Category Archives: politics

What Kind of Judge Is Amy Coney Barrett?

By David B. Rivkin Jr. and Andrew M. Grossman

Sept. 26, 2020, in the Wall Street Journal

It speaks volumes that the early opponents of Judge Amy Coney Barrett’s confirmation have almost nothing to say about the work that has defined her career. Her scholarly and judicial writings place her at the center of the mainstream consensus on the judge’s role as an arbiter, not a lawmaker, who abides by the duty to enforce the law as written.

“A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference,” she wrote in a 2017 article, shortly before she took the bench. That requires “fidelity to the original public meaning, which serves as a constraint upon judicial decisionmaking.” Judging also requires humility, to guard against “the feeling of infallibility” that often tempts judges to stray from the law. After all, “courts are not always heroes and legislatures are not always villains. They are both capable of doing good, and they are both capable of doing harm.” Ultimately, “the measure of a court is its fair-minded application of the rule of law.”

Her opinions for the Seventh U.S. Circuit Court of Appeals show skilled legal craftsmanship and sensitivity for the people whose rights are at stake. Among her most influential decisions is Doe v. Purdue University(2019), on the rights of college students accused of sexual assault. The case involved a male student who was suspended from school and expelled from ROTC based on his girlfriend’s accusation that he had groped her while she slept. He disputed the charge, but the university refused to disclose the evidence against him, to consider exculpatory evidence, and to interview witnesses—even the accuser, whose account it deemed more “credible” than his. All this was “fundamentally unfair,” Judge Barrett concluded, falling “short of what even a high school must provide to a student facing a days-long suspension.”

The male student alleges that the university “tilted the process against men accused of sexual assault” to comply with since-rescinded U.S. Education Department guidance, and thereby discriminated against him on the basis of sex in violation of Title IX. Judge Barrett’s decision, joined by two other female judges, allows that claim to go foward.

What’s notable about the opinion is Judge Barrett’s skill in working through the complexities of the parties’ arguments—which involved disputes over technical legal matters such as standing and remedies, among many others—without losing sight of the bigger picture. Her decision was not an unalloyed win for the male student, who lost on his claim for money damages. But the persuasive force of its reasoning made it an instant landmark in the wave of litigation sparked by the 2011 Education Department guidance. More than half the courts of appeals and dozens of district-court cases have already cited it.

Judge Barrett brought the same analytical acumen to bear in Kanter v. Barr (2019). Her dissenting opinion is an originalist tour de force on the Second Amendment’s application to “felon dispossession” laws, which restrict gun ownership by convicted criminals. The majority held that the government may categorically strip even nonviolent felons of Second Amendment rights. Judge Barrett took a narrower view based on the amendment’s text and history.

Surveying laws and practice around the time of the amendment’s framing in the late 18th century, she found support only for keeping weapons from those deemed dangerous and likely to misuse them. That category, she concluded, is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness”—like the plaintiff, who had been convicted of mail fraud, or hypothetical felons convicted for “selling pigs without a license in Massachusetts” or “redeeming large quantities of out-of-state bottle deposits in Michigan.”

In U.S. v. Watson (2018), a Fourth Amendment case, the court considered whether police had reasonable suspicion to block a parked car based on an anonymous report that “boys” were “playing with guns” nearby. Judge Barrett, writing for a unanimous panel, concluded they didn’t. Because Indiana law permits carrying a firearm in public without a license, that tip didn’t create a reasonable suspicion of a crime, even if it might have been prudent for police to visit the scene and speak with those involved voluntarily. Judge Barrett rejected out of hand the government’s argument that a more forceful response could be justified based on the locale: “People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods.”

Judge Barrett has also been sensitive to the needs of law enforcement. In Sanzone v. Gray (2018), she joined two other judges in an unsigned opinion holding that officers were entitled to qualified immunity from money damages when a suspect pointed a gun at officers immediately before he was shot. But she has also denied immunity in a series of cases in which officers allegedly lied or fabricated evidence in warrant affidavits. Her decisions hew close to the facts and the law, neither deferring to law enforcement nor accepting unfounded claims of abuse.

Judge Barrett has been especially attuned to overreaching by administrative agencies. She joined several opinions declining to defer to government agencies’ interpretations of their own regulations—a controversial doctrine known as Auer deference, which four Supreme Court justices said last year they were prepared to overturn.

She has also been aggressive in scrutinizing agencies’ factual determinations, particularly in Social Security cases. If C.S. Lewis was right that “integrity is doing the right thing even when no one is watching,” then these decisions deserve special appreciation, because they hold the government to its burden when the outcome matters to no one but the litigants.

A final illustration of Judge Barrett’s temperament and discernment can be found in two decisions on immigration law. In Cook County v. Wolf (2020), she dissented from a panel opinion blocking the Trump administration’s “public charge” rule, which restricts admission of aliens likely to depend on public benefits. Her dissent was vindicated when the Supreme Court stayed the injunction. In Morales v. Barr (2020), however, she wrote a ruling against an administration policy preventing immigration judges from “administratively closing,” and thereby delaying, deportation cases. While the two opinions differ in their bottom-line results, what they share in common is diligent and faithful statutory analysis following the example of Justice Antonin Scalia, for whom Judge Barrett clerked.

Judge Barrett’s body of work shows her to be independent, discerning, diligent and fair. That’s why her opponents are likely to resort to personal attacks.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/what-kind-of-judge-is-amy-coney-barrett-11601154273

Why the ‘Biden Rule’ Doesn’t Apply in 2020

By David B. Rivkin, Jr., and Andrew M. Grossman

19 September 2020 in the Wall Street Journal

The week after President Jimmy Carter lost his 1980 re-election bid, he announced the judicial nomination of a close ally of Senate Judiciary Committee Chairman Ted Kennedy. The nomination sailed through the Senate, which confirmed the First U.S. Circuit Court of Appeals judge 80-10 less than a month later, six weeks before Inauguration Day. That nominee, Stephen Breyer, now sits on the Supreme Court.

Justice Breyer’s second nomination, in 1994, got more attention, but his first in 1980 neatly illustrates a constitutional principle: The president’s authority to make judicial nominations, and the Senate’s power to weigh them, is unaffected by the electoral calendar.

Minutes after the news broke Friday that Justice Ruth Bader Ginsburg had died, Senate Minority Leader Chuck Schumer declared his opposition to considering any nominee “until we have a new president.” The argument is an appeal to precedent; Mr. Schumer’s tweet was lifted from a statement by Majority Leader Mitch McConnell after Justice Antonin Scalia’s death in February 2016.

Then, the Senate withheld its consent from President Obama’s nominee, Judge Merrick Garland. Mr. McConnell’s rationale was that the voters should have a say in selecting the next justice. Put aside that Mr. Schumer and his caucus were on the other side of the issue four years ago. The important question is: What’s the right precedent?

It isn’t 2016. In the realm of Supreme Court nominations, practice has long followed principle. Twenty-five times presidents have made nominations to fill Supreme Court vacancies that arose in presidential election years, and 21 times the Senate confirmed the nominee. The general rule is that when there is a vacancy on the nation’s highest court, the political branches will fill it.

At the same time, the Senate has long observed a narrow exception to that rule—one also guided by constitutional concern—and that’s what was in play in 2016. When the nation chooses a president and a Senate, it makes its choice about who wields the power and bears the responsibility to pick and confirm judges. But when the president and Senate have divergent views on judges and judicial philosophy, there’s no clear mandate on what kinds of judges ought to be confirmed. For well over a century—the last exception was Chief Justice Melville Fuller in 1888, during President Cleveland’s first term—the Senate hasn’t confirmed a Supreme Court nominee chosen in an election year by a president of the opposite party. That’s why, in 2016, Mr. McConnell let voters break the stalemate.

This exception was popularized in 1992 by Sen. Joe Biden, then chairman of the Judiciary Committee. He urged President George H.W. Bush to refrain from making any Supreme Court nominations in that election year. What made 1992 different from other election years, Mr. Biden explained, was that “divided Government” reflected an absence of a “nationwide consensus” on constitutional philosophy. “Action on a Supreme Court nomination must be put off until after the election campaign is over,” the future vice president insisted. No vacancy arose until 1993, when Bill Clinton was in the White House and Ginsburg’s nomination easily passed a Democratic Senate. But the Biden rule fit 2016 to a tee.

It’s especially ill-suited to 2020. Not only does the same party control the White House and the Senate, but the 2016 and 2018 elections were both unusually focused on the issues of constitutional philosophy and judicial selection, owing to the Scalia vacancy and the Democrats’ smear campaign against Brett Kavanaugh. The voters made their choice, sending Donald Trump to the White House with his list of prospective nominees and a Republican majority to the Senate. There’s no stalemate for the voters to break this time around.

There’s not even a serious debate over judicial philosophy. Mr. Trump has maintained and expanded his list of prospective nominees, but Mr. Biden refuses to release one. That reflects the reality that, while Democrats bemoan the originalist bent of Mr. Trump’s picks, they embrace no competing doctrine, only the insistence that judicial power be wielded to achieve their political ends. Their instant opposition to any Trump nominee is of a piece: the exercise of power divorced from principle.

Another bit of history: In 1980, Mr. Biden voted to confirm Judge Breyer.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/why-the-biden-rule-doesnt-apply-in-2020-11600545795

There was nothing unlawful or improper about Trump’s acceptance speech

By David B. Rivkin, Jr., and Lee A. Casey

30 August 2020 in The Hill

The talking heads and pundits attacking President Trump for giving his Republican National Convention acceptance speech from the White House lawn need to actually read the law. The Hatch Act is a precisely written statute — as is appropriate for a law that limits the indisputable First Amendment rights of federal workers — and it supports the president.

First and foremost, the Hatch Act explicitly exempts the president and vice president from its strictures. It defines “employee,” to which the Hatch Act’s restrictions apply, as someone “other than the President or Vice President.” This is constitutionally required because the president is a co-equal branch of the federal government and Congress can no more limit or restrain his political activities than he could limit theirs.

As a result, President Trump was entirely within his legal rights to give his acceptance speech from the South Lawn of the White House. And any members of the White House staff who may have assisted and supported the president on Thursday night also were in compliance with the Hatch Act.

Although the Hatch Act prohibits a wide swath of federal workers — including many of the individuals who work in the White House — from engaging in political activities while on duty or “in any room or building occupied,” the White House lawn is not such a room or building.  Had Congress intended to extend Hatch Act restrictions to entire government installations or compounds, it could and would have said so.

In addition, there is a further exemption from the relevant Hatch Act restrictions for White House staff members whose work and responsibilities continue beyond normal working hours and while on travel — which includes many if not most of them. These individuals are permitted to engage in political activities while on duty and in a federal room or building, as long as “the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.” The president has stated that the Republican National Committee would be picking up the tab for his White House event (and the fireworks afterwards).

Similarly, the attacks on Secretary of State Mike Pompeo for delivering a convention speech from Jerusalem, endorsing President Trump’s reelection, are similarly misplaced based on these same provisions.  In addition to exempting senior White House staff from Hatch Act restrictions on political activities while on duty or in a federal building, Section 7324(b) of the Hatch Act also exempts federal officials who are confirmed by the Senate and who “determine[] policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws.” This language includes, at a minimum, the Secretary of State, the Attorney General, and other members of the president’s cabinet.

Such officials cannot, of course, use their “official authority or influence” to affect an election’s result, but the State Department has made clear that Secretary Pompeo spoke in his private capacity from Israel, not as secretary. Consequently, his speech was entirely consistent with his legal and ethical responsibilities.

Indeed, to the extent that Secretary Pompeo’s critics claim that he has somehow acted unethically or improperly, even if not illegally, it is significant that Congress itself made clear, in the Hatch Act’s first section, that federal employees — which includes cabinet members — “should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation.” The Hatch Act is a technical law to be applied as far as it goes and no further.

Finally, using the White House as a campaigning site is far from unprecedented. Jimmy Carter is said to have coined the phrase “Rose Garden Campaign,” complaining in 1976 that President Ford was taking advantage of the White House as a backdrop for his campaign. Then, in 1980 — facing economic disaster, the Iran hostage crisis and candidate Ronald Reagan, President Carter fell into the same strategy. Of course, it is only fair to note that the Rose Garden strategy did not turn out well for either sitting president in 1976 or 1980.

But, there was nothing unlawful or improper about Presidents Ford and Carter using the White House grounds to help their campaigns then, and there is nothing improper about President Trump using it now.

David B. Rivkin Jr. and Lee A. Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://thehill.com/opinion/judiciary/514192-there-was-nothing-unlawful-or-improper-about-trumps-acceptance-speech