Alliance Defending Freedom: It’s days away: The Supreme Court’s marriage decision is expected to come down on June 29.
Blog of the Legal Times: President Barack Obama sent three judicial nominees to the Senate on Tuesday for the Eastern District of Pennsylvania, all with experience working as public defenders or with a legal aid organization.
Washington Blade: The White House announced on Tuesday that Obama named Nitza Quiñones Alejandro as part of a group of three nominees to sit on the U.S. District Court for the Eastern District of Pennsylvania. According to the Human Rights Campaign, Quiñones is a lesbian and was recommended by Sen. Bob Casey (D-Pa.).
9th Circuit reverses sanctions against church seeking identity of Bash Back activists who interrupted worship
Courthouse News Service: A Michigan church that subpoenaed several anonymous email accounts after LGBT-rights activists interrupted its services should not face a sanction, the 9th Circuit ruled Monday.
ABA Journal: The 6th Circuit, based in Cincinnati, has had a particularly dismal record before the high court. In the seven Supreme Court terms completed since the fall of 2005, the 6th Circuit has been reversed 31 out of 38 times, for an 81.6 percent reversal rate, based on figures compiled by two Philadelphia lawyers. That leads all the federal circuits for that time period, with the 9th Circuit coming in as the second most reversed—100 out of 128 cases, or 78.1 percent.
CNSNews (includes video): Supreme Court Justice Ruth Bader Ginsburg says there will be enough women on the Supreme Court when all nine justices are female.
NY Times: Initially there was little outcry in Muskogee, Okla., last week when a judge, as a condition of a youth’s probation for a driving-related manslaughter conviction, sentenced him to attend church regularly for 10 years.
Joe Hallett at the Columbus Dispatch: And that’s the problem: Voters know virtually nothing about the judges they elect and are left to play the name game. The system limits judges’ ability to campaign, to raise money and even to make statements that might be construed as political. They are not permitted to be identified by party on general election ballots. In short, we make judges politicians at election time but deny them the crucial opportunities to communicate with voters the way other politicians do.
Eric Black at the MinnPost: One belief important to the myth that binds us is this: That when the Supreme Court exercises its role as final decider on important public issues, it does so modestly, on a non-partisan, non-ideological basis and only when necessary to protect the Constitution from clear excesses committed by the political branches. Preserving that belief can be a tall order, and that perception is at a low ebb.
Volokh Conspiracy (video embedded): The Fifth Annual Rosenkranz Debate was held last Saturday during The Federalist Society’s 2012 National Lawyers Convention. The topic was “Natural Law Should Inform Constitutional Law” although I think the title should have been “Natural Rights Should Inform Constitutional Law” since that was what was actually debated. The advocates were Prof. Hadley P. Arkes (Edward N. Ney Professor in American Institutions, Amherst College) and Judge Alex Kozinski (Chief Judge, U.S. Court of Appeals, Ninth Circuit). It was moderated by Judge Thomas B. Griffith (U.S. Court of Appeals, D.C. Circuit).
Washington Times: When Congress recessed in September for several weeks ahead of the November elections, they left behind 19 judicial nominations that had been approved by the SenateJudiciary Committee but that were awaiting final Senate action. Most are noncontroversial, as 17 received bipartisan support in the committee and seven have support from Republican home-state senators.
AP: A Kansas appeals court attorney was fired Monday after using foul language about the state’s former attorney general in comments she posted to Twitter last week.
Wendy McElroy at the Future of Freedom Foundation: A racial agenda is about to be unleashed on America. According to Investor’s Business Daily (Nov. 8), the Obama administration intends to eliminate the “persistent gaps” between whites and minorities “in everything from credit scores and homeownership to test scores and graduation rates.”
Justin Dyer at Public Discourse: Adam Freedman’s stark proposal in The Naked Constitution that we strip our founding document of its modern and academic glosses shows us that we need to take structural reforms to our Constitution seriously.
John G. Browning at Inside Higher Ed: The Harvard Law Review, arguably the most prestigious and widely circulated law review, had a circulation of 10,895 in 1963–1964. By the 2010–2011 academic year, that figure had plummeted to 1,896.
Richmond Times Dispatch: In his first term, President Barack Obama has had an unprecedented impact on what was long considered the most conservative federal appeals court in the country. Except for the handful of cases that make it to the U.S. Supreme Court, the Richmond-based 4th U.S. Circuit Court of Appeals is the court of last resort for the states of Virginia, Maryland, West Virginia and North and South Carolina.
Robert George and David L. Tubbs at NRO: For this reason and others, the Court should, absent a constitutional amendment defining marriage one way or the other, respect the constitutional allocation of powers and principles of American federalism and allow each state legislature to make policy in this area. The Court should be equally deferential to state referenda (such as Proposition 8 in California) and the 30 amendments to state constitutions that define marriage as the union of one man and one woman. These initiatives are constitutionally legitimate and reasonable policy measures, launched largely because of the provocations of state-supreme-court judges who have redefined marriage for the people of several states. Whatever the liberal pundits have been saying since Election Day, the redefinition of marriage throughout the United States is not “inevitable.” And if the Supreme Court were to invalidate Proposition 8, it would be an act of judicial usurpation even more egregious than its abuse of power in Eisenstadt.
Douglas NeJaime at Jurist: Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary — and the US Supreme Court in particular — as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue.
First Things: This is welcome news. Next semester, Stanford Law School will start the nation’s first law school clinic focusing on religious liberty. Here’s the announcement from the Stanford website . . .
Blog of the Legal Times: Justice Samuel Alito defended the 2010 decision in Citizens United v. Federal Election Commission on Thursday night, jabbing at critics of the U.S. Supreme Court’s majority opinion but also admitting the success of their public relations campaign.
LifeSiteNews: Research attorney suspended for nasty tweets about Phill Kline: Report The Associated Press is now reporting that the research attorney who tweeted nasty and disparaging comments about Phill Kline – Sarah Peterson Herr – was suspended Friday morning, pending …
Rebecca Downs at Live Action News: Wednesday night, Students for Life of America’s group, Law Students for Life, and Harvard Right to Life held a debate, as part of the Law Students for Life tour. The debate was titled “Should Roe Survive Another 40 Years?” The event was broadcast live via USTREAM, and it is still up on the “Resources” section of the Law Students for Life website for those who are interested . . . Instead, the event first featured a presentation from Steve Aden, from Alliance Defending Freedom, followed by Professor Teresa Collett, of the University of St. Thomas School of Law. Now, I consider myself someone well-versed in the pro-life movement and the Roe v. Wade decision. However, there was much I learned from Aden’s carefully crafted presentation, which started off with the premise that Roe v. Wade is the single worst decision the Court has made and is a Supreme Court decision that the pro-choice side has never been able to get the other side to fully accept. The rest of his presentation involved the top-ten reasons to support his premise. The following portion of the article is my recounting of Aden’s reasons and explanations.
Stuart Benjamin at the Volokh Conspiracy: The most commonly used scores for ideological distance are DW-Nominate scores, based on representatives’ actual votes. These measures reduce various flavors of “liberal” and “conservative” to a single metric, but they are the scores most widely used and trusted by political scientists and political commentators because they measure virtually all the actual votes in a careful and rigorous way. As many people have noted, there used to be lots of ideological overlap between the parties, and lots of moderates in both parties, but there is less overlap, and in particular there are fewer moderate Republicans.
The Future Interpretation of the Constitution as a Result of the Reelection of President Barack Obama | Wilson Ray Huhn at SSRN
Huhn, Wilson Ray, The Future Interpretation of the Constitution as a Result of the Reelection of President Barack Obama (November 13, 2012). Available at SSRN: http://ssrn.com/abstract=2174934
On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.
Alliance Defending Freedom Senior Counsel Jordan Lorence will be available for media interviews following his oral argument Monday in favor of a ruling that would allow churches and other faith groups to continue meeting for worship services in New York City public school buildings on weekends.
SCOTUS Blog: On Thursday, the en banc U.S. Court of Appeals for the Sixth Circuit, by a vote of eight to seven, held that the 2006 voter-approved amendment to the Michigan constitution, which prohibited any use of race in the admissions process to any of Michigan’s public colleges and universities, was itself unconstitutional. The court held that the amendment had impermissibly “reorder[ed] the political process in Michigan to place special burdens on minority interests.”
Emily Newburger at Harvard Law School: Michael Klarman’s scholarship has focused on the effect that court rulings have on social reform movements. He argues that when courts get ahead of public opinion, political backlash often follows. That’s what he found in an earlier book he wrote on race and the U.S. Supreme Court, and it is a phenomenon he has also observed in cases involving the death penalty and abortion. In his new book, “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (Oxford), the HLS professor explores whether the same effect has taken place when it comes to same-sex marriage litigation.
LoHud.com: Supreme Court nominees never again get the kind of attention that comes during the confirmation process, Justice Sonia Sotomayor said Monday in a question-and-answer session with law students.
Dechert LLP: Six Pennsylvania judges filed a lawsuit today in Harrisburg claiming that a provision of the Pennsylvania Constitution, which mandates all Pennsylvania justices and judges retire at the end of the calendar year in which they turn 70, violates their rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution and under Article I of the Pennsylvania Constitution.
Roll Call: Hatch’s position, however, is not shared by all his Republican colleagues. The list of stalled nominees includes several who have the strong backing of their home-state Republican senators. Sens. Susan Collins of Maine and James M. Inhofe of Oklahoma, for example, are pressing for confirmation votes in the post-election session.
Des Moines Register: U.S. Sen. Tom Harkin, D-Ia., has nominated two Iowa women to replace retiring Judge Michael J. Melloy on the 8th U.S. Circuit Court of Appeals. The names submitted to President Barack Obama are . . .
Life Legal Defense Foundation Executive Director Dana Cody and Legal Counsel Tom Condit will be available for media interviews immediately following former Kansas Attorney General Phill Kline’s oral arguments before the Kansas Supreme Court this Thursday. Representing the Kansas Bar, Stanton Hazlett has accused Mr. Kline of ten violations of the Kansas Rules of Professional Conduct in relation to Mr. Kline’s criminal investigation of abortion providers Planned Parenthood and the late Dr. George Tiller.
BuzzFeed: The White House announced on Wednesday that President Obama has nominated Judge William Thomas, an out gay man, to serve on the United States District Court for the Southern District of Florida. Thomas would be the first out LGBT black man to serve as a lifetime-tenured federal judge.
WhiteHouse.gov: Today, President Obama nominated Valerie E. Caproni, Kenneth John Gonzales, Raymond P. Moore, Judge Beverly Reid O’Connell, Judge William L. Thomas, Judge Analisa Torres and Derrick Kahala Watson for District Court judgeships.
LifeNews: Leading pro-life attorney Phill Kline is involved in the fight for his life tomorrow at the Kansas Supreme Court — which political enemies may strip him of his law license for daring to prosecute Planned Parenthood.
SCOTUS Blog: The Supreme Court will consider all ten of the same-sex marriage petitions at its private Conference on November 30, instead of at the next session on November 20, according to the Court’s electronic docket.
LifeNews: Wouldn’t it be great if politicians and other public figures actually told us what they believe rather than talking out of both sides of their mouths? For example, U.S. Supreme Court Justice Ruth Bader Ginsburg actually did say what she believes about life-ending abortions in July 2009. Justice Ginsburg said: Frankly I had thought that, at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.
MLIVE.com: Roane and Thacker, both of whom are gay, are co-chairs of the Lesbian-Gay-Bisexual-Transgender/Alternative Family Committee of the American Academy of Matrimonial Lawyers. The group’s primary target is the federal Defense of Marriage Act, which they say throws a wrench into one state’s ability to honor gay marriage vows that were made in another state or country.
CJOnline.com: Kline has strongly disputed the allegations against him and called the complaint politically motivated. “I upheld my duty, upheld my oath of office and the integrity of my profession,” Kline said. “I will continue to speak and stand for the truth and for those who cannot speak for themselves. My ‘mistake’ was my willingness to investigate politically powerful people and to let that investigation go where the evidence led.”
AP: A potential showdown vote to limit Senate filibusters would not come until January. Democrats are threatening to resort to a seldom-used procedure that could let them change the rules without GOP support, all but inviting Republican retaliation.
Robert Barnes at the Washington Post: Just before Tuesday’s elections, a national gay-rights group sent its supporters in Maryland an e-mail listing an additional reason to go to the polls to approve same-sex marriage. “Justice Anthony Kennedy is watching you,” the subject line said.
Cass Sunstein at Bloomberg: When politicians defer to “universal feeling,” they are often self-interested. Knowing that their electoral lives are on the line, they choose to live. Other politicians defer out of humility. Lacking confidence in their own views, they follow the judgments of their constituents. But in this context, Lincoln was being neither self-interested nor humble. Instead he was emphasizing democratic constraints on the achievement of clear moral imperatives. As he went on to say: “Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed.”
Washington Times: Last month, Scott Lautenbaugh, an Omaha attorney and Nebraska state senator, filed a lawsuit against the Nebraska State Bar Association in federal district court in Omaha. Days later, Mr. Lautenbaugh sought a preliminary injunction and to certify his case as a class action. Mr. Lautenbaugh is an outspoken opponent of the bar’s use of member dues for political and ideological purposes. In fact, he filed a petition with the Nebraska Supreme Court asking that it “de-integrate the bar,” that is, make membership in the bar voluntary.
American Thinker: For example, U.S. Supreme Court Justice Ruth Bader Ginsburg actually did say what she believes about life-ending abortions in July 2009. Justice Ginsburg said: Frankly I had thought that, at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.
Weekly Standard: Hillary Clinton still intends to step down as secretary of state. That will take place likely “days” after President Barack Obama’s second inauguration in January.
FedSoc Blog: On Monday, November 5, SLF, on behalf of another Florida citizen and taxpayer, filed an original action in the Florida Supreme Court asking the Court to issue a writ of quo warranto regarding the actions of Secretary of State Ken Detzner in determining the Justices “qualified” to be placed on the ballot. The argument is not one of conduct, but instead contends that none of the three justices lawfully qualified for the retention election and that the secretary of state failed to properly carry out his constitutional and administrative duties in the matter.
ABA Journal: The American Bar Association has chosen Matt Nosanchuk, associate general counsel at the U.S. Department of Homeland Security, as one of three lawyers to receive its inaugural Stonewall Award, recognizing LGBT advancement in the legal profession.
Wired.com: Supreme Court justices are to meet privately Friday to weigh whether they will hear a major genetic-privacy case testing whether authorities may take DNA samples from anybody arrested for a serious crime.
Billings Gazette: Republican Tim Fox said Wednesday that he will fight what he called the over-reach of federal government as Montana’s next attorney general after winning the post by a six-point margin over Democrat Pam Bucy.
Wall Street Journal (access via Google): The U.S. Supreme Court may soon take up the constitutionality of the Defense of Marriage Act or Prop 8. In the wake of Tuesday’s votes, gay activists are calling for the court to strike down both. The legal merits of those cases are for another editorial. But on the politics, Americans don’t need or want court orders. They’ve shown themselves more than capable of changing their views and the laws on gay marriage the democratic way.
Blog of the Legal Times: Two days after President Barack Obama won re-election, Attorney General Eric Holder Jr. said in remarks today in Baltimore he will assess whether he wants to continue his service at the helm of the U.S. Justice Department.
Ilya Somin at the Volokh Conspiracy: As co-blogger David Bernstein notes, the two of us conducted anonymous online presidential polls of our Constitutional Law I classes. Here are my results, for a poll conducted over the weekend just before election …
AZ Central: Judges are rarely voted off the bench in Maricopa County or in the Arizona appellate courts. And despite a campaign by “tea party” and other conservative groups to unseat certain judges in retention elections because of perceived political or judicial leanings, no judges were turned out this year, either.
Jess Bravin at WSJ: With the incoming leadership of the executive and legislative branches nearly a carbon copy of the current versions, Tuesday’s election could have the biggest effect on the sole unelected branch of government: the federal judiciary.
“States’ Votes for Gay Marriage Are Timely, With Justices Ready to Weigh Cases” | Adam Liptak at NYT
Adam Liptak at NYT: The victories for same-sex marriage on Tuesday, the first ones achieved at the ballot box rather than through courts or legislatures, are evidence of a remarkable shift in public opinion. They are also exceptionally timely data points for the Supreme Court . . . The justices tend to say they are not influenced by public opinion. But they do sometimes take account of state-by-state trends, and the latest developments will not escape their notice . . . “It bolsters our case,” said Brian S. Brown, the president of the National Organization for Marriage. “It’s very difficult to say you need a federal resolution of this question if states are resolving it for themselves.”
NewsOK.com: With President Barack Obama’s victory, the nominations of U.S. Magistrate Judge Robert E. Bacharach and Tulsa attorney John E. Dowdell should “fly through” the Senate, Sen. Tom Coburn said Wednesday.
Columbus Dispatch: Two sitting Ohio Supreme Court justices, one Republican and one Democrat, were unseated in yesterday’s election, marking the first time in recent history that two incumbents were removed from the state’s top court.
Forbes: The decades-long campaign by conservatives to build a lasting majority on the U.S. Supreme Court may come to an end over the next four years, now that President Obama has apparently been reelected to the White House.
Seattle Times: Attorney Sheryl Gordon McCloud wins a six-year term on the state Supreme Court, turning back former Justice Richard Sanders, with King County heavily in her favor.
AL.com: Roy Moore, forever known as Alabama’s Ten Commandments judge, has been re-elected chief justice in a triumphant political resurrection after being ousted from that office nearly a decade ago.
Seattle Post Intelligencer (AP): ustices R. Fred Lewis, Barbara Pariente and Peggy Quince each led about 67 percent to 33 percent with about 80 percent of the precincts reporting.
CNSNews (includes video): Supreme Court Justice Antonin Scalia said recently that–”especially after last term”–he does not know if he is confident the Constitution can be restored to its original meaning.upreme Court Justice Antonin Scalia said recently that–”especially after last term”–he does not know if he is confident the Constitution can be restored to its original meaning.
Religion Clause Blog: While the Presidential contest obviously looms largest at the polls tomorrow, those interested in church-state and religious liberty issues are watching a number of down-ballot issues and contests . . .
Washington Post: In Iowa, the front of the ballot usually contains all of the high profile races for president, Congress, the state house or local offices, like county sheriff. Turn that ballot over, and there’s this question: “Shall the following judges of the Supreme Court be retained in office?” It’s followed by the names of four sitting justices. One of those, Justice David S. Wiggins . . .
A group of concerned attorneys, required by law to be dues-paying members of the Washington State Bar Association, are objecting to the association’s public support for R-74, a measure that seeks to redefine marriage in the state. The lawyers, who do not support R-74, have sent a strongly worded letter to the bar citing the bar’s own rules and a U.S. Supreme Court decision that says mandatory bars can’t take sides on such matters.
Seattle Times: In a letter responding to the members, the board’s president said the organization has consistently found that issues like Ref. 74 do affect the practice of law and the administration of justice. It said Keller does not prohibit the bar from taking positions on any issue, but rather forbids it from using mandatory member fees to support such positions. It offered the attorneys the option of deducting from their dues an amount ranging from 98 cents to $6.40 . . . Bellevue attorney Chris Evans, who wrote the letter on behalf of the others, called the board’s endorsement “mission creep.” | The Washington State Bar Response Letter
Montgomery Advertiser: Earlier this year, almost no one would have expected the race for chief justice of the Alabama Supreme Court to be between Roy Moore, a man who was removed from that position almost a decade ago, and Robert Vance Jr., the well-funded son of a federal judge who was assassinated.
Indiana Public Media: “In 2011, Justice Steven David ruled that Hoosiers have no right to reasonably resist unlawful entry by police officers into their homes,” a radio ad sponsored by the Indianapolis Tea Party says.