on the Senate Judiciary Committee – most notably, Senator Dianne Feinstein of California – grilled her on the role of her Catholic faith in judging. Feinstein’s criticism did not stop Barrett from being confirmed, and since then there has been speculation that it may have in fact strengthened her case to fill the seat that will be vacated by the retirement of Justice Anthony Kennedy.

The 46-year-old Barrett grew up in Metrairie, Louisiana, a suburb of New Orleans, and attended St. Mary’s Dominican High School, a Catholic girls’ school in New Orleans. Barrett graduated magna cum laude from Rhodes College, a liberal arts college in Tennessee affiliated with the Presbyterian Church, in 1994. (Other high-profile alumni of the school include Abe Fortas, who served as a justice on the Supreme Court from 1965 to 1969 and Claudia Kennedy, the first woman to become a three-star general in the U.S. Army.) At Rhodes, she was a member of Phi Beta Kappa and was also recognized as the most outstanding English major and for having the best senior thesis.

After graduating from Rhodes, Barrett went to law school at Notre Dame on a full-tuition scholarship. She excelled there as well: She graduated summa cum laude in 1997, received awards for having the best exams in 10 of her courses and served as executive editor of the school’s law review.

Barrett then held two high-profile conservative clerkships, first with Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit, from 1997-1998 then with the late Justice Antonin Scalia, from 1998-1999. After leaving her Supreme Court clerkship, she spent a year practicing law at Miller, Cassidy, Larroca & Lewin, a prestigious Washington D.C. litigation boutique that also claims former U.S. solicitor general Seth Waxman, former deputy attorney general Jamie Gorelick, and two regular contributors to this blog – John Elwood and editor Edith Roberts – as alums. Barrett went to Baker Botts, a Texas-based firm, after Miller Cassidy merged with the larger law firm, in 2000 and spent another year there before leaving for academia. To the chagrin of Democratic senators during her confirmation process, Barrett was only able to recall a few of the cases on which she had worked, and she indicated that she had not argued any appeals while in private practice.

Barrett spent a year as a law and economics fellow at George Washington University before heading to her alma mater, Notre Dame, in 2002 to teach federal courts, constitutional law and statutory interpretation. Barrett was named a professor of law at the school in 2010; four years later, she became the Diane and M.O. Research Chair of Law. Barrett twice received a “distinguished professor of the year” award, in 2010 and 2016.

While at Notre Dame, Barrett signed a 2012 “statement of protest” condemning the accommodation that the Obama administration created for religious employers who were subject to the ACA’s “birth control” mandate. The statement lamented that the accommodation “changes nothing of moral substance and fails to remove the assault on individual liberty and the rights of conscience which gave rise to the controversy.” Barrett was also a member of the Federalist Society, the conservative legal group, from 2005 to 2006 and then again from 2014 to 2017. In response to written questions from Democratic senators during her 7th Circuit confirmation process, Barrett indicated that she had rejoined the group because it gave her “the opportunity to speak to groups of interested, engaged students on topics of mutual interest,” but she added that she had never attended the group’s national convention.

The best insight into how Barrett might rule as a Supreme Court justice likely comes from her academic scholarship, an area in which she has been prolific. The Washington Post reported on Saturday that Trump wants a nominee with a “portfolio of solid academic writing,” and Barrett (perhaps more than any other nominee on the reported shortlist) fits that bill to a tee. Several of those articles, however, drew fire at Barrett’s 7th Circuit confirmation hearing, with Democratic senators suggesting that they indicate that Barrett would be influenced by her Catholic faith, particularly on the question of abortion.

Barrett co-wrote her first law review article, Catholic Judges in Capital Cases, with Notre Dame law professor John Garvey (now the president of the Catholic University of America); the article was published in the Marquette Law Review in 1998, shortly after her graduation from Notre Dame. It explored the effect of the Catholic Church’s teachings on the death penalty on federal judges, but it also used the church’s teachings on abortion and euthanasia as a comparison point, describing the prohibitions on abortion and euthanasia as “absolute” because they “take away innocent life.” The article also noted that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States”; Barrett and Garvey observed that they did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

When questioned about the article at her 7th Circuit confirmation hearing, Barrett stressed that she did not believe it was “lawful for a judge to impose  personal opinions, from whatever source they derive, upon the law,” and she pledged that her views on abortion “or any other question will have no bearing on the discharge of my duties as a judge.” She acknowledged that, if she were instead being nominated to serve as a federal trial judge, she “would not enter an order of execution,” but she assured senators that she did not intend “as a blanket matter to recuse myself in capital cases if I am confirmed” and added that she had “fully participated in advising Justice Scalia in capital cases as a law clerk.”

Barrett’s responses did not mollify Feinstein, who suggested that Barrett had a “long history of believing that religious beliefs should prevail.” In a widely reported exchange, Feinstein told Barrett that, when “you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

In another article, Stare Decisis and Due Process, published in the University of Colorado Law Review, Barrett discussed the concept of stare decisis – a legal doctrine that generally requires courts to follow existing precedent, even if they might believe that it is wrong. Barrett wrote that courts and commentators “have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books”; in a footnote, she cited (among other things) Planned Parenthood v. Casey, the 1992 decision reaffirming Roe v. Wade. Barrett’s detractors characterized the statement as criticism of Roe v. Wade itself, while supporters such as conservative legal activist Ed Whelan countered that the statement did not reflect Barrett’s views on Roe itself, but instead was just an example of competing opinions on the reliance interests in Roe.

Despite the criticism from Democrats, Barrett garnered bipartisan support at her 2017 confirmation hearing. A group of 450 former students signed a letter to the Senate Judiciary Committee, telling senators that their support was “driven not by politics, but by the belief that Professor Barrett is supremely qualified.” And she had the unanimous support of her 49 Notre Dame colleagues, who wrote that they had a “wide range of political views” but were “united however in our judgment about Amy.”

After Barrett’s confirmation hearing but before the Senate voted on her nomination, The New York Times reported that Barrett was a member of a group called People of Praise.” Group members, the Times indicated, “swear a lifelong oath of loyalty to one another, and are assigned and accountable to a personal adviser.” Moreover, the Times added, the group “teaches that husbands are the heads of their wives and should take authority for their family.” And legal experts questioned whether such oaths “could raise legitimate questions about a judicial nominee’s independence and impartiality.”

Barrett declined the Times’ request for an interview about People of Praise, whose website describes the group as an “ecumenical, charismatic, covenant community” modeled on the “first Christian community.” “Freedom of conscience,” the website says, “is a key to our diversity.” Slate recently interviewed the group’s leader, a physics and engineering professor at Notre Dame, who explained that members of the group “often make an effort to live near one another” and agree to donate 5% of their income to the group.

Barrett was confirmed to the 7th Circuit by a vote of 55 to 43. Three Democratic senators – her home state senator, Joe Donnelly, Virginia’s Tim Kaine, and Joe Manchin of West Virginia – crossed party lines to vote for her, while two Democratic senators (Claire McCaskill of Missouri and Robert Menendez of New Jersey) did not vote.

Because Barrett has spent just eight months on the 7th Circuit, she has compiled a relatively small body of opinions, most of them fairly uncontroversial. One case that would almost certainly draw attention if she were nominated came shortly after she took the bench: EEOC v. AutoZone, in which the federal government asked the full court of appeals to reconsider a ruling against the EEOC in its lawsuit against AutoZone, an auto parts store. The EEOC had argued that the store violated Title VII of the Civil Rights Act, which bars employees from segregating or classifying employees based on race, when it used race as a determining factor in assigning employees to different stores – for example, sending African-American employees to stores in heavily African-American neighborhoods. A three-judge panel (that did not include Barrett) ruled for AutoZone; Barrett joined four of her colleagues in voting to deny rehearing by the full court of appeals.

Three judges – Chief Judge Diane Wood and Judges Ilana Diamond Rovner and David Hamilton – would have granted rehearing en banc. Those three also had strong words in the dissenting opinion that they filed. They alleged that, under “the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII as long as the ‘separate’ facilities really are ‘equal’” – a conclusion, they continued, that is “contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as Brown v. Board of Education.”

Another high-profile case before the 7th Circuit involves the battle over “sanctuary cities” – jurisdictions that limit cooperation with federal immigration authorities. In June, the full court granted the federal government’s petition to reconsider part of a three-judge panel’s ruling that left in place a nationwide injunction against the federal government’s policy of withholding law-enforcement grants from such jurisdictions. The announcement means that the federal government can enforce the policy only against the city of Chicago, the plaintiff in the case. There is no way to know how Barrett voted on the government’s request, as the court’s order indicated only that a “majority of the judges participating in the en banc rehearing of this case” had voted in favor of the stay that the government had sought.

Barrett was also part of a panel that tackled another contentious issue in environmental and property law, as developers and farmers (among others) have contended that the federal government has gone too far: What constitutes the “waters of the United States” for purposes of determining whether the federal Clean Water Act applies to wetlands? In June of this year, Barrett joined a ruling written by Judge Amy St. Eve, also a Trump appointee to the 7th Circuit, that sent the case of an Illinois developer back to the U.S. Army Corps of Engineers for reconsideration. The Corps had found that the wetlands at issue – which were approximately 11 miles away from the nearest navigable river – were “waters of the United States,” but the panel (expressing some frustration) concluded that the determination by the Corps was not backed by “substantial evidence in the record” even though the “dispute has consumed almost as many years as the Warmke wetlands have acres.”

Barrett joined another ruling by St. Eve in the case of Kishunda Jones, who had been designated by her mother, Linda, as the beneficiary of her pension. When Linda, who suffered from a recurring form of cancer, died three days before her pension was supposed to begin, the committee that oversaw Linda’s pension rejected Kishunda’s request to receive the pension. It explained that, when a participant dies before her pension begins, only surviving spouses can receive a benefit from the pension. The panel agreed with the district court that the “facts of this case are undoubtedly unfortunate,” but it nonetheless upheld the district court’s ruling in favor of the pension fund on the ground that its decision was neither arbitrary nor capricious – all that the law requires in such a scenario.

In Schmidt v. Foster, Barrett dissented from the panel’s ruling in favor of a Wisconsin man who admitted that he had shot his wife seven times, killing her in their driveway. Scott Schmidt argued that he had been provoked, which would make his crime second-degree, rather than first-degree, homicide; the trial judge reviewed that claim at a pretrial hearing that prosecutors did not attend, and at which Schmidt’s attorney was not allowed to speak. The judge rejected Schmidt’s claim of provocation, and Schmidt was convicted of first-degree homicide and sentenced to life in prison. When Schmidt sought to overturn his conviction in federal court, the panel agreed that Schmidt had been denied his 6th Amendment right to counsel, and the court of appeals sent the case back to the lower court.

Barrett disagreed with her colleagues, in a separate opinion that began by  emphasizing that the standard for federal postconviction relief is “intentionally difficult because federal habeas review of state convictions” interferes with the states’ efforts to enforce their own laws. In this case, she contended, the state court’s decision rejecting Schmidt’s 6th Amendment claim could not have been “contrary to” or “an unreasonable application of” clearly established federal law (the requirement for relief in federal court) because the Supreme Court has never addressed a claim that a defendant has a right to counsel in a pretrial hearing like the one at issue in this case. While acknowledging that “[p]erhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case,” she warned that federal law “precludes us from disturbing a state court’s judgment on the ground that a state court decided an open question differently than we would—or, for that matter, differently than we think the [Supreme] Court would.”

In Akin v. Berryhill, Barrett joined a per curiam (that is, unsigned) decision in favor of a woman whose application for Social Security disability benefits had been denied by an administrative law judge (ALJ). The panel agreed with the woman, Rebecca Akin, that the ALJ had incorrectly “played doctor” by interpreting her MRI results on his own, and it instructed the ALJ to take another look at his determination that Akin was not credible. The panel indicated that it was “troubled by the ALJ’s purported use of objective medical evidence to discredit Akin’s complaints of disabling pain,” noting that fibromyalgia (one of Akin’s ailments) “cannot be evaluated or ruled out by using objective tests”; it also added that, among other things, the ALJ should not have discredited Akin’s choice to go with a more conservative course of treatment when she explained that “she was afraid of needles and that she wanted to wait until her children finished school before trying more invasive treatment.”

Barrett has been married for over 18 years to Jesse Barrett, who serves as an Assistant U.S. Attorney for the Northern District of Indiana. They have seven children (only two fewer than her old boss, Scalia). At her confirmation hearing, Barrett introduced three of her daughters, who were sitting behind her. She told senators that one daughter, then-13-year-old Vivian, was adopted from Haiti at the age of 14 months, weighing just 11 pounds; she was so weak at the time that the Barretts were told she might never walk normally or talk. The Barretts adopted a second child, Jon Peter, from Haiti after the 2011 earthquake, and Barrett described their youngest child, Benjamin, as having special needs that “present unique challenges for all of us.” Since becoming a judge, Barrett has reportedly commuted from her home in South Bend to Chicago, roughly 100 miles away, a few days a week; if she is nominated, she would likely move her family to the Washington, D.C., area and trade that commute for a shorter one to One First Street, N.E.

The post Potential nominee profile: Amy Coney Barrett appeared first on SCOTUSblog.

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An immigration legacy at odds with Justice Kennedy’s animating principles

An immigration legacy at odds with Justice Kennedy’s animating principlesPratheepan Gulasekaram is a professor of law at Santa Clara University. In his reflection on Justice Anthony Kennedy, Harvard Law School professor Jack Goldsmith suggests that three principles animated Kennedy’s landmark opinions: dignity, capacious liberty from government interference and a robust conception of judicial power. Judging from his opinions and votes in immigration cases, however, […]

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An immigration legacy at odds with Justice Kennedy’s animating principles

Pratheepan Gulasekaram is a professor of law at Santa Clara University.

In his reflection on Justice Anthony Kennedy, Harvard Law School professor Jack Goldsmith suggests that three principles animated Kennedy’s landmark opinions: dignity, capacious liberty from government interference and a robust conception of judicial power. Judging from his opinions and votes in immigration cases, however, Kennedy was an unreliable adherent to those principles, oftentimes disregarding the dignity and due process claims of noncitizens, and pleading for a diminished judicial role in critical immigration matters. This legacy was cemented by Kennedy’s last writing as a justice of the Supreme Court in Trump v. Hawaii. There, his final concurrence admonished the president for disregarding constitutional limits, while still casting the critical fifth vote to leave in force a presidential directive that his concurrence hinted was designed to make good on a promise to ban Muslims from the country.

Justice Kennedy questions lawyer during arguments in Trump v. Hawaii (Art Lien)

At first blush, Kennedy’s Hawaii opinion may seem shocking. Outside the immigration context, he was vigilant when federal, state and local governments acted in bad faith against politically unpopular groups. He famously authored Windsor v. United States, Romer v. Evans and Church of Lukumi Babalu Aye v. City of Hialeah, all cases in which he discounted the government’s justifications for the laws at issue and unearthed the unconstitutional animus that lay underneath.

It is equally true that Kennedy often rejected a shrinking role for the federal judiciary, even when dealing with the executive branch, or when national security concerns loomed large. Kennedy joined the five-justice majority in I.N.S. v. St. Cyr, which preserved habeas rights for noncitizens in the face of Congress’ attempt to strip federal court jurisdiction over immigration cases. He concurred and joined Justice John Paul Stevens’ five-justice majority in Hamdan v. Rumsfeld, stopping the George W. Bush administration’s initial attempt to use military tribunals to try enemy combatants from Guantanamo Bay. Later, in Boumediene v. Bush, Kennedy’s opinion for a 5-4 majority helped establish the limits on the political branches in their attempts to eliminate the habeas rights of alleged enemy combatants detained at Guantanamo Bay.

Yet, absent in Kennedy’s assessment of Trump’s immigration ban were his demonstrated ability to ferret out unconstitutional motives targeting disfavored minorities and his record of preserving access to federal courts to curb political branch excesses. Considered with his critical “swing” votes in other significant immigration cases, Kennedy’s jurisprudence reflects an inclination to ensure a judicial forum in which to present constitutional claims, only to deny any substantive relief to the noncitizen before the court. In retrospect then, Kennedy’s opinion in Hawaii should have been foreseeable, as it tracked his approach in a number of cases in which he shied away from meaningful judicial oversight over the federal government’s control and treatment of noncitizens.

In some cases, Kennedy appeared willing to acknowledge the necessity of invoking constitutional safeguards, but seemingly diluted those protections because they emerged in the immigration context. This equivocation is evident in cases like Verdugo-Urquidez v. United States, Nguyen v. I.N.S. and Kerry v. Din.

In Verdugo-Urquidez, a plurality of the court held that the Fourth Amendment did not extend to federal agents’ search and seizure of a noncitizen criminal defendant’s property in Mexico. While the plurality read the term “the people” protected by several provisions of Bill of Rights as stringently circumscribing the class protected by those provisions, Kennedy’s concurrence instead suggested that “the people” emphasized the importance of the right, rather than the category of persons protected. Although he rejected the plurality’s attempt to exclude noncitizens from constitutional protection, he nevertheless provided the fifth vote to deny the criminal defendant Fourth Amendment guarantees.

That pattern continued in Nguyen, in which Kennedy’s opinion for a five-justice majority upheld a distinction in the Immigration and Nationality Act that makes it significantly more difficult for an unwed father to pass on citizenship to his child than it does for an unwed mother. His opinion offered the possibility of normalizing constitutional standards for immigration laws, which the Supreme Court has resisted reviewing under mainstream due process and equal protection principles, when he purported to apply the intermediate scrutiny standard to evaluate the INA’s gender-based classification. Yet, Kennedy’s opinion invoked outdated stereotypes about men and women and their relationship to their offspring to come to its conclusion. Last year, though, in Sessions v. Morales-Santana, Kennedy joined a seven-justice majority that struck down a different INA provision that also  discriminated against unwed fathers’ ability to transmit citizenship, signing on to an opinion by Justice Ruth Bader Ginsburg that all but discarded Kennedy’s prior reasoning. Nevertheless, his opinion in Nguyen still stands, and for several years has ensured that equality principles play weaker in the immigration and family context than they do in other regulatory areas.

Similarly, in Din, the court denied relief to a U.S. citizen who sought information from the government as to why her spouse had been denied a visa. Kennedy concurred separately to note that a plurality of the court had needlessly denied the noncitizen’s ability to raise a due process claim. But again, this rhetorical gesture proved empty. Ultimately, in providing the critical fifth vote yet again, Kennedy argued that the bare minimum of governmental response – a citation to the code section used to deny the visa – would suffice to meet whatever constitutional process rights the noncitizen, or his citizen-spouse, was due. His rulings in both Din and Nguyen, both of which denied close family members the full legal benefits of their relationships and threaten to separate spouses and children, are especially surprising in light of Kennedy’s most well-known opinion. In Obergefell v. Hodges, which established a constitutional right to marriage equality, Kennedy’s majority opinion sought to protect intact family units, and rejected the idea of forcing families to relocate in order to remain together.

In addition to his tendency to invoke constitutional standards, only to deny substantive relief, Kennedy also voted to justify and extend the use of immigration detention. These decisions conflict with his commitment to the inherent dignity of personhood, a concept he exalted in other contexts.  Kennedy’s views on the constitutional rights of noncitizens in immigration detention came into focus with his dissent in Zadvydas v. Davis. In that 2001 case, a 5-4 majority of the court held that the INA provision allowing for detention of deportable noncitizens whom the government could not actually remove had to be read to include a presumptive six-month time limit so as to avoid the grave constitutional concerns raised by indefinite detention. Kennedy critiqued the majority for “rushing to substitute a judicial judgment for the Executive’s discretion,” and argued that the protections already afforded detainees in removal proceedings were sufficient. Two years later, with the events of 9/11 intervening between the cases, Kennedy was able to vindicate aspects of his Zadydas dissent when he provided the fifth vote in Demore v. Kim. There, the majority upheld the prolonged detention of those in removal proceedings, allowing noncitizens to be locked up for years as their removal cases were heard. Kennedy’s concurring opinion joined the majority in full. He wrote separately only to emphasize that he might consider a constitutional challenge when an immigrant’s detention became unreasonable or unjustified.

Kennedy’s opinions leave significant uncertainty as to what set of facts, if any, might have moved him to find a due process violation. Perhaps more importantly, it was later revealed that the government’s representations to the court about average length of a noncitizen’s incarceration – statistics the court and Kennedy in particular relied upon to reject the  due process claim – were wrong. Despite this revelation, Kennedy left no doubt about his position on immigrant incarceration when he cast his vote in Jennings v. Rodriguez earlier this term. There, siding with another five-justice majority, he found no constitutional problems with reading INA provisions to justify the prolonged imprisonment of several classes of noncitizens without individualized bond hearings, including those with no criminal background and those seeking asylum.

It is true that Kennedy’s opinions at least recognized the possibility of noncitizens accessing federal courts to present their constitutional claims. In Din, for example, his concurrence held out the theoretical prospect that in some instances, the government’s motives in denying entry should be subject to more searching judicial review. Even in the detention context, his opinions ostensibly left open the chance that any particular individual’s incarceration might violate constitutional standards. Yet, read through the lens of his swan song in Hawaii, these past decisions seem to showcase Kennedy’s reluctance to vindicate substantive individual rights claims brought by noncitizens, rather than realistic opportunities for noncitizens to seek substantive relief. Moreover, his votes in the detention cases evince unwavering support of an expansive federal power over immigration detention.

Taken as a whole, Kennedy’s immigration jurisprudence demonstrates that his bold strides towards protecting the liberty and dignity of personhood were limited to some vulnerable minorities, but did not extend to persons covered by immigration laws and policies. His final concurrence in Hawaii, warning that this current president may have exercised discretion in a manner that violated the First Amendment but declining to check that discretion, seems to flow from Kennedy’s earlier immigration decisions. Yet, that result was not inevitable given his habeas and gay-rights jurisprudence. In the end, he was a reliable fifth vote for the conservative majority, fashioning an immigration jurisprudence that vindicated the government’s position against the claims of noncitizens.

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Empirical SCOTUS: The five frontrunners

Empirical SCOTUS: The five frontrunnersWith less than one week left until President Donald Trump announces his nominee to fill the second SCOTUS vacancy since he took office, not all names are getting equal attention. Trump indicated the other day that he has narrowed down his initial list to five finalists, including two women. Although all the names on this whittled-down list are not […]

The post Empirical SCOTUS: The five frontrunners appeared first on SCOTUSblog.

Empirical SCOTUS: The five frontrunners

With less than one week left until President Donald Trump announces his nominee to fill the second SCOTUS vacancy since he took office, not all names are getting equal attention. Trump indicated the other day that he has narrowed down his initial list to five finalists, including two women. Although all the names on this whittled-down list are not known, a few judges are seen as frontrunners. Almost all lists of potential nominees include Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, the judge whom Empirical SCOTUS identified in December as a likely nominee in the event of a vacancy. The other judge floating around many pundits’ predictions is Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit.

Even though the shortlist is not entirely clear, this post analyzes facets of five judges who are likely leading the way. These individuals include Kavanaugh and Barrett, along with Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit and Judges Amul Thapar and Raymond Kethledge from the U.S. Court of Appeals for the 6th Circuit. Kavanaugh and Kethledge both clerked for Justice Anthony Kennedy, as did the most recently confirmed justice — Justice Neil Gorsuch. If either becomes the next justice on the court, this would be the first time that any current or former Supreme Court justice had two former clerks later become justices. Of the remaining judges, Barrett clerked for Justice Antonin Scalia, Hardiman did not clerk and Thapar’s highest-level clerkship was for Judge Nathaniel Jones on the 6th Circuit.

Below is the birth year for each justice who joined the court after 1900, along with the birth years of the five frontrunners.

Click graph to enlarge.

Judicial experience

These potential nominees bring several unique characteristics to the table. To begin, two of these judges, Thapar and Hardiman, both previously worked at the district-court level (Hardiman in the Western District of Pennsylvania and Thapar in the Eastern District of Kentucky).

A Justices Dataset that includes all Supreme Court justices who joined the court after 1900 (derived from the Supreme Court Justices Database) shows that only four justices – Sonia Sotomayor, Charles Evans Whittaker, John Hessin Clarke and Edward Sanford – also previously worked as judges at the district-court level.

This lack of district-court experience is not the norm for federal judges. A second dataset, the Judges Dataset derived from the Federal Judicial Center’s Biographic Directory of Judges, shows that of all federal judges born after 1850, only 18 percent started out as non-district-court judges. The following figure shows the raw count data of where federal judges who did not first sit on a district court began their careers.

Click graph to enlarge.

The three judges among the frontrunners who did not first sit on district courts, Kavanaugh, Barrett and Kethledge, all began their judicial careers on federal courts of appeals.

Except for Justice Elena Kagan, all of the current Supreme Court justices previously served on one of the courts of appeals. Not only do justices tend to hail from courts of appeals generally, but they also tend to hail from particular courts of appeals. The next figure looks at the courts of appeals on which justices in the Justices Dataset sat before joining the Supreme Court.

Click graph to enlarge.

Three of the judges, Kavanaugh, Thapar and Kethledge, served on the top two courts in the figure — the 6th and D.C. Circuits.

Backgrounds

Not surprisingly, all of the frontrunners were nominated to courts of appeals by Republican presidents. Kethledge, Kavanaugh and Hardiman were nominated by George W. Bush, and Thapar and Barrett were nominated by Trump. The majority of judges in the Judges Dataset were initially nominated by Republican presidents as well.

Click graph to enlarge.

Across time, presidents have had varying opportunities to nominate federal judges. Trump is already a distinct player in this area. The following figure looks by appointing president at counts of judges appointed to their first federal judgeship based on data in the Judges Dataset.

Click graph to enlarge.

Two Democrats and two Republicans — Bill Clinton, Barack Obama, George W. Bush and Ronald Reagan — lead the pack with the most appointments. With 37 nominations for judges’ first federal judgeships, Trump has gained ground on those presidents in his first two years in office.

Geography is also an important background element for federal judges, because judges tend to come from specific geographic locales. The figure below shows the relative number of federal judges in the Judges Dataset who were born in the various states.

Click map to enlarge.

The top four states where most judges in this set were born are New York, Pennsylvania, California and Illinois. Of the frontrunners, Kavanaugh was born in Maryland, where between one and two percent of federal judges in the dataset were born; Kethledge was born in New Jersey, along with between 3 and 4 percent of the set; Thapar was born in Michigan, along with just under 3 percent of the dataset; Hardiman was born in Massachusetts, where close to 3 percent of the judges in the set were born; and Barrett was born in Louisiana, along with just under 3 percent of the Judges Dataset.

The majority of frontrunners fit the most common racial/gender demographic profile of federal judges in the Judges Dataset — white and male.

Click graph to enlarge. [Note: Several labels that categorized only one judge were removed]

The two frontrunners who buck this trend are Barrett, a woman, and Thapar, who is of Indian American decent.

Qualifications

The frontrunners are all recognized as top conservative minds on the federal judiciary. Each comes from a distinguished academic background, including a highly ranked law school, although none of them went to the most common law school of justices in the Justices Dataset — Harvard Law School.

Click graph to enlarge.

Kavanaugh went to the school that produced the second most judges in the set (Yale Law), Kethledge went to the fourth school on the list (Michigan Law), and Thapar went to Chief Justice Earl Warren’s alma mater (UC Berkeley Law). Barrett and Hardiman went to Notre Dame and Georgetown Law respectively, either of which would be a first for a Supreme Court justice.

All federal judges are rated by the American Bar Association based on their qualifications. The neutrality of this process has been under scrutiny over the past several years. Nonetheless, this is one of the measures of nominees reviewed by the senators prior to confirmation votes. Judges in the Judges Dataset received one of five ratings from the A.B.A. — exceptionally well-qualified, well-qualified, qualified, not qualified or not qualified by reason of age. The last figure shows this breakdown for the Judges Dataset.

Click graph to enlarge.

Of the frontrunners, Thapar and Hardiman both earned well-qualified ratings, while Kethledge and Barrett were voted well-qualified by a substantial majority and qualified by a minority of A.B.A. raters. Kavanaugh had the unusual experience of having his qualifications rating lowered from a majority well-qualified and minority qualified to a majority qualified and minority well-qualified. Several Republican members of Congress criticized this alteration as motivated by partisanship.

A few final notes

For the justices in the Justices Dataset the average time between nomination and a final vote in the Senate was 32 days, although that average time becomes greater if we curtail the sample to more recent nominations. The average hearing length for these justices was three days, although the maximum was 19 for Justice Louis Brandeis, and 14 of the justices had single-day hearings.

The context provided above is not intended to answer the question of which judge Trump will choose as the nominee. The comparisons are useful, though, in understanding ways we can distinguish among the candidates.

This post was originally published at Empirical SCOTUS.

The post Empirical SCOTUS: The five frontrunners appeared first on SCOTUSblog.

from http://www.scotusblog.com

Empirical SCOTUS: The five frontrunners

Empirical SCOTUS: The five frontrunnersWith less than one week left until President Donald Trump announces his nominee to fill the second SCOTUS vacancy since he took office, not all names are getting equal attention. Trump indicated the other day that he has narrowed down his initial list to five finalists, including two women. Although all the names on this whittled-down list are not […]

The post Empirical SCOTUS: The five frontrunners appeared first on SCOTUSblog.

Empirical SCOTUS: The five frontrunners

With less than one week left until President Donald Trump announces his nominee to fill the second SCOTUS vacancy since he took office, not all names are getting equal attention. Trump indicated the other day that he has narrowed down his initial list to five finalists, including two women. Although all the names on this whittled-down list are not known, a few judges are seen as frontrunners. Almost all lists of potential nominees include Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, the judge whom Empirical SCOTUS identified in December as a likely nominee in the event of a vacancy. The other judge floating around many pundits’ predictions is Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit.

Even though the shortlist is not entirely clear, this post analyzes facets of five judges who are likely leading the way. These individuals include Kavanaugh and Barrett, along with Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit and Judges Amul Thapar and Raymond Kethledge from the U.S. Court of Appeals for the 6th Circuit. Kavanaugh and Kethledge both clerked for Justice Anthony Kennedy, as did the most recently confirmed justice — Justice Neil Gorsuch. If either becomes the next justice on the court, this would be the first time that any current or former Supreme Court justice had two former clerks later become justices. Of the remaining judges, Barrett clerked for Justice Antonin Scalia, Hardiman did not clerk and Thapar’s highest-level clerkship was for Judge Nathaniel Jones on the 6th Circuit.

Below is the birth year for each justice who joined the court after 1900, along with the birth years of the five frontrunners.

Click graph to enlarge.

Judicial experience

These potential nominees bring several unique characteristics to the table. To begin, two of these judges, Thapar and Hardiman, both previously worked at the district-court level (Hardiman in the Western District of Pennsylvania and Thapar in the Eastern District of Kentucky).

A Justices Dataset that includes all Supreme Court justices who joined the court after 1900 (derived from the Supreme Court Justices Database) shows that only four justices – Sonia Sotomayor, Charles Evans Whittaker, John Hessin Clarke and Edward Sanford – also previously worked as judges at the district-court level.

This lack of district-court experience is not the norm for federal judges. A second dataset, the Judges Dataset derived from the Federal Judicial Center’s Biographic Directory of Judges, shows that of all federal judges born after 1850, only 18 percent started out as non-district-court judges. The following figure shows the raw count data of where federal judges who did not first sit on a district court began their careers.

Click graph to enlarge.

The three judges among the frontrunners who did not first sit on district courts, Kavanaugh, Barrett and Kethledge, all began their judicial careers on federal courts of appeals.

Except for Justice Elena Kagan, all of the current Supreme Court justices previously served on one of the courts of appeals. Not only do justices tend to hail from courts of appeals generally, but they also tend to hail from particular courts of appeals. The next figure looks at the courts of appeals on which justices in the Justices Dataset sat before joining the Supreme Court.

Click graph to enlarge.

Three of the judges, Kavanaugh, Thapar and Kethledge, served on the top two courts in the figure — the 6th and D.C. Circuits.

Backgrounds

Not surprisingly, all of the frontrunners were nominated to courts of appeals by Republican presidents. Kethledge, Kavanaugh and Hardiman were nominated by George W. Bush, and Thapar and Barrett were nominated by Trump. The majority of judges in the Judges Dataset were initially nominated by Republican presidents as well.

Click graph to enlarge.

Across time, presidents have had varying opportunities to nominate federal judges. Trump is already a distinct player in this area. The following figure looks by appointing president at counts of judges appointed to their first federal judgeship based on data in the Judges Dataset.

Click graph to enlarge.

Two Democrats and two Republicans — Bill Clinton, Barack Obama, George W. Bush and Ronald Reagan — lead the pack with the most appointments. With 37 nominations for judges’ first federal judgeships, Trump has gained ground on those presidents in his first two years in office.

Geography is also an important background element for federal judges, because judges tend to come from specific geographic locales. The figure below shows the relative number of federal judges in the Judges Dataset who were born in the various states.

Click map to enlarge.

The top four states where most judges in this set were born are New York, Pennsylvania, California and Illinois. Of the frontrunners, Kavanaugh was born in Maryland, where between one and two percent of federal judges in the dataset were born; Kethledge was born in New Jersey, along with between 3 and 4 percent of the set; Thapar was born in Michigan, along with just under 3 percent of the dataset; Hardiman was born in Massachusetts, where close to 3 percent of the judges in the set were born; and Barrett was born in Louisiana, along with just under 3 percent of the Judges Dataset.

The majority of frontrunners fit the most common racial/gender demographic profile of federal judges in the Judges Dataset — white and male.

Click graph to enlarge. [Note: Several labels that categorized only one judge were removed]

The two frontrunners who buck this trend are Barrett, a woman, and Thapar, who is of Indian American decent.

Qualifications

The frontrunners are all recognized as top conservative minds on the federal judiciary. Each comes from a distinguished academic background, including a highly ranked law school, although none of them went to the most common law school of justices in the Justices Dataset — Harvard Law School.

Click graph to enlarge.

Kavanaugh went to the school that produced the second most judges in the set (Yale Law), Kethledge went to the fourth school on the list (Michigan Law), and Thapar went to Chief Justice Earl Warren’s alma mater (UC Berkeley Law). Barrett and Hardiman went to Notre Dame and Georgetown Law respectively, either of which would be a first for a Supreme Court justice.

All federal judges are rated by the American Bar Association based on their qualifications. The neutrality of this process has been under scrutiny over the past several years. Nonetheless, this is one of the measures of nominees reviewed by the senators prior to confirmation votes. Judges in the Judges Dataset received one of five ratings from the A.B.A. — exceptionally well-qualified, well-qualified, qualified, not qualified or not qualified by reason of age. The last figure shows this breakdown for the Judges Dataset.

Click graph to enlarge.

Of the frontrunners, Thapar and Hardiman both earned well-qualified ratings, while Kethledge and Barrett were voted well-qualified by a substantial majority and qualified by a minority of A.B.A. raters. Kavanaugh had the unusual experience of having his qualifications rating lowered from a majority well-qualified and minority qualified to a majority qualified and minority well-qualified. Several Republican members of Congress criticized this alteration as motivated by partisanship.

A few final notes

For the justices in the Justices Dataset the average time between nomination and a final vote in the Senate was 32 days, although that average time becomes greater if we curtail the sample to more recent nominations. The average hearing length for these justices was three days, although the maximum was 19 for Justice Louis Brandeis, and 14 of the justices had single-day hearings.

The context provided above is not intended to answer the question of which judge Trump will choose as the nominee. The comparisons are useful, though, in understanding ways we can distinguish among the candidates.

This post was originally published at Empirical SCOTUS.

The post Empirical SCOTUS: The five frontrunners appeared first on SCOTUSblog.

Past summer nomination timelines

Past summer nomination timelinesOn Wednesday, June 27, Justice Anthony Kennedy announced his resignation from the Supreme Court, effective July 31. Two days later, President Donald Trump told reporters that he would nominate Kennedy’s replacement on July 9, which would give just 12 days from retirement to nomination. This timing roughly matches past recent nominations that occurred mid-summer. President […]

The post Past summer nomination timelines appeared first on SCOTUSblog.

Past summer nomination timelines

On Wednesday, June 27, Justice Anthony Kennedy announced his resignation from the Supreme Court, effective July 31. Two days later, President Donald Trump told reporters that he would nominate Kennedy’s replacement on July 9, which would give just 12 days from retirement to nomination.

This timing roughly matches past recent nominations that occurred mid-summer. President Ronald Reagan nominated Robert Bork to replace Justice Lewis Powell five days after Powell’s resignation on June 26, 1987. President George H.W. Bush nominated both David Souter and Clarence Thomas three days after the respective retirements by Justices William Brennan on July 20, 1990, and Thurgood Marshall on June 28, 1991. President George W. Bush nominated John Roberts to replace Justice Sandra Day O’Connor within three weeks of her retirement on July 1, 2005.

Shortly after Kennedy’s retirement, Senate Majority Leader Mitch McConnell, Republican of Kentucky, promised a “vote to confirm Justice Kennedy’s successor this fall.” Of these past four summer nominees, one was confirmed before the start of the Supreme Court’s next term, two were confirmed in October and joined the bench shortly after the start of the term, and one was rejected.

Roberts’ hearing began on September 12, by which point he had been nominated to chief justice following Chief Justice William Rehnquist’s death. The Senate confirmed him on September 29, and he heard oral argument in the court’s first case of October Term 2005, IBP Inc. v. Alvarez.

Thomas’ hearing began on September 10, but did not conclude until October 13, after Anita Hill made allegations of sexual harassment against Thomas. The Senate confirmed Thomas on October 15, and he took his seat on October 18. He heard his first arguments in the October 1991 term’s November sitting.

The hearing for Souter’s nomination, which came during a midterm-election year, began on September 13. The Senate confirmed him on October 2, and he took his seat on October 9, midway through the October 1990 term’s October sitting.

Bork’s hearing began on September 15. He was never confirmed. As Nina Totenberg wrote for NPR following Bork’s death in 2012, his ultimate rejection by the full Senate on October 23, 1987, “provoked a lasting partisan divide over judicial nominations.”

These four summer timelines are presented in the chart below, along with timelines for the more recent nominations of Neil Gorsuch, Elena Kagan and Sonia Sotomayor. A confirmation hearing starting 48 or 49 days after a July 9 nomination would begin in late August. And because McConnell canceled most of the summer recess, the Senate will return from its abbreviated break on August 13, instead of on September 4 as originally scheduled.

 

Nominee Days between vacancy and nomination Days between nomination and hearing Days between hearing day 1 and Senate vote Days between nomination and Senate vote
Gorsuch 84* 48 18 66
Kagan 31 49 38 87
Sotomayor 26 48 24 72
Roberts 18 55 17 72
Thomas 3 71 35 106
Souter 3 52 19 71
Bork 5 76 38 114

 

*We start the counter for Gorsuch from the date of Trump’s election (November 8, 2016), not Justice Antonin Scalia’s death (February 13, 2016). President Barack Obama nominated Merrick Garland on March 16, 2016, 32 days after Scalia died. The Senate never held a confirmation hearing or vote.

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Potential nominee profile: Amul Thapar

Potential nominee profile: Amul ThaparWhen President Donald Trump selected his first Supreme Court nominee a year and a half ago, only one of the final four frontrunners had never served as a judge on a federal appeals court: Amul Thapar, then a district-court judge for the Eastern District of Kentucky and a favorite of Senate Majority Leader Mitch McConnell. […]

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Potential nominee profile: Amul Thapar

When President Donald Trump selected his first Supreme Court nominee a year and a half ago, only one of the final four frontrunners had never served as a judge on a federal appeals court: Amul Thapar, then a district-court judge for the Eastern District of Kentucky and a favorite of Senate Majority Leader Mitch McConnell. Although he lacked federal appellate-court experience, usually a prerequisite for a Supreme Court justice, Thapar was one of four candidates, along with Thomas Hardiman, William Pryor and the eventual nominee, Neil Gorsuch, to be interviewed personally by the president. Thapar was not Trump’s pick for that job, but he quickly became the president’s first nominee to a federal court of appeals: the U.S. Court of Appeals for the 6th Circuit, which covers Ohio, Michigan, Kentucky and Tennessee. And now, with the retirement of Justice Anthony Kennedy, and after more than a year on the 6th Circuit, Thapar is once again reported to be on a presidential shortlist of Supreme Court nominees winnowed from the current group of 25 prospective candidates.

Amul Roger Thapar, who turned 49 in April, has lived most of his life in the Midwest. He was born in Troy, Michigan, to parents who immigrated from India, and he grew up in Toledo, Ohio. He attended Boston College and then the UC Berkeley School of Law, where he received his J.D. in 1994. He served as a law clerk to district court Judge C. Arthur Spiegel in Cincinnati, Ohio, from 1994-96 and then to Judge Nathaniel Jones on the 6th Circuit from 1996-97. After a brief stint in Washington, D.C., where he worked in private practice and as an assistant U.S. Attorney for the District of Columbia, Thapar moved back to Ohio in 2001. As an AUSA for the Southern District of Ohio in 2002, he prosecuted fraud cases in Cincinnati and led a successful case against a conspiracy ring that provided undocumented noncitizens with state-issued driver’s licenses.

In 2006, reportedly at McConnell’s suggestion, Thapar was appointed as the U.S. Attorney for the Eastern District of Kentucky. (Thapar lived in a Kentucky town that was just across the Ohio River from downtown Cincinnati.) A year later, President George W. Bush nominated him to be a district-court judge. After Thapar was unanimously confirmed by the Senate in 2007, he became the first federal court judge of South Asian descent. On March 21, 2017, Trump nominated Thapar to the 6th Circuit. Thapar sailed through a confirmation hearing that lasted less than 90 minutes, and he was confirmed by the Senate by a vote of 52-44 on May 25, 2017.

According to a 2016 report in the Louisville Courier-Journal, “Thapar’s father, Raj Thapar, who owns a heating and air-conditioning supply business in Toledo, Ohio, says his son is so conservative that he ‘nearly wouldn’t speak to me after I voted for Barack Obama.’” The Lexington Herald Leader reported when Thapar was nominated to the 6th Circuit that “lawyers across the political spectrum praised [him] as a highly intellectual, thoughtful and hard-working judge.” At Thapar’s district-court confirmation hearing, McConnell told the senators that Thapar had “founded a brand-new chapter of the well-respected Street Law program, which sends law school students into underprivileged high schools to teach the basic underpinnings of our legal system.” The Associated Press reports that McConnell “has encouraged Trump to consider Thapar” for Kennedy’s seat. Thapar, who, according to his father, was raised to be culturally Hindu but not devout, converted to Catholicism when he married Kim Schulte. Thapar and Schulte have three children and live in Covington, Kentucky.

Most of Thapar’s judicial record comes from the district court, where he was known for sprinkling his opinions with folksy language and accessible references. One opinion in an insurance case featured a meditation on the humble penny, which “tend[s] to sit at the bottom of change jars or vanish into the cracks between couch cushions.” In another case, Thapar explained that if someone “promised to pour [a] man a glass of Pappy Van Winkle” – a rare high-end bourbon – “but gave him a slug of Old Crow [a much lower-priced bourbon] instead, well, that would be fraud.”

Thapar’s tenure as a prosecutor may have influenced his approach to criminal law cases, in which he has often, but not always, come out on the side of the government. His most well-known criminal case as a district-court judge was United States v. Walli, in which three members of the Plowshares movement of Christian pacifists, including an 84-year-old nun, were charged with breaking into a federal nuclear plant in Oak Ridge, Tenn., and hanging banners, splattering blood and writing antiwar messages on the wall of a uranium-processing building. After the defendants were convicted of sabotage and damaging federal property, Thapar denied their motion for a judgment of acquittal on the sabotage charge, reasoning that the Constitution leaves the judgment of whether “it make[s] sense to deal as harshly with non-violent protesters as with foreign saboteurs” “to the policymaking branches, so the Court must interpret this criminal statute by its terms.” He then sentenced two of the defendants to five years in prison and the nun, Sister Megan Rice, to a 35-month prison term, saying that he hoped that a significant prison sentence would deter others from following the same path and bring them ‘back to the political system I fear that they have given up on.’” The sabotage conviction was later overturned by the 6th Circuit, in an opinion by another of Trump’s shortlisters, Judge Raymond Kethledge, who wrote that “vague platitudes about a facility’s ‘crucial role in the national defense’ are not enough to convict a defendant of sabotage.”

Thapar sat by designation (that is, he was acting as an appellate judge while he was still on the district court) in the 6th Circuit case United States v. Williams, in which the panel ruled that a sentence had to be vacated because the defendant had not been physically present at the sentencing proceeding. Thapar wrote a separate concurrence to object to the 6th Circuit’s rule about how deferentially a court of appeals should review a lower-court ruling to which a defendant did not object. Thapar argued for a rule under which the lower court would be reversed only if it committed plain error, even when neither party asks for that highly deferential standard to apply. Sitting by designation again on the 6th Circuit in United States v. Carr, Thapar dissented from an opinion suppressing evidence found after police officers blocked a suspect’s exit from a car wash and then found drugs and a gun in the suspect’s vehicle. Assuming that the officers had conducted a stop in violation of the Fourth Amendment, Thapar argued that suppression of the evidence was not required because “no good deterrent effect would occur from suppressing the evidence” and “the officers did exactly what society would want them to do.”

Another suppression case in which Thapar sat by designation on the 6th Circuit, United States v. Frechette, ended with a Thapar decision holding that suppression of evidence obtained via a search warrant in a child-pornography case was not required. The district court had determined that the supporting affidavit did not provide probable cause to believe child pornography would be present in the defendant’s home or on his computer because it stated only that the defendant had made a one-time subscription to a pornographic website. Thapar wrote that “if someone spends $80 for something, it is highly likely that the person will use it—whether it is a tie, a video game, or a subscription to a pornographic web site.” In a strong dissent, Judge Karen Moore objected to “the radical view of probable cause expressed in the majority opinion—a view far more expansive than any circuit has taken to date.”

On other occasions, though, Thapar has ordered suppression of evidence that he determined was obtained illegally. In United States v. Lee, Thapar suppressed a confession and other evidence obtained after DEA agents installed a tracking device on a suspect’s car without a warrant and declined to extend the good-faith exception to justify admitting the illegally obtained evidence because doing so “would give police ‘little incentive to err on the side of constitutional behavior.’” In United States v. Rice, Thapar suppressed evidence found at the defendant’s home because “[i]f the suppression rule applies at all, it surely applies when one’s home is invaded without probable cause,” and the affidavit contained no evidence linking the suspected criminal activity to the defendant’s residence. Most recently, since his appointment to the 6th Circuit, Thapar wrote a decision in United States v. Perkins holding that suppression was required after the government conducted a search even though the triggering event for an anticipatory warrant had not occurred.

Thapar discussed sentencing reform in a November 2015 speech at Columbia Law School, reportedly saying that “he supports ‘judicial craftsmanship’ in devising reduced sentences for first-time and low-level offenders, perhaps enrollment in drug treatment and job training programs instead of incarceration,” but that “he thinks current sentencing structure does not do enough to punish … repeat offenders.” In United States v. Bunkley, also a recent 6th Circuit opinion, Thapar wrote for a panel that affirmed an upward variance from the sentencing guidelines for a “large-scale, life-long drug dealer who fed addiction in his community,” but held that the district court had failed to explain its reasons for imposing lifetime supervised release.

Thapar’s death-penalty cases as a district-court judge were generally subject to the Antiterrorism and Effective Death Penalty Act, a federal law that sets a high bar for inmates attempting to obtain habeas corpus relief from their convictions. In most of those cases, Thapar ruled that the defendants had not cleared that bar. After joining the 6th Circuit, Thapar also signed onto an en banc majority opinion written by Kethledge that upheld Ohio’s lethal-injection protocol.

Thapar has tended to rule against inmates in noncapital habeas cases, which are also subject to AEDPA’s restrictions, and on at least one occasion he has expressed interest in reducing the availability of habeas relief. In a concurrence in Lawrence v. 48th District Court, Thapar, again sitting by designation on the 6th Circuit, lamented that circuit precedent required the court to consider the defendant, who had been convicted of resisting a police officer, as “in custody” and therefore able to seek habeas relief, even though he had been released on bond. Thapar wrote, “While there is nothing that this panel can do to bring the meaning of the term ‘in custody’ back to its plain meaning, perhaps Congress or the Supreme Court should restore the proper definition by clarifying what exactly is meant by ‘in custody.’” In Stiltner v. Brown, which was subsequently reversed by the 6th Circuit, Thapar rejected the claim of an inmate serving a life sentence that his mental incompetence entitled him to equitable relief from AEDPA’s one-year window for filing a habeas petition. Thapar wrote that, although the inmate was mentally incompetent, he “did not diligently pursue his rights.” But Thapar has granted post-conviction relief outside the AEDPA context. In United States v. Arny, later affirmed by the 6th Circuit, Thapar concluded that “Dr. Stephen Arny’s trial counsel’s inaction helped his adversary — i.e., the government — convict him of conspiracy to distribute controlled substances,” so Arny had received constitutionally ineffective assistance of counsel and was entitled to a new trial under Federal Rule of Criminal Procedure 33.

In civil cases, Thapar has written rulings that affect plaintiffs’ ability to litigate their claims. In Turner v. Astrue, a Social Security-benefits case, Thapar wrote an opinion denying attorney’s fees under the Equal Access to Justice Act, holding that the plaintiff had not “’incurred’ attorney’s fees … [when] he [was] not yet contractually obligated to pay his attorney.” Thapar acknowledged that “[i]f the EAJA fees dry up, as a matter of basic economics, there will be fewer attorneys willing to represent Social Security claimants in federal court,” but reasoned that “this practical effect cannot change the Court’s obligation to interpret and apply the text of the EAJA faithfully.” The 6th Circuit later reversed, holding that “[c]ontrary to the conclusion of the Turner court, our interpretation of ‘incurred’ does not create a windfall for litigants.” In Hill v. Lappin, Thapar dismissed as frivolous claims against federal prison officials for violations of an inmate’s constitutional rights, concluding that the inmate did not have a constitutional right to avoid prison transfers or segregated housing and that his fear of future harm by prison staff was speculative. In reversing, the 6th Circuit held that the “allegations in Hill’s complaint sufficiently state a First Amendment retaliation claim, especially in light of the ‘indulgent treatment’ that ‘[c]ourts are instructed to give … to the “inartfully pleaded” allegations of pro se prison litigants.’”

Once a civil case has survived the pleadings, Thapar has shown willingness as a district-court judge to allow a jury to consider the facts rather than granting summary judgment against the plaintiffs. For example, in Conn v. Deskins, Thapar denied summary judgment on some of the plaintiff’s due process and First Amendment claims in a retaliatory-discharge case. And in Bentley v Highlands Hospital Corp., a medical-negligence case, Thapar wrote, “In baseball, ties go to the runner. In summary judgment, ties go to the plaintiff. Why? Because civil litigants have a right to a jury trial.  And when a case comes down to a close call, the jury must be the one to make it.”

Thapar has also exhibited independent judgment in ruling for less powerful litigants in disputes with larger institutions. In M. Johnson Family Properties v. Jewell, he employed textual analysis of a federal statute in ruling that a mining company had not complied with minimum permitting requirements and ordering the company to stop surface coal mining on the plaintiff’s land. Hicks v. Colvin was a lawsuit brought by a Social Security claimant whose disability claim was denied because an unscrupulous lawyer had submitted false medical records as part of a wide-scale benefits-fraud scheme. Ruling that Amy Jo Hicks was entitled under the due process clause to present evidence of her disability in a redetermination proceeding, Thapar pointed out that “[i]f the government [had thrown her] in jail because she was a member of Al Qaeda, she would get a chance to challenge that factual assertion before a neutral arbiter.”

Thapar’s most notable First Amendment decision came in a campaign-finance case, Winter v. Wolnitzek, in which he enjoined enforcement of several Kentucky canons of judicial conduct governing contributions and statements by candidates for state judicial office. In striking down a canon prohibiting a judicial candidate from contributing to a political organization or candidate, Thapar stated that “under the Supreme Court’s precedents, direct speech and monetary speech are functional equivalents. … Thus, there is simply no difference between ‘saying’ that one supports an organization by using words and ‘saying’ that one supports an organization by donating money.” Therefore, he continued, the provision had to be strictly scrutinized and could only survive if it was narrowly tailored to serve a compelling government interest, which, in his view, it was not. In an opinion by Judge Jeffrey Sutton, the 6th Circuit reversed as to two of the canons, including the canon prohibiting contributions, and sent one other back for reconsideration. Sutton reasoned that although “[f]inancial contributions, we realize, amount to speech,” “[a] contribution of time, money, or reputation to a political organization or a candidate in a separate election, whether judicial or not, differs in kind and degree from a judicial candidate contributing the same to his own campaign,” and “[t]he contributions clause narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.”

After joining the 6th Circuit, Thapar voted with an en banc majority to hold that a Michigan county board’s practice of opening legislative meetings with prayer by legislators does not violate the Constitution’s establishment clause. That case, Bormuth v. County of Jackson, conflicts with a recent ruling by the U.S. Court of Appeals for the 4th Circuit; the Supreme Court declined on June 28 to review the two cases. Thapar’s other religion clause cases generally involve challenges by prisoners to conditions of confinement that they claim deny them the opportunity to exercise their religion freely, and Thapar has ruled for the government most of the time.

Thapar has decided a number of civil-rights cases, with mixed results. Sitting by designation on the 6th Circuit, Thapar wrote an opinion dismissing a same-sex sexual harassment and retaliation claim, in Wasek v. Arrow Energy Services. After remarking on the ‘”key evidentiary differences between mixed-gender and same-gender sexual harassment,” Thapar stated that to prove discrimination, the plaintiff was required to demonstrate that his harasser was homosexual. In this case, however, the plaintiff had offered “no evidence of Ottobre’s sexuality other than the pure conjecture that Ottobre was ‘possibly bisexual,’ and he had therefore failed to establish a hostile work environment claim.” In Sours v. Big Sandy Jail, Thapar wrote an opinion holding that a nurse was entitled to summary judgment and partial immunity from suit in a federal- and state-law civil-rights case stemming from allegedly inadequate medical treatment at a detention facility. The 6th Circuit reversed on both points, stating as to the federal claim that “our holding that medical care that ‘is so cursory as to amount to no treatment at all’ constitutes deliberate indifference does not support the district court’s conclusion that there is no deliberate indifference unless the treatment amounted to no treatment at all.” In another civil-rights case, Thomas v. City of Eastpointe, this one decided after Thapar was appointed to the 6th Circuit, Thapar wrote an opinion awarding qualified immunity to a police officer in a suit for damages resulting from the officer’s use of his taser. But in Kiessel v Oversdorf, sitting by designation on the 6th Circuit, Thapar wrote an opinion upholding a lower court’s denial of qualified immunity to a sheriff and undersheriff in a case filed by sheriff’s office employees who claimed retaliation after the employees criticized the sheriff in a newspaper.

In a recent 6th Circuit case, Stein v. Atlas Industries, Thapar wrote an opinion reversing a grant of summary judgment for an employer in a case alleging unlawful termination under the Employee Retirement Income Security Act. Thapar stated that the employer had made a preliminary showing that he was dismissed to avoid the prospect of future medical costs that might be incurred by his son. But in Wagner v. The Sherwin-Williams Company, in an opinion selected by The Green Bag as an exemplar of good legal writing in 2015, Thapar held that under the Americans with Disabilities Act and Kentucky law, the paint company was justified in firing an employee whose stroke deprived him of peripheral vision and left him unable to drive.

In Viuda de Mejia v. Sessions, in 2017, Thapar wrote for a 6th Circuit panel that upheld a Board of Immigration Appeals decision denying a Salvadoran woman’s asylum claim. Noting that the woman was required to establish that she was or would be persecuted for being a member of a particular social group, Thapar remarked that “[h]er proposed social groups have … expanded and contracted with each appeal as she searched for the right fit,” but that “novelty is not often rewarded on appeal.” And in United States v. Agyemano, in 2015, Thapar rejected a motion to dismiss a charge of resisting deportation in the case of a noncitizen who came to the United States from Ghana on a student visa in 2003 but never enrolled in classes. Edward Darko Agyemano had been convicted already on a similar charge, and the court delayed his sentencing until Agyemano’s administrative challenge to the removal order, based on the immigration authorities’ failure to notify him of his right to appeal it, could be resolved. During that delay, federal agents again tried to deport Agyemano, and he was again charged with resisting deportation. Agyemano argued that it violated due process to charge him for violating the removal order because the order had been suspended while his challenge was pending. Thapar parsed the language of the relevant immigration regulations and came to a contrary conclusion. Thapar acknowledged that “[i]t may seem harsh to force Agyemano to obey a removal order while his appeal is still pending. But—save for extreme cases implicating constitutional protections—it is not for the courts to moderate the choices that Congress has made.” Another 2015 immigration ruling, in Lopez Hernandez v. Prindle, involved an issue that the Supreme Court will resolve next term: whether a noncitizen convicted of a crime becomes exempt from mandatory deportation if immigration authorities do not take him into custody immediately after his release from prison. Finding the immigration statute ambiguous, Thapar deferred to the interpretation of the BIA, which ruled that no exemption from deportation applied, but he noted that other courts have arrived at a different conclusion.

Insight into Thapar’s approach to judging comes from a review in the Michigan Law Review, written with Benjamin Beaton, of Judge Richard Posner’s book, “The Federal Judiciary: Strengths and Weaknesses.” Thapar and Beaton note that Posner argues for “an aggressive substantive pragmatism that eschews traditional limits of judicial restraint and democratic accountability.” But they ask: “Without an advance commitment to basic interpretive principles (those formal legal texts, precedents, and rules of interpretation this book disparages), who can anticipate how a judiciary of Posnerian pragmatists would articulate and apply that law?” And they conclude that “the truly pragmatic judge is one whose rulings flow naturally from the governing legal text, the precedents reasonably interpreting that text, and the record of the case in a way that is predictable beforehand and ascertainable thereafter.” The Virginia Law Weekly reports that during a visit to the University of Virginia Law School to discuss Posner’s book, Thapar said he fears that Posner’s approach “may lead judges to decide cases based on what he termed the imaginary ‘Emotions Clause’ of the Constitution rather than the text itself. … He acknowledged that ‘textualism is hard,’ but argued that it is not the responsibility of the judiciary to amend poor legislative drafting, even if judges would personally prefer a different outcome than what is required by a statute’s text.”

Thanks are due to Aurora Temple Barnes for her significant contributions to the legal research for this post.

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