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William C. Duncan at National Review: This morning, just a few minutes after the last submission from the State of Utah had been received, the U.S. Supreme Court ordered a stay of a trial-court judge’s mandate that marriage licenses be issued to same-sex couples.
Blog of the Legal Times: Clement appeared on Capitol Hill today next to Sen. Ron Johnson (R-Wis.), who filed a federal lawsuit today challenging an Office of Personnel Management rule regarding health coverage for members of Congress and staff.
Cortney O’Brien at Townhall: While the process may seem cumbersome, a recent report from Arizona revealed that these abortion-granting court orders are fairly simple to obtain. Judges approved nearly 75 percent of judicial bypass requests. Jason Walsh, the executive director of Arizona Right to Life, responded to the alarming statistic.
Profs. John McGinnis & Michael Rappaport at the Volokh Conspiracy: We are very happy to be blogging at the Volokh Conspiracy about our new book, Originalism and the Good Constitution, which has just been published by Harvard University Press. We want to thank both Eugene and the other Conspirators for the opportunity to offer our views on originalism.
Stephen Wermiel at SCOTUS Blog: Noticeably absent from the Supreme Court’s line-up of high-profile decisions in recent Terms is the issue of abortion. Presumably it is just a matter of time.
Andrew Cohen at the Atlantic: Last year’s big legal stories, its constitutional themes, won’t recede as quickly as other big legal stories and themes have seemed to fade over the years. Americans will continue to fight over same-sex marriage, voting rights, affirmative action, and many other issues (like the provision of health care) that involve the essence of equality.
The Hill: West Virginia Attorney General Patrick Morrisey wrote the letter, which was signed by his counterparts in Alabama, Georgia, Idaho, Kansas, Louisiana, Michigan, Nebraska, Oklahoma, Texas and Virginia.
Unauthorized Class Action Sought Millions For Denial of Religious Freedom and Right To Marry By Utah and LDS Church
Religion Clause Blog: The complaint (full text) in Winburn v. State of Utah, (D UT, filed Dec. 27, 2013), describes the LDS Church as “an entity of defendant State of Utah,” and alleges violations of the Fair Debt Collection Act, the Utah Pattern of Unlawful Activity Act and intentional infliction of emotional distress. It seeks damages of at least $25,000 for each class member.
Todd Zywicki at Volokh Conspiracy: For private schools, these data are difficult to uncover, but the University of Baltimore report corroborates a widely held view that universities in general impose a “tax” amounting to between 20 and 25 percent of their law schools’ gross revenues.
San Francisco Chronicle: Legal reporters with time on their hands sometimes leaf through U.S. Supreme Court rulings and see things they’ve never noticed before. Like Justice Samuel Alito’s putdown of San Francisco’s former chief federal judge, Vaughn Walker, for his ruling on same-sex marriage.
Deseret News: Just moments after being sworn in Monday, Attorney General Sean Reyes told reporters the state is ready to file a request with the U.S. Supreme Court for a stay in the federal court ruling striking down Amendment 3.
Mark Walsh at ABA Journal: In NLRB v. Noel Canning, the justices will consider whether the president’s recess-appointment power applies to intersession or intrasession position vacancies, or both.
Las Vegas Review Journal: The strength of incumbency is enormous, but it seems to be the most powerful when it involves the Nevada Supreme Court. The two justices up for re-election are not expected to draw any opponents in 2014.
Deseret News: The essence of judicial tyranny is when a single, unelected federal judge declares the laws and constitution of an entire state null and void with an opinion clothed in the barest of legal precedent. Late on Friday afternoon, U.S. District Judge Robert J. Shelby overstepped judicial bounds, ignored the weight of settled precedent and insulted Utah’s electorate by striking down Amendment 3 to Utah’s Constitution, the provision that defines marriage as between one man and one woman.
Russell Wheeler at the Brookings Institute: Changing Composition of Court of Appeals Obama, in terms of the party of the president who appointed circuit judges in active status, has not able to put as much of an imprint on the courts of appeals as did Bush by the end of his fifth year. Obama had a circuit confirmation rate about the same as Bush’s, but Bush inherited an appellate judiciary split evenly between Republican and Democratic appointees, with 26 vacancies. He was able by the end of 2005 to shift that split to 59 percent Republican appoints (and 60 percent by the end of eight years). Obama inherited that 60-40 split. At the end of 2013 it slightly tilted to Democratic appointees (52% to 48%). (Table 12) In 2009, seven courts of appeals had a majority of Republican appointees among their active status judges. Today, seven of them have Democratic-appointee majorities.
Robert Barnes at Washington Post: “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here,” Scalia wrote.
NY Times: For a judge who would go on to make same-sex marriage legal in Utah, a deep-red state where streets in the capital are numbered by their distance from the Mormon temple, Robert J. Shelby arrived on the bench with enthusiastic praise from Republican leaders.
KSL.com: The price tag for hiring outside counsel to defend Utah’s voter-approved constitutional amendment on marriage is expected to be close to $2 million, money that key GOP lawmakers are willing to spend.
National Law Journal: The University of Kansas School of Law must pay a $50,000 fine for admitting two foreign attorneys into a new LL.M. program that the ABA had not approved.
Daily Journal (AP): White House officials said in a statement Thursday that U.S. District Court Judge for the Northern District of Georgia, Julie E. Carnes, has been nominated to serve in the court of appeals.
Dallas Morning News: Ending a long drought for Texas judicial picks, President Obama has decided to elevate federal judge Gregg Costa of Galveston to the 5th Circuit Court of Appeals, a White House aide said Thursday.
The Hill: Sen. Tom Coburn (R-Okla.) on Thursday criticized Senate Democrats for moving to confirm a Department of Homeland Security (DHS) official who is currently under investigation for abusing his current position, something the Senate was preparing to do early Friday morning.
Maureen O’Connor of OH Supreme Court at LA Times: One of the top federal appeals courts this month took a major step forward in opening the historically opaque federal judicial system to the public by expanding the use of cameras. When will the Supreme Court follow suit and finally allow cameras in its courtroom?
The Hill: Senate Republicans will let their rank-and-file members leave town for the Christmas break, leaving Democrats to vote around the clock to confirm the latest batch of President Obama’s nominees.
George F. Will at Washington Post: To contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.”
USA Today: Obenshain’s concession means Democrats in Virginia will now hold all statewide offices for the first time since 1970, in a sign that there is more blue being injected into the swing state’s purple tinge.
Ilya Somin at Volokh Conspiracy: The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here.
Blog of the Legal Times: In the case Hodge v. Talkin, the department is urging the circuit court to restore the law banning assemblages, processions and displays on court property, 40 U.S.C. 6135.
National Law Journal: According to figures released by the American Bar Association, law schools enrolled 39,675 new students this fall—an 11 percent decrease from the 44,481 students who enrolled last fall.
The Hill: Stinging from Senate Democrats’ gutting of the filibuster, Senate Republicans will use their private caucus lunch Tuesday to decide on their strategy for holding back a string of nominees.
Religion Clause Blog: In Canada, Trinity Western University, a Christian liberal arts university in British Columbia, cleared a major hurdle this week in its bid to open the country’s first private religious law school. In a December 16 press release, the Federation of Law Societies of Canada announced that it has granted preliminary approval for the school’s program
AP: Herbert says while he had not had a chance to review U.S. District Judge Clark Waddoups’ ruling, he’s “always a little concerned” when public policy changes are made by the courts.
NRO Bench Memos: While you were (hopefully) sleeping last night, the Senate voted 51–44 to confirm the nomination of Cornelia Pillard, one of President Obama’s most controversial judicial nominees. Red-state Democrats had to make a choice at the vote shortly before 1 a.m.: Would they represent their constituents at home, or continue to vote in lockstep with the president under cover of night?
Blog of the Legal Times: The Senate confirmed Georgetown University Law Center professor Cornelia “Nina” Pillard to the U.S. Court of Appeals for the D.C. Circuit early this morning, amid escalating political bickering over a rules change that allowed for the vote. The 51-44 vote finished at about 1:15 a.m. . . .
One News Now: “The court of appeals in the D.C. Circuit is one of the most powerful courts in the nation because it gets to pass upon the rules that come out of the Executive Branch, all of the administration’s rulings and opinions,” explains attorney Harry Mihet of Liberty Counsel.
Nebraska Judicial Commission won’t investigate judge who told 16 year old abortion would “kill the child inside you”
JournalStar.com: The state commission that oversees judges has refused to investigate one who told a 16-year-old state ward seeking to terminate her pregnancy that having an abortion would “kill the child inside you.”
AP: President Barack Obama’s choice to head the Internal Revenue Service goes before a Senate committee Tuesday to face tough questions about the agency’s targeting of tea party groups and its ability to administer parts of the president’s health law.
AP: The Senate voted 56-38 to approve Washington lawyer Patricia Millett’s nomination to the U.S. Court of Appeals for the District of Columbia.
National Review Bench Memos: For starters, the filibuster is a red herring. Cohen claims “dozens” of Obama nominees have been stopped by the filibuster; in fact, there have been only eight successful filibusters during all of Obama’s tenure in the White House, for six different nominees. One of those was later confirmed. That’s a total of five nominees blocked by the filibuster. Meanwhile, 209 Obama nominees have been confirmed.
USCourts.gov: Twenty-five years ago, computers were hurtling America into the Information Age. From 1987 to 1989, the nation’s PC sales tripled, as consumers gained unprecedented power to process words, crunch numbers and print documents at home. The World Wide Web was still being invented, but early adopters were discovering personal email.
Journal-Sentinel: State Supreme Court Justice Patience Roggensack contacted Republican state senators urging support of an amendment to the state constitution that could put her in charge of Wisconsin’s high court.
Blog of the Legal Times: As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on November 25 for additional time on behalf of his client Sen. Mitch McConnell, (R-Kentucky) and 44 other senators who object to Obama’s appointments.
AP: Fresh from shackling the traditional blocking ability of the Senate’s minority party, Democrats are ready to muscle through President Barack Obama’s nominees for pivotal judgeships and other top jobs.
Politico: The nominees that top Democrats are racing to approve are: Janet Yellen to lead the Federal Reserve, Jeh Johnson to lead the Department of Homeland Security, Rep. Mel Watt (D-N.C.) to oversee the Federal Housing Finance Agency and D.C. Circuit judicial nominees Patricia Millett, Nina Pillard and Robert Wilkins.
Tom Goldstein at SCOTUS Blog: Things get more complicated when the Court grants review in two consolidated, related cases, but the interests of the respective petitioners and respondents don’t correspond — for example, if the government is the petitioner in one case but the respondent in the other. How should the case be briefed then? That issue has come up in the two cases the Justices have agreed to hear presenting challenges to the “contraceptive insurance” Rule of the Department of Health and Human Services under Affordable Care Act: No. 13-354, Sebelius v. Hobby Lobby Stores (the government is the petitioner, the plaintiffs are the respondents); and No. 13-356, Conestoga Wood Specialties v. Sebelius (in which the roles are reversed).
Ken Klukowski at Breitbart: Winning a battle that costs you a war is no victory. The silver lining from President Obama’s and Senate Democrats’ unprecedented power grab last week is that now a conservative Republican president can appoint a Supreme Court that will restore the Constitution to its historical place in our nation’s life, revitalizing limited government and safeguarding fundamental rights.
Real Clear Politics: Thank you, Mr. Chairman. The danger is quite severe. The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid. That is the concentration of power in every single branch.
McCall: The Easton Area School District on Tuesday urged the U.S. Supreme Court to consider whether a ban on the phrase “I ♥ boobies!” violates the First Amendment. In a 217-page filing, district solicitor John E. Freund contends a federal appeals court overstepped its bounds in deciding that the popular rubber wristbands worn by two middle-school girls are appropriate for school.
The Hill: Nonetheless, allies of the White House predict a “good chunk” of their priority nominees will clear before the Senate concludes its final two weeks of work in 2013. Here are the nominations Obama wants the most.
Public Information Office of the Ninth Circuit: Internet users will soon have a seat in the courtroom when exceptionally important cases are argued before the United States Court of Appeals for the Ninth Circuit.
Adam Liptak at NY Times: Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.
Volokh Conspiracy: Last week, I joined with Michael Ramsey (San Diego) Michael Rappaport (San Diego), Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason) on an amicus Brief of Originalist Scholars in NLRB v. Noel Canning.
LifeNews: “Early in the 2010 election cycle WyWatch warned voters that then Gubernatorial Candidate Matt Mead was not pro-life,” Becky Vandeberghe, the chair of the WyWatch PAC told LifeNews today. “Today he solidified that perception in thousands of pro-life voters’ minds when he publicly announced he has appointed previous NARAL Attorney and advocate, Kate Fox to the Wyoming Supreme Court.”
Jeremy W. Peters at NY Times: Within hours of each other, two federal appeals courts handed down separate decisions that affirmed sharp new limits on abortion and birth control. One on Oct. 31 forced abortion clinics across Texas to close. The other, on Nov. 1, compared contraception to “a grave moral wrong” and sided with businesses that refused to provide it in health care coverage.
Robert Barnes at Washington Post: Instead of the usual 12 cases that the court has been hearing in recent years during its two-week block of oral arguments, the justices have only seven scheduled for what the court calls the February sitting .
Detroit Free Press: But the Michigan Attorney General’s Office is arguing that immunity shouldn’t stop its suit to block the Bay Mills tribe from opening a casino outside tribal lands, because the federal government has, so far, declined to act.
How Appealing links to the report and several filings in connection.
Bloomberg: One day I hope some young turk’s lawsuit complaining about an unpaid internship makes it all the way to the U.S. Supreme Court, because there it would put a spotlight on a great irony: The Supreme Court has unpaid interns, too.
Ed Whelan at National Review Online: There is in fact no reason to believe that any of the nominees is genuinely a moderate. For example, Patricia Millett, supposedly the most moderate of the three, is a member of the board of trustees of the left-wing Lawyers’ Committee for Civil Rights Under Law.
Washington Post: White House aides and their allies said they have yet to finalize plans for how to push through another 186 executive nominees and 50 judicial nominees awaiting confirmation in the Senate.
Washington Post: The gradual diminishment of the filibuster is inevitable now that Democrats have set off the “nuclear option,” experts say, and that could have much broader ramifications down the line. “From here on in, the filibuster is likely to be eroded, bit by bit,” Michael Mezey, political scientist at DePaul University, said Friday in an email.
Bipartisan approval lends a sense of balance to the judiciary | J. Harvie Wilkinson III at Washington Post
J. Harvie Wilkinson III at Washington Post: It is far beyond my purview to comment on the impact last week’s events will have on the Senate as an institution, but the impact on the institution of the federal courts will, over time, be severe. A return to bipartisan understandings in the judicial nominations process would help to keep the courts above political rancor and would serve this country well.
Wall Street Journal: The federal judiciary, already ideologically polarized over contentious legal questions, may see the divide grow deeper after the Senate voted Thursday to permit confirmation of lower-court nominees by simple majority vote.
When the Swing Justice Doesn’t Swing: Rumors of Anthony Kennedy as a moderate on abortion are wildly overblown.
David S. Cohen at Slate: The so-called swing justice, Anthony Kennedy, has voted to strike down only one of the 21 abortion restrictions that have come before the Supreme Court since he became a justice.
Blog of the Legal Times: Sherry Trafford of the Public Defender Service for the District of Columbia and Steven Wellner, an administrative law judge in the D.C. Office of Administrative Hearings, were nominated last night.
Will Baude at Volokh Conspiracy: What has the Senate actually done so far, with respect to the filibuster? Some of the reports of what happened today say that the Senate has adopted “new rules” eliminating the filibuster for some purposes. I’m not sure that’s true, in a formal sense. As I understand what happened, the Senate voted to ignore the current filibuster rule (on constitutional grounds). It did not vote to change it.
Jonathan Adler at Volokh Conspiracy: In May 2005, the NYT editorial board insisted that the filibuster of judicial nominations was “part of the Senate’s time-honored deliberative role and of its protection of minority rights.” Invocation of the “nuclear option,” the Times insisted, would “desecrate” this tradition. “The damage would be incalculable,” the Times warned.