Category: reason

3/7/1965: Civil rights marchers are attacked by the police in Selma, Alabama. The event would become known as “Bloody Sunday.”

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“We need to act big,” declared Treasury Secretary Janet Yellen in a February 4 interview with Good Morning America about COVID spending. The next day Vice President Kamala Harris took those words to heart, wielding her tie-breaking vote to push a package worth nearly $2 trillion through the split Senate, ignoring the official Republican counterproposal to spend a mere $618 -billion.

But the right was far from united behind that smaller (yet still massive) package. The same morning Yellen was on TV, conservative columnist David Brooks was in The New York Times declaring “Biden Is Right To Go Big.” This, of course, was after outgoing President Donald Trump left the country with budget deficits so large that the y-axis on every chart had to be adjusted.

The stated excuse for the spending bonanza is that this is a genuinely unprecedented situation. As Sen. Mitt Romney (R–Utah) put it during a previous relief bill debate, “I happen to be a deficit hawk. I don’t like borrowing money. I don’t like spending money we don’t have. But the time to borrow money—maybe the only time to borrow money—is when there is a crisis, and this is a crisis.”

But President Joe Biden’s agenda is not just about borrowing money to handle the fallout from the pandemic. Somehow, policy makers slid from “never waste a crisis” to “everything is a crisis,” a development that is particularly irksome during an actual crisis.

As he announced his economic team in December, Biden went off-script to make this chillingly casual remark: “You know, the Founders were pretty smart….There’s a reason why all the states and localities have to have a balanced budget, but we’re allowed federally to run a deficit in order to deal with crises and emergencies, as we have in the past.” That line wasn’t written into his script; it was a peek at the cud the man was chewing at the moment. “We should be investing in deficit spending in order to generate economic growth,” he went on.

To Biden—and indeed to nearly all of the mainstream Democratic Party, and much of the Republican Party as well—nearly every policy priority seems to be justified by a crisis large enough to win the Founders’ hypothetical benediction to take on spreadsheet-breaking amounts of debt. Leaving aside the dubious historical validity of such a claim about our bewigged forebears, such statements reveal where the new president and his party are searching for rationalizations for what they are about to do.

Biden’s plans are enormous and wide-ranging. His $1.3 trillion infrastructure proposal is large enough that every week will once again be infrastructure week. There’s $2 trillion in spending for an environmental initiative helmed by not one but two climate change czars. A relative moderate on health care compared to the rest of the Democratic field, Biden plans merely to expand eligibility for and the amount of subsidies available through the Affordable Care Act, at a cost of about $750 billion over a decade. With student debt, the new president has already paused repayment requirements on $1.7 trillion in student loans. He is now pushing Congress to enact loan forgiveness as well, though he has so far declined to go along with more radical proposals for an executive order offering $50,000 in amnesty per person.

Then there are the plans that have less obvious price tags but represent a significant cost in terms of lost growth or hampered innovation, such as rollbacks of previous deregulation; a $15 minimum wage; and the administration’s ambitious yet vague net-zero emissions goals.

All of this may well activate some small-government muscle memory in parts of the GOP. But by embracing or at least tolerating Trump’s highhandedness and free spending—not to mention earlier Republicans’ lack of fiscal discipline—the party traded away a significant portion of its ability to credibly object to big increases in spending and in the scope of the state. And many of the party’s more consistent fiscal hawks flew the coop as the last administration wore them down, so there simply may not be the manpower on the Hill to take a productive stand on this issue. Instead, the field is occupied by a new breed of Trumpian Republicans, like Missouri Sen. Josh Hawley (see page 20), who are more than happy to spend and regulate their way to populist authoritarian ends.

Meanwhile, as Biden staffs his administration with old stalwarts, he is running into a weirdly parallel problem: It wasn’t so long ago that fiscal vigilance and balancing budgets were solidly within his party’s Overton window. Bill Clinton was celebrated for his presidential prowess on this front, and Barack Obama kicked off his first term with a summit on “fiscal responsibility.”

Some of the people Biden initially signaled he might bring into his leadership team lost out because of their historical affiliation with such now-outdated notions. The appointment of longtime policy adviser Bruce Reed to a position of responsibility in the new administration was blocked, for instance, because of his scandalous involvement with the National Commission on Fiscal Responsibility and Reform years ago.

The combination of the political economy of constant crisis and the vague cover afforded by trendy Modern Monetary Theory—which posits that an economic powerhouse in possession of a global reserve currency doesn’t have to worry about deficits because it can always just create more money—makes fretting about debt seem passé and even a bit embarrassing to today’s Democratic movers and shakers.

But convenient new conventional wisdom does not change the facts that debt comes due and that reversing the ratchet in the growth of government is very nearly impossible. There may well be a post-COVID economic boom. But the more the government spends, the harder it will be to grow our way out of the hole we’ve dug.

Libertarians, perhaps more than most, value consistency both across time and across topics. Neither major party has a clean record on debt and deficits at this point. There are still people in both parties who are old enough to remember when fiscal restraint was more than a rhetorical cudgel to be wielded opportunistically. But if old-style small-government Republicans or revivified Clintonites do find their footing in the swamp, there will still be the matter of whether there will be enough of them, whether they can be trusted—and whether there’s anything they can do to turn the tide.

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Ed Driscoll at InstaPundit reminds us of this Time headline from March 4, 2020. Of course, even the experts make mistakes, especially about new situations; no-one can be expected to get it right all the time. And on balance, I tend to go along with the experts’ recommendations, not because they’re guaranteed to be right, but because they’re more likely to be right than nonexperts like me would be.

Still, it’s a sobering reminder that we should be somewhat skeptical of everyone, including scientific experts—and that we should be open to the possibility that the skeptics might well be right, even if we ourselves stick with expert advice.

I’m reminded of this, incidentally, when I hear about people who are hesitant to get the COVID vaccine. I’ve gotten my first shot (rightly or wrongly, educators, including ones who won’t be back in the classroom until August, have recently been allotted COVID shots in California), because I generally trust the medical establishment to get these things right. And once everyone who wants to get vaccinated is vaccinated, we might ask if those who aren’t vaccinated should be pressured to do so. (For more on why I think compulsory vaccination might sometimes be proper, see this post.)

But it’s perfectly reasonable, I think, for people not to want to be the early adopters here. It’s a new vaccine, and like all new things it could have unforeseen problems. The experts tell us it seems pretty safe, and they’re probably right, but we can’t be sure—and the more time passes, the more we’ll know about any possible problems. So long as there’s not enough vaccine to go around, it seems to me quite sensible for suitably skeptical people to yield their place (for now) to someone who has a different guess about the relative risks, and to put off getting vaccinated until more is known.

(I’m speaking generally here; some people who might be in especially high-contact positions might have more obligation to run the risk of the vaccine, to minimize the risk of infecting others, but many people are in pretty low-contact positions these days.)

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From Black v. New England Computer Services, Inc. (D. Conn.), decided Thursday by Jeffrey Alker Meyer:

Wikipedia defines a “Perry Mason moment” to be “whenever information is unexpectedly … and often dramatically introduced into the record that changes the perception of the proceedings greatly and often influences the outcome.” Counsel for the plaintiffs in this action planned a Perry Mason moment. She deposed one of the defendants about a key meeting he had with one of the plaintiffs and then surprised him with a secret tape recording that contradicted his sworn account.

But the problem is that this Court’s initial discovery protocols required counsel to disclose the recording from the get-go of this lawsuit. Counsel did not do so. And so the defendants now move to preclude the recording for an obvious violation of the Court’s discovery rules. I will grant their motion.

The facts:

The plaintiffs are three women—Patricia Black, Ashley Platt, and Shawn Danielson—who were employed with New England Computer Services, Inc. They worked with the company’s owner and president—Chris Anatra—and they have filed this lawsuit against both the company and Anatra.

The plaintiffs’ claims stem in part from a company meeting that occurred in August 2018. Anatra allegedly summoned one of the plaintiffs—Danielson—to discuss her employment status with the company. According to the plaintiffs, Anatra made false and defamatory statements about all three of the plaintiffs at this meeting, largely accusing them in vitriolic terms of lying about him and the company in discrimination complaints they had filed with the Connecticut Commission on Human Rights and Opportunities.

Unbeknownst to Anatra, Danielson secretly audio-recorded this meeting. Danielson in turn gave this recording to her counsel who later filed this lawsuit for the three plaintiffs. The lawsuit alleges several claims for unequal pay, sex discrimination, and retaliation, as well as related claims for defamation stemming from the statements allegedly made by Anatra at the secretly recorded meeting….

The secret recording would not surface until counsel for the plaintiffs sprung it on Anatra during the course of his deposition in December 2019. Counsel asked Anatra at this deposition if he had made the defamatory statements as alleged in the complaint. When Anatra denied doing so, counsel then surprised him by playing excerpts of the recording….

Great tactic, right? Not so fast:

The District of Connecticut is one among numerous federal district courts that have adopted special discovery disclosure requirements for most employment discrimination cases. These procedures are known as the Initial Discovery Protocols for Employment Cases Alleging Adverse Actions …. Their stated purpose “is to encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery.” …

[C]ounsel for the plaintiffs filed a Rule 26(f) report in February 2019 stating that “[t]he Court’s Initial Discovery Protocols apply in this case and these disclosures will be served by March 25, 2019.” That date came and went without disclosure of the secret recording. This was a clear violation of the Protocols’ initial disclosure requirements. The Protocols itemize categories of “Documents that Plaintiff must produce to Defendant,” a lengthy listing that includes “[a]ll communications concerning the factual allegations or claims at issue in this lawsuit between the plaintiff and the defendant.” It is self-evident that an audio recording of a conversation between a plaintiff (Danielson) and a defendant (Anatra) falls within the scope of this disclosure requirement.

If a party fails to comply with a discovery disclosure requirement, a court has discretion to preclude the evidence “unless the failure was substantially justified or is harmless.” See Fed. R. Civ. P. 37(c)(1)…. As the Second Circuit has recognized, the purpose of allowing a court to preclude evidence under Rule 37 is to “prevent the practice of ‘sandbagging’ an opposing party with new evidence.” …

[Plaintiffs] rely on an “impeachment” exception to the initial disclosure requirements under [Fed. R. Civ. P.] 26(a)(1)(A)(ii) (requiring initial disclosure of documents that a party “may use to support its claims or defenses, unless the use would be solely for impeachment”). But this case is governed by the Protocols, not by Rule 26(a)…. [T]he Protocols expressly supersede the initial disclosure requirements of Rule 26(a). And the text of the Protocols plainly have no impeachment exception allowing a party to withhold communications between a plaintiff and a defendant.

If counsel in good faith had believed that the Protocols were subject to an impeachment exception, one might have expected counsel to say so when she made her disclosures to the defendants. But the record here shows that counsel promised to produce “[a]ll communications concerning the factual allegations or claims at issue in this lawsuit with the plaintiffs and the defendant,” with nary a mention of withholding any documents for impeachment purposes.

Is there any good reason why counsel ignored the Protocols? None at all. Even after the defendants filed their motion to preclude the recording and explicitly invoked the plaintiffs’ special disclosure obligations under the Protocols, counsel filed a response that does not even cite or acknowledge the Protocols—relying instead solely on the superseded terms of Rule 26(a)(1).

This suggests incompetence, evasion, or maybe both. The inference is strengthened by counsel’s effort to ambush Anatra with the recording at his deposition, as well as by the months-long further delay by counsel in producing the recording even after it was requested by the defendants when it was played at the deposition.

An attorney of reasonable competence would have timely disclosed the recording just as the Protocols require. If the failure to disclose was simply an accident, then an attorney of reasonable competence and good faith would have produced the audio recording promptly when requested by the opposing party and then further consulted with opposing counsel to determine if there were remedial measures that they could agree on to remedy the accidental failure to disclose. An attorney of reasonable competence and good faith would certainly have acknowledged to the Court their obvious obligation to disclose the recording rather than altogether ignoring the Protocols and what they require. …

It is no answer to say that Anatra was not privileged to lie or misstate facts during his deposition (if that is what he did). When months or years elapse between a meeting and a sworn deposition about what was said at the meeting, a witness’s account may depart from what actually occurred for reasons not evincing an intention to deceive but for lack of memory or accurate recollection. The relevant issue is that Anatra had a right under the Protocols to listen to the recording before facing interrogation at his deposition about what he had said. “A party whose conversation was secretly recorded should not be subjected to a deposition, the partial purpose of which is simply to create inconsistencies or otherwise set up impeachment in the defendants’ testimony, without the defendant having had a chance to review the tapes—the same opportunity that plaintiff had prior to her deposition.” Jerolimo v. Physicians for Women, P.C. (D. Conn. 2006)…..

I have also considered the possibility of lesser measures as an alternative to an order precluding the recording. The discovery period has long since closed in this action and had already closed by the time that counsel for plaintiffs got around to producing the recording. Lesser remedial measures would entail opening up discovery for new depositions and to explore the authenticity and circumstances of Danielson’s creation of the recording. This would be time-consuming and costly.

And for what purpose? To enable or reward counsel’s reckless or intentional disregard for the Court’s disclosure rules. That makes no sense to me….

I will preclude the recording from trial as well as any reference to its creation or existence and any impeachment of any witness on grounds of any alleged discrepancy between their statements or testimony and the contents of the recording. The secret recording did not and does not exist for purposes of this trial.

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Justice Barrett’s first issued published opinion in United States Fish and Wildlife Serv. v. Sierra Club, Inc. was not unanimous. And I observed that there is something of a tradition for a Justice’s first opinion to be unanimous. But on closer inspection, I am not so sure.

Let’s start with Justice Kavanaugh. His first published opinion, Henry Schein Inc. v. Archer & White Sales Inc. was unanimous. But this case was not his first assigned opinion. Schein was argued during the Court’s November sitting on October 29, 2018, and decided on January 8, 2019.

However, Justice Kavanaugh was also assigned a case from the Court’s October sitting. Air and Liquid Systems Corp. v. Devries was argued on October 10, 2018, and decided on March 19, 2019. That case split 6-3, with Justice Thomas, Alito, and Gorsuch in dissent. Yes, Roberts’s first assignment to Kavanaugh was a case in which the three most conservative members of the Court dissented! Welcome to SCOTUS, Justice Kavanaugh.

Meanwhile, there was a single 9-0 case from the October sitting. Justice Breyer wrote the unanimous majority opinion in United States v. Stitt, an Armed Career Criminal Act decision. Stitt was argued on October 9, the day before Devries. Both Devries and Stitt would have been assigned at the same Friday conference. Why would the Chief give Kavanaugh the 6-3 case for his inaugural assignment, while giving Breyer a 9-0 opinion. This practice tells me that Roberts doesn’t much care for this unanimous inaugural opinion business. Yet, Kavanaugh’s first published opinion was still unanimous.

Let’s go back to OT 1994. Justice Breyer’s first published opinion was not unanimous. Allied-Bruce Terminix Co. v. Dobson split 7-2 (the same vote as Sierra Club). Justice Scalia and Thomas welcomed the Junior justice with a dissent. This case was argued on October 4, 1994, and was decided January 5, 1995. Meanwhile, there were four unanimous decisions from the October sitting. United States v. Shabani, argued on October 3 was 9-0. And U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, argued on October 4, was unanimous per Justice Scalia. There were two cases argued on October 4. Chief Justice Rehnquist gave the 9-0 case to Justice Scalia, and the 7-2 case to Justice Breyer. Plus there were two 9-0 cases argued on October 11, authored by Justices Thomas and O’Connor. Four out of the nine Justices from the October sitting had 9-0 cases. But not Justice Breyer.

I really wonder if this so-called tradition exists at all.

Sierra Club was argued on November 2, 2020–Barrett’s first day on the “virtual” bench. (She was confirmed on October 27). As best as we can tell, Sierra Club was Justice Barrett’s first assigned, and first published case. And, we will find out in due course if there was another 9-0 case that the Chief assigned elsewhere from the November sitting.

H/T to Patrick Glen.

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In May 2020, a divided three-judge panel on the 10th Circuit upheld President Trump’s executive action that prohibited possession of bump stocks. In September 2020, the 10th Circuit granted rehearing en banc in Aposhian v. Barr. The case was fully briefed, and was argued. Yesterday, the 10th Circuit changed course. By a vote of 6-5, the en banc court voted to vacate its prior order granting en banc review, and reinstate the original three-judge panel:

On September 4, 2020, this court entered an order granting Appellant’s Petition for Rehearing En Banc. Having now considered the parties’ supplemental briefs and heard oral argument in this matter, a majority of the en banc panel has voted to vacate the September 4, 2020 order as improvidently granted. As a result, the court’s September 4, 2020 order granting en banc rehearing is VACATED, the court’s May 7, 2020 opinion is REINSTATED, and the Clerk shall reissue this court’s judgment as of the date of this order.

Five judges dissented from the decision to vacate the grant of rehearing en banc. And there were forty-pages of dissentals from four of those five judges:

Chief Judge Tymkovich, as well as Judges Hartz, Holmes, Eid and Carson would proceed with en banc rehearing. Chief Judge Tymkovich, Judge Hartz, Judge Eid, and Judge Carson have written separate dissents from this order, and each has joined in the others’ dissents. Judge Holmes has also joined all dissents.

At present there are 11 active judges on the 11th Circuit. Judge McHugh recused from this case. The order states:

The Honorable Carlos F. Lucero participated in the en banc court’s consideration of this matter while still in active status. He took senior status effective February 1, 2021, but has participated fully in this order.

I suppose the decision to vacate the order occurred before February 1, but the dissentals took some time to write. I am not sure if there is some rule (internal or external) by which senior status judges can have their votes count in this sort of situation.

By process of elimination we know that the six Judges who voted to vacate the prior order were the appointees from Presidents Clinton and Obama: Judges Briscoe, Judges Lucero, Matheson, Bacharach, Phillips, and Moritz. And the five appointees from Presidents Bush and Trump dissented: Chief Judge Tymkovich and Judges Hartz, Holmes, Eid, and Carson.

I don’t recall ever seeing an appellate court DIG an en banc order. I did a search of federal appellate decisions for “en banc” /s “as improvidently granted.” That search yielded only 32 hits. Most of those cases were discussing situations where the Supreme Court DIG’d a case after a circuit court granted en banc. I saw several dissents in which judges urged the en banc court to dismiss a grant of rehearing en banc as improvidently granted. But over the past three decades, only one court has vacated a grant of rehearing en banc: the Tenth Circuit. I found three such cases.

First, in Forest Guardians v. U.S. Forest Service (10th Cir. 2011), the en banc court unanimously vacated its prior order of en banc review. And the panel unanimously granted panel review and issued a revised opinion.

Second, in Gonzales v. McKune (10th Cir. 2002), the en banc court also unanimously vacated its prior order of en banc rehearing, because the issue was not properly raised in state court.

Third, in Northern Arapaho Tribe v. Wyoming (10th Cir. 2005), a divided en banc court vacated its prior order of en banc rehearing. Three judges dissented, and would have certified a question to the Wyoming Supreme Court.

In each of these three cases, there was some indication of why the en banc grant was DIG’d. And in each case, there was a broad consensus to DIG the grant. But in Aposhian, the Court did not explain it DIG, and divided 6-5, with lengthy dissentals.

The lead dissent, by Chief Judge Tymkovich, began:

I dissent from the majority’s decision to vacate the en banc order as improvidently granted. The issues that initially led this court to grant en banc rehearing remain unresolved and it is important that they be addressed to give guidance to future panels and litigants.

The rest of his dissent, and others, explained why the three-judge panel erred.

This case may be a good vehicle for certiorari. Bump stocks are, of course, unpopular, But this case considers whether Chevron deference is warranted in the criminal context. Moreover, the Trump Administration expressly disavowed any reliance on Chevron deference. I suspect the Biden Administration will take a different position. Judge Eid’s dissent summarizes these cert-worthy questions:

Chevron has no place in this case. At least four reasons support this conclusion. First, the statutory language is not ambiguous. Ante, at 9–12 (Tymkovich, C.J., dissenting); post, at 1–2 (Carson, J., dissenting). Second, even if the language were ambiguous, the agency offers up no particular expertise or policy insight to help resolve the ambiguity. Ante, at 1–3 (Hartz, J., dissenting). Third, any argument for deference is waived because the agency disavows reliance on Chevron altogether. Ante, at 12–17 (Tymkovich, C.J., dissenting); post, at 2–3 (Carson, J., dissenting). Finally, the criminal penalties at issue in this proceeding counsel against Chevron’s application. Ante, at 17– 25 (Tymkovich, C.J., dissenting). I join my dissenting colleagues, and write briefly to elaborate on this latter point.

This case may have a chance upstairs.

Disclosure: I authored an amicus brief before the three-judge panel on behalf of the Cato Institute.

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