Tag Archives: Andrew M. Grossman

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student alleges that the university “tilted the process against men accused of sexual assault” to comply with since-rescinded U.S. Education Department guidance, and thereby discriminated against him on the basis of sex in violation of Title IX.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

Shut up, they advised

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

4 February 2019 in the Wall Street Journal

At a time the First Amendment rights of free speech and association are under assault, it’s disheartening to see the judiciary getting in on the act. At issue are the judge-made rules governing judges themselves. A draft advisory opinion circulated last month by the Committee on Codes of Conduct of the U.S. Judicial Conference recommends new restrictions on the First Amendment rights of federal judges as well as their law clerks and staff attorneys. The opinion is unconstitutional, and a sloppy bit of judging to boot.

The committee, made up of 15 jurists, proposes to bar judges and their staffers from membership in the Federalist Society and the liberal American Constitution Society. The opinion reasons that a judge’s impartiality and independence could reasonably be called into question if he belongs to what the committee deems ideological “advocacy groups.” But the committee provides no clear guidance as to which other groups are forbidden. It says only that judges remain free to join the American Bar Association but must avoid the Federalist Society and the ACS.

Federal judges aren’t stripped of their constitutional rights before donning their robes. Yet the opinion takes no account of the First Amendment at all. If it did, its authors would have been obliged to subject their ruling to “heightened scrutiny”—which means, among other things, that the government may impose limits only to achieve a compelling interest. Safeguarding public confidence in the fairness and integrity of the judiciary qualifies—but that’s not the end of the test.

Inconsistent restrictions, as the Supreme Court has put it, invariably raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” And inconsistency abounds in the draft opinion.

The Committee gives a pass to the ABA even though it advocates positions that line up consistently with those of the Democratic Party through its official resolutions, lobbying, grass-roots advocacy and friend-of-the-court briefs.

The basis for that approval appears to be that the ABA has a “judicial division,” whose members, its bylaws assert, “will not be deemed to endorse” the association’s “positions and policies.” Perhaps the Federalist Society or ACS could overcome the ban by creating a similar judicial division—though the committee doesn’t say. But that would be meaningless for the Federalist Society, which doesn’t lobby or take positions on policy or political candidates. Its purpose is to facilitate open debate, allowing voices and perspectives often shut out of legal academia to be heard. For the society to adopt a special disclaimer for judicial members would be tantamount to confessing falsely that it has been misrepresenting its true purpose.

The committee also asserts that the ABA “is concerned with the improvement of the law in general and advocacy for the legal profession as a whole,” while the Federalist Society and ACS are not. Such favoritism should raise a red flag. Decades of case law condemns viewpoint-based discrimination by the government that favors one group over others.

The Supreme Court stated the rule plainly in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

The rule’s application here is clear: The committee may not play favorites, approving organizations because it thinks their views foster “improvement.” To avoid viewpoint discrimination while banning the Federalist Society and ACS, the committee would have to paint with a much broader brush, proscribing not only the ABA but also state bar associations (membership in which is often mandatory for those practicing law), affinity bars like the National Association of Women Lawyers and the Hispanic National Bar Association, and perhaps even churches—all of which take positions on issues that come before federal judges.

That would be foolish as well as unconstitutional. The Judicial Code of Conduct recognizes that “a judge should not become isolated from the society in which the judge lives” and that blocking judges from participation in civil society “is neither possible nor wise,” given their “unique position to contribute to the law, the legal system, and the administration of justice.” A viewpoint-neutral ban would run afoul of First Amendment tailoring requirements, which demand that a restriction’s scope be the minimum required to fulfill the government’s stated interest. Requiring judges to be monks is a step too far.

The Committee’s speech- and association-censoring approach simply cannot be reconciled with the First Amendment. So why not stick with the status quo, which focuses on impartiality? Its virtues include neutrality, familiarity, and appropriate deference to a federal judiciary that has proven its integrity and good sense through its conduct and the esteem in which it is held.

Federalist Society members have served as federal judges and law clerks for nearly 40 years without a serious suggestion of ethical impropriety. During that period nothing has changed about the organization’s activities or its purpose. What has changed is that it now faces regular attacks from political actors seeking to achieve their own ends by spreading falsehoods about a public-spirited organization. It is dismaying enough to see a committee of federal judges accept those falsehoods. Their willingness to disregard basic constitutional principles in the process is a dereliction.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. They are members of the Federalist Society, and Mr. Grossman serves on its Free Speech and Election Law Executive Committee.

Source: https://www.wsj.com/articles/shut-up-they-advised-11580773557

Barr’s loyalty is to the Constitution, not a party

By David B. Rivkin and Andrew M. Grossman

 

December 24, 2019, in the Wall Street Journal

 

Washington’s knives are out for Attorney General William Barr, and the stabbing has intensified since he delivered a November address at the Federalist Society. Predecessor Eric Holder —who while serving in the Obama administration described himself as “the president’s wingman”—accused Mr. Barr of championing “essentially unbridled executive power.” In the same Washington Post op-ed, Mr. Holder added that Mr. Barr’s “nakedly partisan” remarks rendered him a pawn of President Trump and “unfit to lead the Justice Department”—an utterly unhinged claim.

 

In the New York Times, William Webster, who directed both the Federal Bureau of Investigation and the Central Intelligence Agency, chastised Mr. Barr for criticizing FBI bias. Meanwhile, the Never Trump group Checks and Balances accused Mr. Barr of advancing an “autocratic vision of executive power” that is “unchecked” by Congress and the courts.

 

Some of the attacks are mere symptoms of Trump derangement syndrome, but others reflect by a deep-seated resistance to the Constitution’s separation of powers and the threat that its enforcement poses to the unaccountable administrative state. In either case, they’re wrong. Far from calling for executive supremacy, Mr. Barr has vigorously advocated the Framers’ vision of the Constitution’s separation-of-powers architecture, featuring the three governmental branches—Congress, the president and the judiciary—each exercising its distinctive authorities while checking the others. In his Federalist Society address, Mr. Barr, quoting Justice Antonin Scalia, explained that the Constitution gives the president and Congress “many ‘clubs with which to beat’ each other.”

 

Mr. Barr’s extolling of the “unitary executive” is hardly revolutionary—nor, as critics imagine, is it a call for dictatorship. It posits only that the president, being responsible for execution of the law, must be able to control his subordinates. This was the rule across the government until Humphrey’s Executor v. U.S. (1935), in which the Supreme Court carved out an exception for members of certain “independent” regulatory agencies, whom the president can fire only for “good cause.”

 

The Framers had good reason to favor a strong presidency. The early republic’s weak civilian executive leadership almost lost the Revolutionary War, shifting nearly the entire burden to Gen. George Washington. Postwar government under the Articles of Confederation was a ruinous shambles, unable to assert any sort of national leadership. To be sure, the Framers also feared legislative overreaching. They resolved all these problems by creating a coequal executive who could act, in Mr. Barr’s words, with “energy, consistency and decisiveness.”

 

Humphrey’s Executor was only the beginning of the attack on the constitutional design. Congress whittled away at executive power, depriving the president of the authority and duty to “take care that the laws be faithfully executed.” The courts not only approved those usurpations, but themselves meddled in disputes between the political branches and seized broad swaths of executive discretion.

 

Numerous lawmakers, most of the media and much of the political class now claim—at least during a Republican administration—that even core executive-branch activities, such as diplomacy and law enforcement, must be substantially free from presidential control. Hence the steady drumbeat of criticism directed at Mr. Trump for overseeing and making policy for the Justice Department, the FBI and the intelligence community as a whole.

 

The result isn’t a strong Congress but the supplantation of the Constitution’s checks and balances with a worst-of-all-worlds muddle. Leaders of independent agencies like the Consumer Financial Protection Bureau exercise executive power free from accountability to the president or voters and subject only to the partisan whims of Congress. The bureaucratic “resistance,” spurred on by its allies in Congress, openly defies presidential decisions, undermining the principle of democratic control even in core areas of presidential responsibility like foreign policy. For their part, the courts increasingly police ordinary separation-of-powers disputes between Congress and the executive, destroying the possibility of compromise through political means.

 

These deviations from the Framers’ blueprint explain much of the government’s current dysfunction. Congress avoids politically dangerous decisions by palming tough choices off on agencies and the courts. The legal and political limbo of the so-called Dreamers is a ready example. Ceaseless congressional investigations nearly incapacitate the White House and are designed to achieve precisely that result. Executive agencies find their every action—even those involving inherently discretionary matters—subject to judicial scrutiny and nationwide injunctions imposed by judges whose jurisdiction is supposed to be limited to a state or district. Whereas the separation of powers fostered practical compromise, today’s judicial supremacy reduces everything to winner-take-all litigation.

 

Mr. Barr warned in his address that we must “take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” Too often, previous attorneys general regarded the elements of separation of powers opportunistically, as cudgels to be employed in particular disputes. Mr. Barr’s vision and goals are broader. He’s concerned not only with the conflicts of the day but the structure necessary for the federal government to work. It’s a bold vision, but it’s the opposite of a partisan one.

 

If Mr. Barr achieves even a fraction of his agenda to restore the Framers’ vision of a strong, independent executive, he will go down as Mr. Trump’s most consequential executive appointment.

 

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. Mr. Grossman is an adjunct scholar of the Cato Institute.

 

Source: https://www.wsj.com/articles/barrs-loyalty-is-to-the-constitution-not-a-party-11577229447