Category: reason

President-elect Joe Biden is reportedly considering federal Judge Merrick Garland to serve as the attorney general in his administration. According to reporting by NPR, “two people closely following the process” say that Garland is a contender for the role in the Biden White House.

Garland, a long-serving judge on the U.S. Court of Appeals for the District of Columbia Circuit, was President Barack Obama’s 2016 pick to replace the late Justice Antonin Scalia on the U.S. Supreme Court. But Garland’s SCOTUS nomination was totally stonewalled by the Republican-controlled Senate, which refused to even hold hearings. As a result, President Donald Trump was later able to fill the vacancy by nominating Neil Gorsuch.

Plenty of Democrats would no doubt enjoy the idea of Biden trolling the GOP by sending Garland back to Capitol Hill for another high-profile Senate confirmation showdown.

But the idea of Garland serving as attorney general is also likely to trouble many criminal justice reform advocates. That is because Garland has the sort of judicial record that police and prosecutors are quite happy to see. As I noted in a 2016 column:

While Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power.

In the area of criminal law, for example, Garland’s votes have frequently come down on the side of prosecutors and police. In 2010, when Garland was reported to be under consideration to replace retiring Justice John Paul Stevens, SCOTUSblog founder Tom Goldstein observed that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”

On the presidential campaign trail, Biden made certain efforts to distance himself from his regrettable record as an inveterate drug warrior and law enforcement booster. If Biden would like to demonstrate his seriousness about turning over a new leaf on criminal justice issues, picking Merrick Garland for the top law enforcement position in his administration might not be the best way to do it.

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Over the weekend, a federal district court judge through out the Trump campaign’s effort to challenge the Pennsylvania election results in Donald J. Trump for President v. Boockvar. The strongly worded opinion by Judge Matthew Brann excoriates the Trump campaign’s legal team, their arguments, and their tactics.

In response to the ruling, Senator Pat Toomey (R-PA) issued a statement that is worth quoting in full, as it provides a model for how other elected Republicans should be handling the Trump campaign’s legal maneuvers.

With today’s decision by Judge Matthew Brann, a longtime conservative Republican whom I know to be a fair and unbiased jurist, to dismiss the Trump campaign’s lawsuit, President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania.

This ruling follows a series of procedural losses for President Trump’s campaign. On Friday, the state of Georgia certified the victory of Joe Biden after a hand recount of paper ballots confirmed the conclusion of the initial electronic count. Michigan lawmakers rejected the apparent attempt by President Trump to thwart the will of Michigan voters and select an illegitimate slate of electoral college electors. These developments, together with the outcomes in the rest of the nation, confirm that Joe Biden won the 2020 election and will become the 46th President of the United States.

I congratulate President-elect Biden and Vice President-elect Kamala Harris on their victory. They are both dedicated public servants and I will be praying for them and for our country. Unsurprisingly, I have significant policy disagreements with the President-elect. However, as I have done throughout my career, I will seek to work across the aisle with him and his administration, especially on those areas where we may agree, such as continuing our efforts to combat COVID-19, breaking down barriers to expanding trade, supporting the men and women of our armed forces, and keeping guns out of the hands of violent criminals and the dangerously mentally ill.

Make no mistake about it, I am deeply disappointed that President Trump and Vice President Pence were not re-elected. I endorsed the president and voted for him. During his four years in office, his administration achieved much for the American people. The tax relief and regulatory overhauls that President Trump enacted with Republicans in Congress produced the strongest economy of my adult life. He also should be applauded for forging historic peace agreements in the Middle East, facilitating the rapid development of a COVID-19 vaccine through Operation Warp Speed, appointing three outstanding Supreme Court justices, and keeping America safe by neutralizing ISIS and killing terrorists like Qasem Soleimani and Abu Bakr al-Baghdadi.

To ensure that he is remembered for these outstanding accomplishments, and to help unify our country, President Trump should accept the outcome of the election and facilitate the presidential transition process.

Indulging the President’s continued efforts to delegitimize the election through frivolous litigation and conspiracy mongering is not patriotic. It is quite the opposite. Elections have consequences, and in this election the Republican presidential candidate lost. Republicans and others who supported Trump need to acknowledge this fact and move on, as Senator Toomey has.

Alas, there is reason to believe the shenanigans will continue. The Trump campaign filed a notice of appeal in the Pennsylvania litigation with the U.S. Court of Appeals yesterday, but did not ask the court to delay certification of the Pennsylvania results. Other suits remain pending in Wisconsin and elsewhere, and some Republican office holders are still seeking to prevent the certification of results in other states. None of this will overturn President-elect Biden’s victory. It will, however, continue to exacerbate tribal partisan divisions and undermine confidence in our institutions.

It is long past time for more Republicans to put country over party Trump.

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Tennessee can start enforcing a law that criminalizes abortions occurring for non-state-approved reasons. After a lower court temporarily blocked the full measure over the summer, a federal appeals court ruled on Friday that the state may go ahead with the part of the law banning abortion based on the sex or race of the fetus or its likelihood to have Down Syndrome. Performing an abortion under these prohibited circumstances could lead to 15 years in jail and a $10,000 fine.

“Tennessee Republican Gov. Bill Lee enacted the so-called ‘reason bans’ earlier this year as part of a sweeping anti-abortion measure,” notes the Associated Press. “The law gained national attention because it banned abortion as early as six weeks—making it one of the strictest in the country—but it included several other anti-abortion components.”

A judge temporarily blocked enforcement of the law not long after it was signed in July.

The new 6th Circuit Court of Appeals ruling does not totally undo the lower court’s decision. Tennessee is still barred from enforcing the general ban on abortion occurring once fetal cardiac activity can be detected. However, it may begin enforcing the race, sex, and Down Syndrome part of the ban.

It’s unlikely that the state will enforce it, or even that it can, however. As it stands, no one getting an abortion is required to provide a reason why and, even if it were necessary, women seeking abortions on unapproved grounds could simply say it was for another reason.

More than a dozen other states have similar laws on the books, and as far I know, there have been no attempts at enforcing them. What’s more, there’s no particular evidence that U.S. women are seeking sex-selective abortions or race-selective abortions at all, let alone in significant numbers.

Abortions based on Down Syndrome status or other genetic abnormalities in a fetus may be more common, because some families feel financially or emotionally unable to care for a child with special needs. Regardless, these are exactly the kinds of private, personal, and heart-wrenching decisions that should be left to families and medical professionals, not subject to state approval.

“Immediately following the appeals court ruling,” concerning Tennessee’s ban, “the plaintiffs’ attorneys filed a request in lower federal court for a temporary restraining order to block the reason bans once again, but this time argued the law illegally prohibits a patient from ‘obtaining constitutionally protected pre-viability abortion care,'” reports A.P.

FREE MINDS

Conversion therapy for LGBT kids to be allowed again in Florida counties. Florida governments cannot ban counseling and other psychiatric programs aimed at changing people’s sexuality or gender identity, according to a new ruling from the U.S. Court of Appeals for the 11th Circuit. The case we brought by two Florida therapists who argued that laws against conversion therapy in Palm Beach County and Boca Raton violated their First Amendment rights. In a 2-1 ruling, the appellate court agreed, declaring Florida’s two laws banning the practice to be unconstitutional. Read more about the case—and why it could be headed to SCOTUS soon—here.

FREE MARKETS

A win for cannabis delivery services in California. Last week, a judge “dismissed a lawsuit that sought to overturn a state rule allowing home deliveries statewide, even into communities that banned commercial marijuana sales,” notes San Francisco’s local CBS station. “The court challenge raised a fundamental question in the nation’s largest legal pot market: Where can you buy it? The state earlier ruled a licensed delivery can be made into ‘any jurisdiction’ within California.”

ELECTION 2020

Disputed states to certify election results as Trump tries to keep up delusion that his case has a chance. The battleground states where the Trump campaign is challenging election results are all gearing up to certify the results—thereby officially cementing Joe Biden as the election winner. “Michigan and Pennsylvania are set to do so Monday, and Nevada will on Tuesday,” notes NPR. “Arizona and Wisconsin have certification deadlines next week.” Trump has continued to tweet about how he is the real winner and it’s only a matter of time before the courts declare it so. But more and more Republicans are falling out of step with the president’s propaganda as his conspiracy theory grows increasingly elaborate.

A federal judge has dismissed President Trump's lawsuit seeking to overturn the results of the election he lost in PA.

The decision is pretty brutal. He sums up Trump's case as "strained legal arguments without merit and speculative accusations." https://t.co/7012s78NDk pic.twitter.com/5z6AOB8VPp

— Brad Heath (@bradheath) November 21, 2020

QUICK HITS

• A third COVID-19 vaccine is showing promising results.

• “The pandemic is increasing child sex trafficking,” writes Michael Hobbes at HuffPost, “but not for the reasons you think.”

• Nevada is among the latest states to institute new pandemic-related restrictions on dining, socializing, etc.

• Los Angeles is banning outdoor dining now.

• Canada’s Supreme Court has ruled “that Ontario’s sex-offender registry regime violates the constitutional rights of people found not criminally responsible for their actions by reason of mental disorder.”

• Hong Kong pro-democracy activists Joshua Wong, Agnes Chow, and Ivan Lam have all been jailed.

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President Theodore Roosevelt had one lower court appointees that was elevated to the Supreme Court. Roosevelt appointed Judge Van Devanter to the Eight Circuit.

President Taft had zero lower court appointees that were elevated to the Supreme Court

President Wilson had one lower court appointee that was elevated to the Supreme Court. Wilson had appointed Judge Clarke to the Northern District of Ohio. Justice Brandeis had never served as a lower court judge. And Justice McReynolds was Wilson’s Attorney General.

President Harding had zero lower court appointees that were elevated to the Supreme Court. Chief Justice Taft was appointed to the Sixth Circuit by President Benjamin Harrison. Justice Sutherland had been a Senator from Utah. Justice Butler did not serve as a federal judge. Justice Sanford was appointed by President T. Roosevelt as a District Court Judge in Tennessee.

President Coolidge had zero lower court appointees that were elevated to the Supreme Court.

President Hoover had zero lower court appointees that were elevated to the Supreme Court. Justice Cardozo came from the New York Court of Appeals. Owen Roberts was not a lower federal court judge. Chief Justice Hughes had served as Secretary of State, but was previously a Taft appointee as Associate Justice.

You would think that FDR has the record, but so many of his Supreme Court nominees came from outside the judiciary. President Roosevelt had two-lower court appointee that were elevated to the Supreme Court: Judge Rutledge to the D.C. Circuit and Judge Minton to the Seventh Circuit (a Truman appointee. Justice Byrnes was a Senator from South Carolina, Chief Justice Stone served as Attorney General under President Coolidge, Justice Murphy served as Attorney General, Justice Douglas was Chairman of the SEC, Justice Frankfurter came from Harvard Law School, Justice Reed was Solicitor General, and Justice Black was a Senator from Alabama.

President Truman had zero lower court appointee that were elevated to the Supreme Court: Chief Justice Vinson was the Secretary of the Treasury, Justice Minton was a Roosevelt appointee, Justice Clark was Attorney General, and Justice Burton was a Senator from Ohio.

President Eisenhower had five-lower court appointee that were elevated to the Supreme Court. Eisenhower picked three of his own appointees for the high court. Judge Harlan from the Second Circuit, Judge Stewart from the Sixth Circuit, and Judge Whittaker from the Eighth Circuit. And Nixon later tapped two Eisenhower nominee for the Supreme Court: Judge Burger from the D.C. Circuit and Judge Blackmun from the Eighth Circuit. Chief Justice Warren came from the California Governorship and Justice Brennan came from the New Jersey Supreme Court.

President Kennedy had one-lower court appointee that was elevated to the Supreme Court. His successor, Lyndon Johnson, tapped Judge Thurgood Marshall from the Second Circuit. Justices Goldberg and White did not serve as lower-court judges.

President Johnson had zero court appointee that was elevated to the Supreme Court. He plucked Abe Fortas from private practice.

President Nixon had one-lower court appointee that was elevated to the Supreme Court. His successor, President Ford, selected John Paul Stevens from the Seventh Circuit. Chief Justice Burger and Justice Powell were Eisenhower nominees. Justice Powell represented the Chamber of Commerce (we are never, ever allowed to forget that critical fact). And Justice Rehnquist served in the Nixon Administration.

President Ford had one lower-court appointee that was later elevated to the Supreme Court: Judge Kennedy to the Ninth Circuit.

President Carter appointed two: Judge Breyer to the First Circuit and Judge Ginsburg to the D.C. Circuit.

President Reagan only appointed one lower-court nominee who made it to the Supreme Court: Judge Scalia was appointed to the D.C. Circuit. Justice O’Connor was not a federal judge. Justice Rehnquist was plucked from the Nixon administration And Judge Kennedy was a Ford appointee. He did nominate one of his own appointees, Judge Robert Bork, but we all know what happened there. And Reagan never formally nominated Judge Douglas Ginsburg, another one of his appointees.

President George H.W Bush is the runner-up to Eisenhower with four lower-court nominees who were later elevated to the Supreme Court. And he did it in a single term! He appointed Judge Souter to the First Circuit, Judge Alito to the Third Circuit, Judge Thomas to the D.C. Circuit, and Judge Sotomayor to the Southern District of New York. Bush also nominated John Roberts to the D.C. Circuit, but he was not confirmed.

President Clinton had one: Judge Sotomayor to the Second Circuit. Clinton did nominate Elena Kagan to the D.C. Circuit, but she was not confirmed.

President George W. Bush appointed three: Judge Gorsuch to the 10th Circuit, and Judges Roberts and Kavanaugh to the D.C. Circuit.

So far, none of President Obama’s lower-court nominees have been appointed to the Supreme Court. That number very well may change in the next 4-8 years.

President Trump’s circuit court nominees are so young, they will likely be in contention for the next two decades or so.

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Last week, the House of Representatives asked the Supreme Court to reschedule oral arguments in Department of Justice v. House Committee on the Judiciary. The Departmetn of Justice did not object and, on Friday, the Court granted the request.

The case, which concerns the House Judiciary Committee’s efforts to obtain grand jury materials from the Mueller special counsel investigation, was originally scheduled for argument on December 2. The House motion asked to postpone argument in the case, as it’s not clear there will be even be a case left to decide by January. In all likelihood, there would be a new Congress and new President before any decision could issue. Among other things, a new administration may be willing to release the materials or a new House Judiciary Committee may drop its request.

The underlying issue—whether an impeachment trial is a “judicial proceeding” under the Federal Rules of Criminal Procedure—is an interesting one, but also one that is not likely to recur any time soon (or so we can hope). Therefore it will not be a big deal if the Court ultimately decides to let this case go.

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