Patterico's Pontifications


Supreme Court Scolds 9th Circuit

Filed under: Constitutional Law,Court Decisions,Judiciary,Law — Jack Dunphy @ 8:27 pm

[Guest post by Jack Dunphy]

The Washington Post reports today on a series of recent Supreme Court opinions which overturned decisions by the 9th Circuit. Post writer Robert Barnes informs us:

Sometimes the Supreme Court simply decides cases and sometimes it seems to have something bigger in mind. In the past two weeks, it has been in scold mode, and its target has been the U.S. Court of Appeals for the 9th Circuit.

Barnes goes on to offer a characterization of Judge Stephen Reinhardt that will come as no surprise to regular readers of this blog. Reinhardt, he writes, is “widely considered to be the nation’s most liberal appeals court judge.”

Indeed. Read the whole thing.

–Jack Dunphy


Jan Crawford on Elena Kagan’s First Day

Filed under: Judiciary — Patterico @ 11:28 pm

The report carries no good news for conservatives, but the writing is excellent and memorable:

[S]he showed why many people think she’ll be a true force on the Court: She effectively drew in other the justices with her questions–asking a follow up to a question by Justice Ruth Bader Ginsburg, for example, and then striking true gold by piquing the interest of human jump ball Justice Anthony Kennedy.

“Human jump ball”!! Heh. I’m going to remember that one. Next time I use that, remember where it came from.

When Justice Kennedy perks up and tells a lawyer, ” I want to know your answer to Justice Kagan’s question,” that means one thing. Justice Kagan is having a Very Good Day.

. . . .

Her questions were clear, concise and exactly on point. She pulled together various points other justices were making, and her demeanor was at once sincere and respectful, yet also forceful and confident.

Granted, it was just the first case on the first day. And the case–a technical, somewhat trivial bankruptcy dispute–wasn’t much to speak of. Reading too much into it would be like saying Boise State should be #1 because they beat Virginia Tech to start the season. (Ahem. No.)

But it was a good start for the newest justice. If you’re a liberal who hopes she will be an intellectual force who builds coalitions, you had to like what you saw. And if you’re a conservative, you had reasons to feel nervous.

Yes — especially because Crawford gives it to you straight, and isn’t some crazed liberal wowed by Kagan simply because Kagan is a leftist.

Still. “Human jump ball.” Great stuff.


More on the L.A. Times’s Distortion of Obama’s Judicial Confirmation Statistics

Filed under: Dog Trainer,General,Judiciary — Patterico @ 7:28 am

I e-mailed Ed Whelan my post on the L.A. Times‘s distortion of statistics on judicial confirmation rates. Whelan followed up, and now provides evidence that Carol J. Williams, a reporter who once so badly botched an analysis of a court decision that the paper ran a four-paragraph correction, screwed the pooch again in her recent article where she said:

Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.

Let me turn the bullhorn over to Whelan:

The article’s assertion that President George W. Bush had 87% of his early judicial nominees “confirmed during the first 18 months of [his] administration” struck me as farfetched. And it turns out that it is wildly wrong. Specifically (by my quick count, which may not be perfect but should be very close), President Bush nominated some 112 judges during his first 18 months (32 to the courts of appeals and 80 to the district courts), and 64 of these (13* to the courts of appeals and 51 to the district courts) were confirmed during the first 18 months of his administration. That yields an overall figure of 57%, not 87% (and the figure for the courts of appeals was just under 41%).

I think we’ve reached the point where an e-mail to the Readers’ Representative is called for. Who wants to handle it? If you send anything, copy me.


L.A. Times Misleading Readers Regarding Confirmation of Obama’s Judicial Nominees

Filed under: Dog Trainer,General,Judiciary — Patterico @ 5:35 pm

[Said in the voice of Homer Simpson:] L.A. Times reporter Carol J. Williams. Is there any legal story she can’t screw up?

Times editors have an editorial today that touts a Williams-penned article about the allegedly slow pace of confirmation of Obama’s judges. Both the editorial and the article it cites do, admittedly, acknowledge that part of the problem is Obama’s slow pace of nominations. But they both imply that Republican stalling tactics are at least half of the problem, if not more. The fact is, though, on closer analysis, basically all of the difference between Bush’s and Obama’s rate of confirmations, at this point in time, can be explained by neutral factors having nothing to do with obstructionism.

In particular, one of the their cited experts says that when you compare apples to apples, the confirmation rate is the same.

Not that the editors or Carol J. Williams told you that. You have to come to this blog for that nugget.

First let’s go to the editorial:

With the exception of his two Supreme Court nominees, President Obama hasn’t made a priority of fully staffing the federal judiciary. Meanwhile, Republicans have stalled the appointments Obama has made in an adolescent grudge match with Democrats — which each party blames the other for beginning.

The result, according to an article this week by Times staff writer Carol J. Williams, is that about one in eight federal judgeships is vacant. Overall, Obama has fared worse than other recent presidents in having judicial nominees confirmed by the Senate. According to the White House, at this point in his presidency Obama has had 48% of his nominees confirmed, compared with 60% for George W. Bush and 68% for Bill Clinton.

I admit that I am having trouble reconciling that with Williams’s article, which came out five days ago, and said:

Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.

Hmmm. Obama’s rate was 47% five days ago and 48% today? Stranger still, Bush’s rate was 87% according to the news article, and 60% according to the editorial?? (In the five days since Williams’s article was published, did someone go back and retroactively deny a few Bush confirmations while we weren’t looking??? I wouldn’t put anything past Obama at this point.)

Based on these discrepancies, I admit at this point to lacking confidence in these figures. But whichever figure you choose, it still appears that Bush had greater success in getting his nominees confirmed, right?

Mmmm . . . as it turns out, not so much.

Both the editorial and the article quote Russell Wheeler, a Brookings Institution think-tanker. But they don’t tell you that Wheeler has made several findings this year that completely undercut the L.A. Times thesis that Republican obstructionism is a large part of the problem.

Here is a piece from April 15, 2010, in which Wheeler summarizes conclusions from a lengthier study he has done (.pdf) of Obama’s nominations. Wheeler’s lengthier study sets forth several key findings in the introduction, including these:

proportionately more Obama nominees have gotten hearings, and more quickly;

confirmation rates after four months of the nomination date are slightly higher for Obama’s circuit nominees than for Bush’s, but the time from nomination to confirmation for Obama circuit appointees is considerably higher than for Bush’s

In his summary article, Wheeler sets forth some of the statistics underlying these conclusions. He acknowledges that Obama’s percentage of confirmations “lags behind” the percentage from the George W. Bush administration. But, Wheeler notes:

The Senate Judiciary Committee has scheduled proportionately more hearings for Obama nominees than it had for Bush nominees. Ninety-five percent of Obama nominees who had been sent to the Senate before February have had hearings, versus 61% of comparable Bush nominees. (Hearings for five more nominees are scheduled for Friday, April 16.) And Obama nominees who got hearings got them an average of 42 days from nomination — 48 average days for Obama circuit nominees, versus 145 for Bush circuit nominees.

Confirmation rates, though, are nearly identical — 69% for Obama nominees versus 66% for Bush’s, counting only judges nominated before December of 2001 or 2009.



Judge Keller Reprimanded

Filed under: Judiciary — DRJ @ 12:17 am

[Guest post by DRJ]

The State Commission on Judicial Conduct disregarded the findings of the hearing judge and reprimanded Texas Court of Criminal Appeals Chief Judge Sharon Keller for her actions in the “We Close at 5” death penalty case:

“The State Commission on Judicial Conduct declined to recommend that Keller be removed from office, instead issuing a “public warning” over her behavior in the case of convicted killer Michael Richard.”

Judge Keller’s attorney indicated she will challenge the Commission’s ruling in court.

Prior posts on this story are here, here and here.



Kagan’s “Urkel” Defense of the ACOG Memo

Filed under: Judiciary — DRJ @ 2:32 pm

[Guest post by DRJ]

I posted yesterday on Elena Kagan’s role in releasing an American College of Obstetricians and Gynecologists’ (ACOG) memo on partial birth abortion. Senator Orrin Hatch asked Kagan about the memo today, and Ed Morrissey at Hot Air calls Kagan’s response her Urkel defense:

“If the intent of Elena Kagan’s testimony in the Senate Judiciary Committee is to build confidence in her competence, her answer to Orrin Hatch about a controversial memo has to be a huge step in the wrong direction. Despite the issue having been in the news for the last 24 hours and the centrality of it to the Clinton-era efforts to stop a ban on partial-birth abortion, Kagan initially claimed ignorance of the issue. Only when pressed did Kagan recall her intentions, as Byron York and LifeNews‘ Steven Ertelt both report this afternoon:

“Did you write that memo?” Hatch asked.

“Senator, with respect,” Kagan began, “I don’t think that that’s what happened — ”

“Did you write that memo?”

“I’m sorry — the memo which is?”

“The memo that caused them to go back to the language of ‘medically necessary,’ which was the big issue to begin with — ”

“Yes, well, I’ve seen the document — ”

“But did you write it?”

“The document is certainly in my handwriting.”

In other words, it’s more or less an Urkel defense of saying, “Did I do that?”

There’s more, so read the whole thing.



Coburn, Kagan, and “Eat Your Vegetables”

Filed under: Judiciary — DRJ @ 10:34 pm

[Guest post by DRJ]

Senator Tom Coburn asked Elena Kagan if the Commerce Clause allows the government to compel Americans to eat certain foods. I think her answer was “Maybe” but decide for yourself.


Is This the Kagan Smoking Gun?

Filed under: Abortion,Judiciary,Politics — DRJ @ 7:32 pm

[Guest post by DRJ]

NRO’s Shannen W. Coffin has a major story that impacts the Kagan confirmation hearings, and PowerLine’s John Hinderaker summarizes it: While working in the Clinton White House, Elena Kagan was apparently responsible for getting the American College of Obstetricians and Gynecologists (ACOG) — “a supposedly nonpartisan physicians’ organization” — to replace its initial statement on partial birth abortion:

[ACOG] “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”

With the following statement:

[The partial-birth-abortion procedure] “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Read both links for the details of Kagan’s role in producing the ACOG statement, a role that Hinderaker says could be a “gigantic scientific deception:”

“Unless there is some other interpretation of these documents that does not occur to me, it appears that Elena Kagan participated in a gigantic scientific deception. On behalf of the Clinton White House, she deliberately subverted what was supposed to be an objective scientific process. The ACOG report was certainly seen in that light by the federal courts. Federal Judge Richard Kopf was deeply impressed by the scientific integrity of the report; he wrote:

“Before and during the task force meeting,” he concluded, “neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed” in the ACOG statement.

This statement was obviously false. The federal courts were victimized by a gross deception and a perversion of both the scientific process and the judicial process, carried out, the evidence appears to show, by Elena Kagan.”

Hopefully Senator Lindsey Graham and his Republican colleagues on the Judiciary Committee are reading and listening.


Elena Kagan on Law and History

Filed under: Judiciary,Second Amendment — DRJ @ 12:43 pm

[Guest post by DRJ]

CBS News reports on Day 2 of the Elena Kagan hearings regarding Senator Grassley’s questions about the Second Amendment. Kagan pointed out the McDonald decision was “based so much on history” and stated the Court has decided gun ownership is a fundamental right that is “good precedent going forward.”

All case law is precedent but that won’t stop the Court from changing it if the Justices think it’s wrong. That’s especially true here, where Kagan characterizes the decision as “based so much on history” — presumably as opposed to the law. Kagan reinforces the idea that the decision isn’t based on law when she adds the italicized qualifier: “The [McDonald] case is based so much on history, which I’ve never had the occasion to look at.”

Kagan is a lawyer, a law professor and a former Law School Dean. If she’s never looked at the history of gun rights and the Second Amendment, it’s either because she has no interest in the subject or it’s because she thinks history is not required to decide a Second Amendment legal question. I think the latter is more likely.

Thus, this may be what Kagan is really saying: A judge is not required to know about history to decide a legal question, and a legal decision based on history instead of law can be wrong.


Feinstein on Judicial Inexperience, Then and Now

Filed under: General,Judiciary — Patterico @ 7:12 am

Dianne Feinstein, February 10, 2003:

Miguel Estrada has never been a judge. So we have no record of judicial decision-making to examine. This is not dispositive in itself, but it is the first area where we find no record to help us in our decision.

Mr. Estrada is not a prolific writer. So we have no real record of writing to examine. Again, this alone would not be dispositive, but it is strike 2 in terms of where we can get information about this nominee.

We have not been granted access to the memos he wrote at the Department of Justice. So we can only take the word of the man who supervised him that those memos were ideologically driven and that he could not be trusted.

Elena Kagan has never been a judge. She is not a prolific writer. We have not seen her internal memoranda and correspondence from when she was Solicitor General.

And so we see in the L.A. Times yesterday:

Sen. Dianne Feinstein (D-Calif.) called Kagan’s lack of judicial experience “refreshing,” . . .

It’s just too easy. And I’m sure you could find examples of hypocrisy running the other way, too.

It’s the kind of thing that makes you long to watch actual kabuki theater.

If you’re interested in the snoozefest that is the Kagan confirmation, Jan Crawford has a number of videos at her Facebook page covering this and the gun rights case from yesterday. Check them out.

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