Liberals vs. EAC - DOJ Earns Wrath of Judge Leon - Part 3

For the last few days we have been watching the DOJ refuse to assist the EAC, supposedly its client, to the point that the case now has Defendant-Intervenors in the form of the Secretary of State of Kansas and the Public Interest Legal Foundation. Clearly unimpressed with what he was seeing, Judge Leon wrote a brief order denying the request for a temporary restraining order (TRO) which we shared yesterday. It was fairly standard except for the one and only footnote in the document that can best be described as hilarious. 

National Review has continued to report on the action:

Judge Leon said in a four-page order that because “the registration deadlines for the Alabama and Georgia primaries and for the Kansas Republican Caucus had already passed at the time this TRO motion was filed . . . and that the effects of the [EAC’s] actions on the ongoing registration process for the Kansas Democratic Caucus . . . are uncertain at best, plaintiffs have not demonstrated they will suffer irreparable harm” before the scheduled March 9 hearing on the request for a Preliminary Injunction. Judge Leon was also “not yet convinced that plaintiffs have demonstrated a substantial likelihood of success on the merits and looks forward to the benefit of full, adversarial briefing on the complex and important issues this case presents.”

[. . .] Judge Leon castigated DOJ during the hearing and added a footnote to his four-page order about the behavior of Justice after he said he expect a “full, adversarial briefing”: 

The Court provided defendants ample opportunity to submit a written opposition to plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction…Defendant’s counsel, the Department of Justice’s Federal Programs Branch, took the time but upon the deadline submitted a short brief taking the extraordinary step of consenting to plaintiffs’ request — not for a TRO but for a preliminary injunction! 

The emphasis in that last quote is from Judge Leon, making it quite clear he was very critical of the Justice Department’s failure to carry out its duty to defend its client — the EAC.

[F]or a judge to refuse to accept a consent agreement of the lawyers in a case who are representing the plaintiffs and supposedly representing the defendants is almost unprecedented. And that footnote is an obvious warning to the Justice Department about its misbehavior in the case.

Judge Leon denied the request for a TRO, and sent a clear message to the DOJ. Most watching are very curious to see what will happen at the hearing on March 9 given the events that have transpired thus far. The DOJ should note what Judge Leon is saying. Otherwise, this will likely get ugly.  

Further proving DOJ's failure to its client, today the EAC requested approval to hire outside counsel from both the court and Attorney General Loretta Lynch.

A Partisan DOJ Just Provided a Brief Lesson on How to Befuddle and Irritate a Federal Judge

Yesterday, this blog addressed the EAC's purpose and its duty to the states. The DOJ is responsible for representing the EAC in legal matters, or at least that is the way it is supposed to work. The National Review released an article describing the hearing that occurred yesterday where that behavior was as far away from that expectation as possible.

The judge opened the hearing by reading into the record an astonishing letter he had just received from the chair of the EAC, Christie McCormick. It informed the court that DOJ had told the EAC that it would not defend the agency, and that it would not allow the EAC to hire its own counsel. McCormick informed the judge that she believed DOJ was not fulfilling its duty and obligation to defend the EAC and had a potential conflict of interest.

This certainly foreshadowed the DOJ’s biased approach to the issue at hand and this was almost immediately addressed by the judge.

The DOJ sought to not fight a lawsuit against the federal Election Assistance Commission (EAC), conceding to a temporary restraining order and preliminary injunction filed by the League of Women voters and other activist groups. The EAC had decided to allow Kansas, Arizona, Georgia, and other states “to enforce state laws ensuring that only citizens” would be able to register to vote when they use the federally designed voter registration form.

Judge Leon called the pleading “unprecedented” and “extraordinary.” He said he had never seen such a document in his entire experience as a lawyer or a judge. He was obviously astonished that the Justice Department was not defending the agency, and it was soon clear he was not going to allow DOJ to just roll over.

As the hearing progressed, it was obvious that it was plunging further down the rabbit hole of judicial disbelief and astonishment. The DOJ, a federal entity charged with protecting other federal entities, was refusing to do so and in actuality was advocating and assisting the plaintiff?

[. . . ]Judge Leon was shocked at what DOJ had done. While he gave the plaintiffs 20 minutes to argue their case, he gave the lawyer from the Federal Programs Branch of DOJ only five minutes because he said that DOJ was obviously on the same side as the plaintiffs. He also said almost immediately that he would not grant a PI without a complete briefing and arguments on the case — despite DOJ wanting to consent to the PI. Judge Leon made clear that there was “no chance at all — zero” that he would do what the plaintiffs and the Justice Department wanted him to do on that issue.

The judge seemed literally flabbergasted at what was occurring in the court. "I've never heard of it in all my years as a lawyer," the judge said and yet, he was not quite finished expressing his disbelief.

It was clear that this hearing did not go the way the plaintiffs’ lawyers and DOJ had tried to arrange it to go. They thought the fix was in. In fact, it went so badly, particularly with DOJ being called on the carpet by Judge Leon, that at the end when the plaintiffs’ lawyer got up to try to repair all the holes that Kobach had knocked in their case, the lawyer tried to compare the EAC action to Nazi Germany. He waved the EAC opinion at issue in the air and said “this is what Nazis do behind closed doors!”  You know a lawyer is desperate when he tries to equate a dispute over an election administration issue to Nazi Germany.

Judge Leon will likely decide on the TRO today and "set a hearing for the PI on March 9, 2016."  The DOJ's behavior is potentially unethical and clearly partisan. At a minimum, the plaintiffs have learned that these are two things that Judge Leon views in a very negative light.

Bernie Sanders v. The ABA’s Code of Judicial Conduct

Bernie Sanders is not only attacking our freedom of speech but he is proposing to do so in a manner that directly contradicts the most basic of judicial tenets. Justices cannot bind themselves to decide a case before it is before them. This is a basic tenet of judicial ethics.
 
The ABA’s Code of Judicial Conduct - Canon 2, Rule 2.4(b) states the issue at hand very clearly:

(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

Judges refrain from speaking about topics that are currently before the court for just this reason. Their task is to apply law to the facts of cases; it is not one of arguing policy, making legislation, or asserting the beliefs of others on any case that could potentially come before them on an issue to make good on a promise that directly procured their appointment.
  
We again point to the comments Sen. Sanders uttered during the latest Democratic debate.
    

[SANDERS:] No nominee of mine, if I’m elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United.

  
The assertion in the statement above speaks to Sen. Sanders' misunderstanding of the purpose and power of the Office of the President of the United States and likely that of the Judicial Branch as well.

ICYMI: Sotomayor’s Politicization of Justice and Judging for Press Praise

In an interview with National Law Journal, Justice Ruth Bader Ginsburg responded to a question in the following damming way about Justice Sotomayor.

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did…

As Professor Josh Blackman put it:

Oh my. This paints Justice Sotomayor in such a negative, damaging, and weak light.

First, what does it mean that she “went along with the court.” She joined the majority opinion. That’s a vote, not passive acquiescence. Granted the opinion was narrow, but Sotomayor could have dissented or concurred if she wanted too. RBG dissented. But Sotomayor didn’t. Perhaps the Justices wanted to build consensus for a narrow opinion. But that’s a vote! Why would Ginsburg characterize her in this manner?

. . . Second, if true, it is scary that she is so responsive to press reports, that she wants to write a vigorous dissent to set them right. Justice Scalia and Thomas go out of their way to say they don’t read press accounts of the Court. They are lambasted for being out of touch. But that’s the point. They want to be insulated. Is Sotomayor that fragile and thin-skinned that she feels compelled to write an opinion based on what the media says. I would hope that a Justice would have more fortitude than to be so easily impacted by the press. She shouldn’t have to “quell” “doubts” of the chattering class.  And here, the coverage was mild. Compared that to the full court press on the Chief in NFIB!

But you know what? It worked. Attorney General Holder, with the backing of the White House, spoke glowingly of Sotomayor’s dissent. It was the talk of the town in D.C. And the press now knows they can impact a Justice. It’s one thing for us to speculate about it. But now the Justices confirmed it.

Ed Whelan adds:

How strange that Sotomayor, in a betrayal of the ethic of judicial independence, should be so concerned about re-positioning herself with those who were disappointed by her Fisher vote. How telling that Ginsburg would eagerly accommodate her—and not feel any embarrassment at revealing the fact.

Relatedly: A D.C. lawyer tells me that he was jarred to hear Sotomayor, in a private conversation, refer to lefty Hispanic groups as “my [i.e., Sotomayor’s] constituents.” A more blatantly political view of the judicial role is difficult to imagine.

Governor Perry Indictment. Next Up: Vegans Will Indite a Ham Sandwich

The indictment by a Grand Jury in Texas of Governor Rick Perry should send alarm bells to members of both parties.  This is the worst kind of prosecutorial overreach that even has left leaning political publications describing as “thin at best.”

Perry was indicted Friday on two counts: abuse of official capacity, a first-degree felony that could carry from five to 99 years in prison; and coercion of a public servant, a third-degree felony that could carry a punishment of two to 10 years. But several legal experts said the indictment itself is thin at best.

RNLA’s Texas Chapter Co-Chair Chris Gober stated:

“The alleged ‘misuse of government property’ and ‘coercion’ actually involved a constitutional exercise of Governor Perry’s veto authority … I am confident there are many Texans who watched that highly damning video of Rosemary Lehmberg’s in jail and believe Governor Perry exercised his veto with that oath in mind,” he said in an email.

The matter under dispute is Perry’s threat to veto.  Which is explained as follows:

Travis County District Attorney Rosemary Lehmberg —  a Democrat who oversees the state’s Public Corruption unit —  was arrested for driving very, very drunk. What followed was a relatively ordinary political dispute. Perry, not unreasonably, urged Lehmberg to resign. Democrats, not unreasonably, resisted out of fear that Perry would replace her with a Republican. Perry, not unreasonably, announced and carried out a threat to veto funding for her agency until Lehmberg resigned.

. . . But that statute [that is being used to indict Perry] also specifically exempts “an official action taken by the member of the governing body.” The prosecutors claim that, while vetoing the bill may be an official action, threatening a veto is not. Of course the threat of the veto is an integral part of its function. The legislature can hardly negotiate with the governor if he won’t tell them in advance what he plans to veto. This is why, when you say the word “veto,” the next word that springs to mind is “threat.” That’s how vetoes work.

The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves.

The situation is so ridiculous that one or more of President Obama’s top political advisers completely agree with Republicans:

Even some prominent liberals expressed reservations about the strength of the indictment. David Axelrod, a longtime aide to President Barack Obama, tweeted: “Unless he was demonstrably trying to scrap the ethics unit for other than his stated reason, Perry indictment seems pretty sketchy.”

RNLA Board Member Elliot Berke summed it up best:

Elliot Berke, who served as counsel to former GOP House Speaker Dennis Hastert and also to DeLay, said he believes “any objective judge will see this for what it is — a pretty outrageous attempt to criminalize politics.”

Cornelia Pillard's Extreme Views on Abortion

Cornelia Pillard, a Georgetown law professor who President Obama has nominated to the U.S. Court of Appeals for the District of Columbia Circuit, will appear at a nomination hearing before the Senate Judiciary Committee today.  There can be no doubt that she is a staunch Democrat.  An OpenSecrets.org article reveals that Pillard made significant contributions to Obama’s presidential campaigns and to other Democratic candidates. 

Pillard, like Justice Ginsburg, believes women need abortion to be equal citizens.  In her view, the Equal Protection Clause can and should be used to enshrine the abortion right in the Constitution.  You see, even abortion advocates understand that Roe v. Wade stands on shaky ground and are looking for a way to keep abortion legal, without restriction, forever.  This view is certainly out of the mainstream.

In her 2007 article, she argues that “[a]ntiabortion laws and other restraints on reproductive freedom not only enforce womens’ incubation of unwanted pregnancies, but also prescribe a ‘vision of a woman’s role’ as mother and caretaker of children in a way that is at odds with equal protection.”  Cornelia T. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941, 946 (2007).   

Tony Perkins of the Family Research Council calls attention to one of Pillard’s most shocking arguments against the “deceptive images of fetus-as-autonomous-being that the anti-choice movement has popularized since the advent of amniocentesis.” Id. at 990 (emphasis added).  As Americans United for Life’s William Saunders and Mary Harned point out, what is deceptive about an ultrasound? 

Given her extreme views on abortion, as a judge she would likely use the Equal Protection Clause to strike down bipartisan measures to restrict abortion such as parental notification, partial birth abortion, and abortion clinic regulations.  In 2012, she spoke on a panel with Justice Ginsburg, arguing for a stricter level of review of gender-based classifications, which she would apply to abortion regulations.  Cornelia T. Pillard, Nina Totenberg, Justice Ruth Bader Ginsburg, Emily Martin, Earl Maltz & Jacqueline A. Berrien, Panel: Reed v. Reed at 40: Equal Protection and Women's Rights, 20 Am. U.J. Gender Soc. Pol'y & L. 315-344 (2012).  This is the end game for Pillard and her fellow feminists: use the Equal Protection Clause to strike down any common sense restriction on abortion.       

As I discussed in my law review note, there is simply no constitutional basis to use the Equal Protection Clause in this manner.  Mary Catherine Wilcox, Why the Equal Protection Clause Cannot ‘Fix’ Abortion Law, 7 Ave Maria L. Rev. 307 (2008).  It flies in the face of Supreme Court precedent, which Pillard has argued against.  Erika Bachiochi also makes this point in her 2011 article and demonstrates that if Pillard had her way, women would be worse off.  Erika Bachiochi, Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights, 34 Harv. J.L. & Pub. Pol’y 889 (2011). 

 

In conclusion, Pillard’s own writings demonstrate that she would take judicial activism to a whole new level to impose her liberal feminist views on the rest us.  Let’s hope the Senate Judiciary Committee does not let this happen.

Obomination: Ramming Through a Questionable D.C. Circuit Judicial Nominee

Caitlin Halligan has been nominated by President Obama five times now.  Next week, the Senate will be voting on her nomination to fill a seat on the bench of the D.C. Circuit.  Concerns about her nomination should justify Senators voting nay next week.

The Washington Times editorial board expressed concerns about Halligan because of “disturbing discrepancies in Senate testimony.”  They were referring to a 2004 New York City bar association report on enemy combatants that Halligan signed onto but claimed in testimony that it was “incorrect.”  Halligan listed this report as one of her documents provided to the Senate Judiciary Committee.

Judicial Action Group points out that of the five times, only one time was the nomination stalled by a filibuster because the other four times Democrat Senators did not move for her to be voted on; it appears that there is a Senate consensus against this nominee. Judicial Action Group also wrote a detailed memo outlining her controversial opinions on guns, war crimes, marriage, judicial pay and constitutional amendments.  

The Senate Republican Policy Committee has said, “Ms. Halligan’s well-documented record as a committed advocate of extreme liberal positions raises questions about whether she would be a fair and impartial jurist. These concerns are compounded by the fact that Ms. Halligan has been nominated to one of the most important courts in the United States.”

Read about more reasons to oppose Halligan in RNLA’s letter of opposition.

Judiciary Committee Should Vote No on Halligan

Caitlin Halligan’s name is coming before the Senate Judiciary Committee for a vote today to move forward with her nomination to be a judge on the D.C. Circuit.  Members of the Committee should be reminded of the RNLA’s opposition to her nomination, the first time around.

In November of 2011, RNLA leaders wrote, “The RNLA bases its opposition on a number of troubling aspects of Ms. Halligan’s record, including a lack of candor in answers she provided to the United States Committee on the Judiciary (“Committee”); contradictory and uninformed statements she provided regarding certain lawsuits;  her views on constitutional interpretation; and the needless haste with which this nomination has moved despite no need for another judge on the D.C. Circuit.”

Why should Halligan be approved by the very Committee when she herself was not fully honest with them?  When asked by a Senator about tort liability for gun manufacturers, she denied knowledge of the matter.  Yet, as Solicitor General of New York, she filed a brief on exactly that topic.

Read the RNLA’s letter of opposition.  

Obomination: The Audacity of Renominating a Failed Nominee

Caitlin Halligan has been nominated by President Obama for the D.C. Circuit.  Sound familiar?  It should, because Obama already did it in 2010.  That nomination failed to get through the Senate in 2011, but that doesn’t seem to stop Obama in 2013.  The 44^th President is thumbing his nose at the many Senators who expressed legitimate concerns about this nominee. 

The Republican National Lawyers Association sent the Senate a formal letter of opposition to Caitlin Halligan when she nominated the first time.  The second time around, the nomination is still problematic and these concerns remain. 

According to CNN, here’s why she was opposed the first time:

Senate Republican Leader Mitch McConnell had said Halligan met the "extraordinary circumstances" standard for a filibuster under a 2005 Senate agreement that allowed filibusters of judicial nominees only in extreme cases. McConnell complained about Halligan's legal positions on gun rights, detainee rights, and immigration and said she would bring an activist agenda to the court.

In 2011, Senator Chuck Grassley said of Halligan, “Based on her record, I simply do not believe she will be able to put aside her long record of liberal advocacy and be a fair and impartial jurist.”

Halligan’s nomination was a circumstance that many considered “extraordinary.”  Susan Collins of Maine, Lindsey Graham of South Carolina, John McCain of Arizona and Olympia Snowe of Maine – were members of the “Gang of 14” that agreed back in 2005 that they would not support any filibuster except under “extraordinary circumstances.”  They all voted no on Halligan.

High scrutiny is appropriate for a nomination to the D.C. Circuit, which is often a stepping stone to the U.S. Supreme Court.  To try to ram through a nominee which failed the test of Senate scrutiny, shows the audacity of the 44^th President.  And that’s an Obomination.

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Read more Obominations.