Tag: Politics

Divided Agencies

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of civil servant opposition are legion. Move beyond headlines, however, and little is known about the impact of political divisions within agencies on their workaday functioning.

This Article presents the first comprehensive, empirical examination of the effects of intra-agency political dynamics on policymaking. Leveraging data on political preferences based on campaign donations, we identify “ideological scores” for both appointees and civil servants in dozens of agencies over thirty-four years—the first measure of the political gap between these two groups across agencies and time. We use these scores to examine how ideological divergence between appointees and civil servants affects regulatory activity.

We find that agencies with greater distance between these two groups—which we term “divided agencies”—may adopt a more cautious posture. They tend to extend the rulemaking process and allow consideration of late-filed comments. These features provide appointees with extra time to gather and digest comments from politically aligned outside experts. Divided agencies’ caution may extend to the completion of final rules, which—in some but not all models—tend to be less numerous. Remarkably, we find no evidence that divided agencies are any less successful in shepherding proposed rules to final status. That finding casts doubt on the claim that the longer rulemaking timeframes in these agencies are attributable to civil servants’ attempts to derail oppositional appointees’ initiatives. Instead, one possible interpretation is that divided agencies’ caution pays off.

These findings imply that, with agency heads oscillating between left and right based on the party in power, the generally more moderate civil service can serve as a ballast. Specifically, faced with appointees that may be responsive only to a bare electoral majority, the presence of oppositional civil servants may encourage regulatory caution and push decision-making away from the extremes—thus, paradoxically, moving policy toward the median voter.

Our findings also spotlight the critical role that the notice-and-comment process—which is often maligned as pretextual—can play in divided agencies. Generalist appointees face a principal-agent problem when crafting rules: their key source of necessary in-house expertise, civil servants, may be misaligned. In this circumstance, comments from outside allies can provide a check on civil servants’ work. That civil servants can play a promajoritarian, moderating role in divided agencies highlights the importance of preserving civil service protections—especially in today’s polarized political climate.

Introduction

Secretary of the Interior Ryan Zinke, who served during the Trump Administration, and John Morton, who helmed Immigration and Customs Enforcement (“ICE”) under President Obama, may not have much in common politically, but they do share one experience: they managed agencies in which approximately one-third of their workforce was estranged. A proponent of increasing industry access to public lands, Secretary Zinke believed he had “thirty [percent] of the crew that’s not loyal to the flag” concerning that goal.[1] He compared his situation to capturing “a prized ship at sea and only the captain”—that would be Secretary Zinke, incidentally, a former Navy SEAL—“and the first mate row over” to manage the captured crew.[2] In response, some Interior Department civil servants styled themselves “the disloyals,” printing T-shirts with that epithet.[3]

Director Morton faced a similar mutiny. After issuing a directive prioritizing deportations of people convicted of crimes and urging prosecutorial discretion in other cases,[4] the union representing nearly thirty-nine percent of ICE employees passed a no-confidence vote against Morton’s leadership.[5] That move was unprecedented.[6]

That other apostates can be found across the executive branch is unsurprising;[7] the conditions are ripe for such conflicts. Civil servants often hold differing views from appointees.[8] With only four thousand appointees atop a federal workforce of over two million[9]—many of whom hold job protections—the former group’s ability to supervise the latter will, by practical necessity, be incomplete. As political polarization grows and hardball tactics typically associated with electoral politics enter administrative agencies,[10] we expect that conflicts between appointees and civil servants will only increase.

In recent years, legal scholars have turned their attention to examining these inner workings of administrative agencies. For instance, some scholars posit that competing centers of power within agencies—civil servants and appointees, along with public participants—serve a checking function on each other’s power and thus mimic the more familiar constitutional separation of powers.[11] Others theorize about the policies produced by agencies that contain competing powers, some of which pull in majoritarian and others in countermajoritarian directions.[12]

Yet while the legislative consequences of political divisions among the branches of government are well studied,[13] relatively little empirical work analyzes the impact on policy of political divisions within agencies.[14] Empirically, political dynamics inside administrative agencies remain terra incognita in some important respects. How do agencies in which key subgroups are at loggerheads differ from agencies that are more politically cohesive? Do deeply divided agencies take longer to regulate, perhaps because of distrust or civil servant foot-dragging? Is White House review more exacting for these agencies, on the theory that White House officials are less likely to trust proposed rules emanating from ideologically divided entities? And do these agencies ultimately produce fewer rules?

This Article seeks answers to these questions. It examines how ideological differences between political appointees and civil servants affect the rulemaking process. These two groups share power within agencies, with generalist appointees relying on expert civil servants to implement the former group’s preferred policies. That division gives rise to a well-studied principal-agent problem: appointees must rely on civil servants who may have very different policy preferences and over whom appointees have limited ability to monitor or control.[15]

Faced with agents they may distrust, appointees may seek out and spend more time considering informed “second opinions” from other sources. These alternative sources of information include comments received during the notice-and-comment process, informal feedback from allies in Congress, and recommendations from advisory committees of outside experts occupying a privileged position within agencies. Indeed, public choice theorists posit that administrative structures and processes can serve just this purpose.[16]

We put this theory to the test, examining how appointees respond when their agents in the civil service hold differing views. To do so, we first develop a measure of ideological distance over time and within agencies so that we can identify divided agencies.

Existing measures are inadequate for that purpose,[17] so we create our own. We leverage a dataset on ideological preferences based on campaign donations to do so. We use these data to generate dynamic “ideal point” estimates for agency heads and civil servants in forty-seven agencies over thirty-four years—and thus, a new measure of the ideological gap between these two groups across agencies and time.[18] We then connect this measure to data concerning the rulemaking process.

Our results show that divided agencies—that is, those with ideologically opposed agency heads and civil servants—adopt a slower rulemaking posture than agencies that are more unified. Several of our findings suggest that greater caution may be at play. Once civil servants generate a proposed rule, appointees take their time. While we cannot rule out all alternative explanations, we observe that one feature of the delay is consideration of late-filed comments. Considering late-filed comments allows appointees to hear from a greater number of ideologically aligned outside groups as a check on civil servants’ work. Delay may also result from appointees spending additional time assessing those comments. In either case, slower rulemaking at divided agencies suggests that appointees may be utilizing rulemaking procedures to blunt civil servants’ informational advantages. Additionally, divided agencies may tend to issue fewer rules. That their rules are no less likely to become final, however, is perhaps evidence that their caution pays off.

This claimed cautious approach means that, whatever policy changes one desires in a first-best world, the reality of policymaking in divided agencies likely will leave one disappointed. Indeed, divided agencies are likely status quo-preserving. Whether this feature is normatively desirable turns, in part, on one’s risk aversion and the extent to which one values policy certainty.

Given that partisan polarization—and thus divided agencies—likely will persist into the foreseeable future, our findings provide a set of best practices for agencies to function as well as possible under these conditions. The policy implication that most closely follows from our findings is that officials must preserve the independence of the civil service. At a time when that independence is challenged, our findings about rulemaking suggest that civil servants comprise a moderating counterweight against more ideologically extreme appointees; thus, they serve as a bulwark against wild changes in regulatory policy. With agency leadership swinging between liberal and conservative poles, as we find, civil servants—who tend to be more moderate, albeit left of center—can pull agency policies toward the median voter. This moderation serves to improve democratic representation in agency policymaking: appointees are aligned with the Presidents who appoint them, and Presidents tend to be more ideologically extreme than the median voter. Allowing policy to swing all the way to their appointees’ preferences would therefore not reflect the public’s preferences. In contrast to common laments of employment-protected civil servants serving as a countermajoritarian force in policymaking, we show that they can serve a democratizing function in divided agencies.[19]

Further, to prevent divided agencies from descending into the gridlock and paralysis that plague other polarized institutions, appointees must have access to high-quality information from ideological allies, which we infer from divided agencies’ greater willingness to consider late-filed comments. We argue that the notice-and-comment process is well suited to transferring high-quality information to distrustful appointees. Notice-and-comment also may discourage civil servants, aware that their work will be “checked” by outsiders, from straying too far from their principals’ goals. Additional measures to inject diverse outside sources of information into agency decision-making could further enhance agencies’ ability to function, even in a challenging partisan climate within their walls—though they would increase resource costs associated with rulemaking.

This Article proceeds in four parts. Part I situates our study in twin literatures: empirical scholarship examining extra-agency influences on regulatory dynamics and descriptive and positive work concerning intra-agency dynamics. Part II presents our theory and expectations concerning the effects of appointee-civil servant preference divergence on regulatory processes and outputs. In Part III, we describe our research design, including our creation of an original dataset identifying appointees’ and civil servants’ political ideologies across agencies and time, and we present our analysis. Part IV discusses normative implications and offers policy prescriptions.

          [1].      Evan Osnos, Trump vs. the “Deep State,” New Yorker (May 14, 2018), https://
http://www.newyorker.com/magazine/2018/05/21/trump-vs-the-deep-state [https://perma.cc/9862-ZBGM].

          [2].      Matthew Daly, Interior Chief’s Loyalty Comments Draw Widespread Criticism, Associated Press (Sept. 26, 2017), https://apnews.com/article/8c3ae77664f44159823903b3add31e65 [https://
perma.cc/AN4H-W8N6].

          [3].      Osnos, supra note 1.

          [4].      Memorandum from John Morton, Dir., U.S. Immigr. & Customs Enf’t, to All Field Off. Dirs., All Special Agents in Charge, & All Chief Couns., U.S. Immigr. & Customs Enf’t (June 17, 2011), https://
http://www.ice.gov/doclib/foia/prosecutorial-discretion/certain-victims-witnesses-plaintiffs.pdf [https://perma.
cc/JM2G-ZSVX].

          [5].      Ted Hesson, 7 Numbers that Tell the Story of an Immigration Boss’s Tenure, ABC News (June 17, 2013, 12:34 PM), https://abcnews.go.com/ABC_Univision/Politics/ice-director-john-mortons-
tenure-numbers/story?id=19422159 [https://perma.cc/W37D-R4QM]; see also Julia Preston, Single-Minded Mission to Block an Immigration Bill, N.Y. Times (June 1, 2013), https://www.nytimes
.com/2013/06/02/us/for-chris-crane-a-quest-to-block-an-immigration-bill.html [https://perma.cc/2ZLK-
TXUC] (providing figures used to calculate the union’s share of ICE’s workforce).

          [6].      Preston, supra note 5.

          [7].      See Osnos, supra note 1 (providing other examples).

          [8].      See infra Part III.

          [9].      Fiona Hill, Public Service and the Federal Government, Brookings (May 27, 2020), https://
http://www.brookings.edu/policy2020/votervital/public-service-and-the-federal-government [https://perma.cc/
JRK2-QYRM] (reporting the size of the federal nonmilitary, nonpostal workforce and the approximate number of political appointees).

        [10].      See Brian D. Feinstein & M. Todd Henderson, Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions, 38 Yale J. on Regul. 175, 223, 226 (2021) (documenting these developments).

        [11].      See Jon D. Michaels, Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers, 91 N.Y.U. L. Rev. 227, 238–39 (2016); Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 425 (2009); Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2346 (2006).

        [12].      See Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 72 (2008).

        [13].      See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006); Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives (2005); John J. Coleman, Unified Government, Divided Government, and Party Responsiveness, 93 Am. Pol. Sci. Rev. 821 (1999); David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–2002 (2d ed. 2005).

        [14].      But see generally Rachel Augustine Potter, Bending the Rules: Procedural Politicking in the Bureaucracy (2019); Rachel Augustine Potter, Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking, 79 J. Pol. 841 (2017) [hereinafter Potter, Slow-Rolling, Fast-Tracking]; Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889 (2008); George A. Krause, A Two-Way Street: The Institutional Dynamics of the Modern Administrative State (1999).

        [15].      See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 243–44 (1987) (outlining this principal-agent problem).

        [16].      See, e.g., id. at 255 (“[P]olitical principals in both branches of government suffer an informational disadvantage with respect to the bureaucracy. . . . [M]any of the provisions of the Administrative Procedures [sic] Act solve this asymmetric information problem.”).

        [17].      For instance, measures based solely on the ideology of the appointing President fail to capture ideological differences in consecutive agency heads appointed by the same President. In other words, they do not capture enough variation over time. Other measures only occur sporadically in time.

        [18].      The included executive agencies are the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs (operating as the Veterans Administration until 1989); Environmental Protection Agency; and Small Business Administration. The included independent agencies are the Agency for International Development, Civil Aeronautics Board (until its dissolution in 1985), Commodity Futures Trading Commission, Equal Employment Opportunity Commission, Farm Credit Administration, Federal Communications Commission, Federal Deposit Insurance Corporation, Federal Emergency Management Agency (until its subordination to the Department of Homeland Security in 2003), Federal Energy Regulatory Commission, Federal Housing Finance Agency, Federal Housing Finance Board (until its dissolution in 2009), Federal Labor Relations Authority, Federal Maritime Commission, Federal Reserve Board, Federal Trade Commission, General Services Administration, Interstate Commerce Commission (until its dissolution in 1996), National Aeronautics and Space Administration, National Archives and Records Administration, National Credit Union Administration, National Transportation Safety Board, Nuclear Regulatory Commission, Office of Federal Housing Enterprise Oversight (until its dissolution in 2009), Office of Personnel Management, Pension Benefit Guaranty Corporation, Securities and Exchange Commission, Social Security Administration, Surface Transportation Board, and U.S. Postal Service. Also, the Internal Revenue Service, although part of the Treasury Department, is included as a separate agency.

        [19].      See Stephenson, supra note 12, at 72 (presenting a positive theory of this dynamic).

           *      Assistant Professor of Legal Studies and Business Ethics, the Wharton School of the University of Pennsylvania.

           †      Professor of Law, Political Science and Public Policy, University of Southern California Gould School of Law. We thank Adam Bonica, Devin Judge-Lord, and Rachel Potter for data, and Ming Hsu Chen, John Harrison, Erin Hartman, Kathryn Kovacs, Jeff Lubbers, Neysun Mahboubi, Jennifer Mascott, John McGinnis, Jon Michaels, David Noll, Anne Joseph O’Connell, Richard Pierce, Zach Price, Michael Rappaport, Noah Rosenblum, Amy Semet, Bijal Shah, Kevin Stack, Matthew Stephenson, Chris Walker, Dan Walters, Adam White, and participants at the Presidential Administration in a Polarized Era conference at the C. Boyden Gray Center for the Study of the Administrative State for helpful comments. The authors also gratefully acknowledge the Gray Center’s financial support of this research. 

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Divided Agencies

Brian D. Feinstein* & Abby K. Wood†

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of civil servant opposition are legion. Move beyond headlines, however, and little is known about the impact of political divisions within

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The Social Context of the Law: A Critical Analysis of Reliance Interests in the Department of Homeland Security v. Regents of the University of California

Raquel Muñiz,* Maria Lewis,† Grace Cavanaugh‡ & Melissa Woolsey††

In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case. The case concerned the rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy, an issue that sparked the interest of a wide range of amicus curiae, including those in support of the policy. Using

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Dimensional Disparate Treatment

Benjamin Eidelson*

The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation

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Designing Supreme Court Term Limits

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term-limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term-limits proposals would have shaped the Court if they had been in place over the last eighty years of American history. These simulations enable comparative assessments of term-limits proposals relative to each other and to the historical status quo of life tenure. Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited Justices immediately could complete the transition in just sixteen years, but proposals that wait until after the sitting Justices leave the Court to appoint term-limited Justices would take an average of fifty-two years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term-limits proposals would have reduced the amount of time with extreme imbalance by almost half.

          *     Professor of Law, University of Chicago Law School. J.D. 2013, Ph.D. 2013, A.M. 2012, Harvard University. M.A., B.A. Yale University, 2007.

          †     Treiman Professor of Law, Washington University in St. Louis. J.D. Harvard University 2008, A.B. Duke University 2004.

          ‡     Associate Professor of Law, Washington University in St. Louis. Ph.D., 2015, Cornell University. J.D. 2011, Washington University. B.S.E. 2008, Grand Valley State University.                  

††         Professor of Public Policy, Harvard Kennedy School. Ph.D. 2012, A.M. 2011, A.B. 2000, Harvard University. J.D. 2004, Stanford University. For helpful conversations and comments, we are grateful to Gabe Roth and participants at workshops at the University of Chicago Law School, Washington University School of Law, NYU Law School, and the American Law & Economics Association Annual Meeting.

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You’re fired: The Original meaning of Presidential Impeachment by ames C. Phillips* & John C. Yoo†

Article | Consitutional Law
You’re Fired: The Original Meaning of Presidential Impeachment
by James C. Phillips* & John C. Yoo†

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1191 (2021)

Keywords: Impeachment, Mueller Report, Federalist

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In 2020, for just the third time in its history, the Senate conducted an impeachment trial of the President. While the 2020 case of President Donald Trump presented different facts than those of President Andrew Johnson in 1868 or President Bill Clinton in 1998, the Senate rendered the same verdict of acquittal. Initial investigations had probed whether President Trump or his campaign had coordinated with Russia to influence the 2016 elections, and then pursued the possibility of obstruction of the investigations themselves. But when the Justice Department decided that it could not indict a sitting President, Congress focused its inquiry on whether President Trump had withheld foreign aid from Ukraine until its leaders launched an investigation into his opponent in the 2020 election, then-former Vice President and current President Joseph Biden.

Whether Congress could constitutionally remove President Trump through impeachment raises questions as old as the Republic and facts as new as social media. The Constitution uses language to define the grounds for impeachment, such as “high Crimes and Misdemeanors,” that remains a mystery today. Does impeachment require a federal crime, or can it include abuses of power and obstruction of Congress? How would Congress define these “high Crimes and Misdemeanors” in a neutral way that would not deter future Presidents from invoking their legitimate authority or unduly place the executive under legislative control? Can Congress remove the President because of a good-faith disagreement over the scope of executive power or the meaning of the Constitution itself? Even if impeachment included noncriminal acts, does the Constitution require that the offenses rise to a level of seriousness that justify removal? President Trump’s case raised the further question whether Congress could remove the President for actions that had a plausible public interest, or whether the legislature need only find that the President had pursued personal interests as well. The 2020 trial finally asked whether impeachment provides the only remedy for presidential misconduct, or whether the Constitution provides other remedies.

This Article seeks to answer these questions by examining the original understanding of presidential impeachment. We undertake this analysis both because the Framers’ work formed the central basis for both the prosecution and defense cases during the President Trump’s first impeachment and because other guides to constitutional meaning are lacking. As the Supreme Court has decided that impeachment qualifies as a “political question” outside Article III’s case or controversy requirement,[1] these questions have no legal answers from traditional sources, such as judicial opinions. Practice also provides little help. The House of Representatives has impeached only two other Presidents in American history. In the wake of President Abraham Lincoln’s assassination, Republicans in Congress found their plans for a radical reconstruction of the South frustrated by the new President Andrew Johnson, a Southern Democrat who favored a more lenient peace.[2] In 1868, the House impeached President Andrew Johnson for conducting himself in office in a disgraceful, yet not illegal, manner. President Johnson broke prevalent norms by speaking directly to the people to lobby for legislation and attacking Congress as “traitors.” Congress responded by including an article of impeachment for his unacceptable rhetoric.[3] To strengthen their case, congressional Republicans made it a crime for the President to fire his cabinet officers without their consent—a law that the Supreme Court would later find an unconstitutional infringement of the President’s removal power.[4]

Exactly 130 years later, the House flexed its impeachment powers for only the second time in its history, but over the sordid and banal rather than the high and mighty. Rather than the reconstruction of the nation after a terrible Civil War, the impeachment of President Bill Clinton asked whether the President had committed perjury about his affair with a White House intern, Monica Lewinsky. The President had committed a crime, but the independent counsel, Kenneth Starr, concluded that the Justice Department could not indict a sitting President, much as it would almost two decades later. Instead, Starr referred the case to Congress to decide whether to take action. While the House impeached along a party-line vote, the Senate refused to convict, also on a close party-line vote. It seemed that President Clinton’s argument that he had only lied about sex and had not committed any harm to the nation on a par with treason or bribery, seemed to carry the day. But the partisan nature of the vote also suggested that impeachment and removal would become a test of party discipline, in that Presidents would likely survive so long as they could maintain the support of thirty-four Senators of their party.

A third President, Richard Nixon, likely would have faced impeachment and removal had he not resigned on August 9, 1974. Both a special counsel and the House had launched probes into a burglary of Democratic Party offices at the Watergate Hotel during the President’s reelection campaign. After the Supreme Court ordered President Nixon to obey a subpoena for White House tapes of meetings where the President had allegedly ordered the cover-up of the break-ins, the Judiciary Committee reported three articles of impeachment to the full House. President Nixon resigned before the House could vote but only after he had met with delegations of Republican congressmen who told him that he would likely lose the votes in Congress. While the committee had considered a wide variety of charges, such as bombing Cambodia without congressional authorization and tax cheating, in the end it recommended impeachment only for obstruction of the special counsel investigation, impeding the House’s probe, and for violating the individual rights of his political enemies through misuse of the CIA, FBI, and IRS. Unlike the Johnson and Clinton examples, however, President Nixon’s case never came to a vote in the House, not to mention a full trial in the Senate. It is difficult to conclude, therefore, that President Nixon’s resignation creates some kind of precedent in the way that the 1868 and 1998 examples might.

It is not even clear that the Nixon case or even the Johnson and Clinton impeachments should create any precedent, in a judicial sense, for Congress. In both the Johnson and Clinton cases, the Senate refused to convict. It could have found that the House had not “proved” its facts, though in both cases the facts seemed fairly clear. President Johnson had indeed fired his Secretary of War without the consent of Congress; President Clinton had lied to prosecutors in a deposition recorded on video. If the facts were proven, then the Senate must have acquitted because they did not amount to high crimes and misdemeanors as defined by the Constitution. But the Senate leaves behind no written opinion to explain its decision because it acts much as a jury in a criminal trial to solely determine conviction. Therefore, we can draw no firm legal precedents from these earlier impeachments.

A previous Senate, moreover, could not bind a future Senate to its interpretation of the constitutional standards on impeachment. One Congress generally cannot bind a future Congress; as with all three branches of government, Congress can simply undo any action by a past Congress by passing a repealing law or rule. The Senate that tried President Andrew Johnson may well have concluded that it should not remove a President for exercising the executive power to fire cabinet officers. It could have believed that the exercise of constitutional power could not qualify as a high crime or misdemeanor, or it could have thought the President had to actually violate federal criminal law. But the Reconstruction Senate never took a vote, issued an opinion, or enacted an internal rule that interpreted the standard for impeachment. Even if it had, a contemporary Senate could change any rule or opinion by majority vote, just as the Senate changed the filibuster rule to exclude judicial and cabinet appointments. Senators who wanted to follow the Johnson or Clinton impeachments as some sort of precedent would have to appeal to tradition, rather than any legal rule, to govern a Trump impeachment.

Without any legal precedents, or even any system of binding practice, the original understanding of the Constitution becomes magnified in importance. The Constitution does not provide for the trial or punishment of a sitting President by prosecutors or a regular court. Instead, the Impeachment Clause creates a means to remove “the President, Vice President, and all civil Officers of the United States.”[5] It vests the power to impeach in the House and specifies no vote requirement, so we have always assumed it occurs by majority vote. Impeachment amounts to an indictment in a criminal case, in which prosecutors decide they have enough evidence to bring a prosecution before a jury. Vesting the power in the House, rather than prosecutors or judges, could suggest that impeachment will not fall solely within the preserve of law, but will involve politics as well. Without any reading of the Impeachment Clauses based on legal authorities, Congress might allow politics to overwhelm law in its indictment and trial of Presidents. Then-House Minority Leader Gerald Ford, for example, defended the impeachment of Justice Douglas because “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”[6]

Our analysis reveals new sources of materials that make the first Trump impeachment more complex than presented in the trial, debates, and media commentary. Contrary to the claims of President Trump’s defense, we find that the Framers understood “high Crimes and Misdemeanors” to include conduct that went beyond the violation of federal criminal law. Such offenses could include abuse of power; but we also conclude that these acts had to inflict serious harm upon the nation. A President could commit a crime, but it would not impose sufficient injury upon the public to justify removal (as with the Clinton example). A President could also commit no crime, but his misconduct or negligence could so harm the nation as to justify removal from office. We also find that the Framers were so worried that Congress would turn impeachment toward partisan political purposes that they erected the two-thirds requirement for conviction to preserve executive independence. Instead of impeachment, the Framers expected that elections would provide the primary check on presidential misconduct.

This Article proceeds in three parts. Part I reviews the investigations into President Trump, his first impeachment and trial, and his acquittal. Part II uses both new and old techniques to recover the history of the drafting and ratification of the Constitution. We use computerized textual analysis—corpus linguistics—of British materials pre-dating the Constitution’s framing to analyze what those of the founding generation would have believed the phrase “high Crimes and Misdemeanors” meant. We then examine the drafting and ratification of the Constitution to understand how the Founders expected the Impeachment Clauses to work. Part III draws forth lessons from this history and applies them to the issues raised by the Trump impeachment.

 

        *        Assistant Professor of Law, Dale E. Fowler School of Law, Chapman University. We received helpful comments from Jesse Choper, who has now witnessed seventy-five percent of all presidential impeachments. The authors wish to thank Francis Adams, Min Soo Kim, Darwin Peng, David Song, and the research librarians at Chapman University’s Fowler School of Law for research assistance.

       †     Emanuel S. Heller Professor of Law, University of California at Berkeley Law School; Visiting Scholar, American Enterprise Institute; Visiting Fellow, Hoover Institution, Stanford University. Professor Yoo thanks the Thomas W. Smith Foundation for support.
         [1].     Nixon v. United States, 506 U.S. 224, 253 (1993).

         [2].     See Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 87 (1973).

         [3].     Jeffrey K. Tulis, Impeachment in the Constitutional Order, in The Constitutional Presidency 229, 232 (Joseph M. Bessette & Jeffrey K. Tulis eds., 2009).

         [4].     Myers v. United States, 272 U.S. 52, 176 (1926).

          [5] U.S. Const. art. II, § 4.

         [6].      Kenneth C. Davis, The History of American Impeachment, Smithsonian Mag. (June 12, 2017), https://www.smithsonianmag.com/history/what-you-need-know-about-impeachment-180963645 [https://perma.cc/56EW-YKLU].

 

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The Political Reality of Diversity Jurisdiction by Richard D. Freer

Article | Civil Procedure
The Political Reality of Diversity Jurisdiction
by Richard D. Freer*

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1083 (2021)

Keywords: Diversity Jurisdiction, Politics

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Support for diversity of citizenship jurisdiction has ebbed and flowed.[1] From the 1960s through the 1980s, the prevailing wind blew strongly against it.[2] A determined group, led mostly by academics and federal appellate judges, spearheaded an effort to have Congress abolish the general form of federal subject matter jurisdiction.[3] These critics were confident that diversity jurisdiction had outlived its need, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts. Advances in travel and communication, critics asserted, had homogenized American culture and rid us of any reasonable fear of bias at the hands of local courts.[4] Abolishing diversity jurisdiction would free busy federal judges from the nettlesome requirement of divining and applying state law and allow them more time for limning and developing federal law.[5] The effort was so successful that the House of Representatives overwhelmingly passed a bill abolishing diversity jurisdiction in 1978.[6]

But that effort and another determined frontal assault on diversity jurisdiction in 1990 failed. Now, a generation and more later, one sees little support for abolishing diversity. Even as its place on the federal docket grows—now accounting for more than one-third of the civil cases filed in district courts—one does not find academics or federal judges urging that these state-law-based cases be taken from the federal court docket.[7] On the other hand, diversity is now becoming a topic of increasing scholarly interest. The current commentary, however, is focused mostly on rationalizing diversity doctrine, making it consistent with its presumed purpose, rather than on curtailing it.[8] The accepted wisdom seems to be that diversity jurisdiction is here to stay, but that it might be recalibrated here and there.

What accounts for diversity’s survival and apparent acceptance? In retrospect, those who sought to abolish diversity jurisdiction failed to appreciate three fundamental characteristics about diversity jurisdiction. These characteristics should not be overlooked in our new era; they should guide efforts to rationalize diversity doctrine.

First, critics failed to understand that diversity jurisdiction is not something to be considered in vacuo, as a freestanding grant of judicial authority. It is instead an integral part of the economic engine of interstate commerce. Its function, ultimately, is to support the policies underlying the commerce, full faith and credit, and privileges and immunities clauses of the Constitution.[9] One should alter the availability of diversity jurisdiction only after considering the impact of such a change on this broader constitutional mission.

Second, those who attempted to abolish diversity understated the policy bases for diversity jurisdiction. Though the traditional “bias rationale” was indeed fear of bias against out-of-state litigants in state courts, today diversity jurisdiction is more broadly grounded in at least two ways. One is subtle and based in jurisdictional legislation of 1875: that the fear backing diversity jurisdiction is not state-based bias, but region-based bias.[10] The other, an “efficiency rationale,” developed over time with the Supreme Court’s jurisprudence regarding the Fourteenth Amendment’s restriction on state-court personal jurisdiction. Specifically, it is that diversity jurisdiction facilitates efficient joinder in complex cases in ways that state courts (hemmed in by the Supreme Court’s restrictive interpretation of the Fourteenth Amendment) simply cannot.[11] This rationale led to a resurgence of jurisdictional grants based upon diversity jurisdiction in the early part of this century so that there are now more diversity-based grants of subject matter jurisdiction than ever before.

Third, those who attempted to abolish diversity failed to appreciate that jurisdiction is ultimately a political issue. Whatever the policy bases for diversity jurisdiction, Congress retains it because the practicing bar wants it. The point was demonstrated in 1978. After the House passed its bill to abolish diversity jurisdiction, the organized bar leapt into action and defeated the effort in the Senate.[12] Thus, even if critics can show that diversity jurisdiction has outlived its need, they cannot show that it has overstayed its welcome, at least not in the eyes of the politically powerful group that wants it and uses it.

These characteristics should guide any efforts to make sense of, to render consistent, the various threads of the diversity canon. In addition, these efforts should take into account two other considerations. One, that canon is the result of complex interactions between Congress, which passes jurisdictional statutes, and federal courts, which interpret them. The bench is understandably concerned about docket control and holds considerable power in shaping jurisdiction with that as one consideration. Two, a national legal culture has evolved over our 230 years of experience with diversity jurisdiction. That culture includes the dynamic of intersystemic federalism, by which the federal and state courts engage in an ongoing dialogue about the development of the substantive law and of civil procedure.

It is unlikely that Congress will ever abolish diversity jurisdiction. At most, the legislature will tinker with some aspect of diversity in an effort to ensure that the federal court caseload does not get out of hand. As long as we maintain a rough equilibrium between the practicing bar’s desire to retain diversity jurisdiction and the federal bench’s desire to keep caseloads manageable, the status quo is fine—as a matter of political reality.

         

         *       Charles Howard Candler Professor of Law, Emory University. I have benefited from discussions with Tom Arthur, Pat Borchers, Collin Freer, Peter Hay, Dan Klerman, Dale Larrimore, Jonathan Nash, Rafael Pardo, Martin Redish, Robert Schapiro, Joanna Shepherd, and Howard Wasserman, for which I am grateful. I am indebted to the participants of the Federal Diversity Jurisdiction Conference held by the Emory Center on Federalism and Intersystemic Governance, in particular to Brooke Coleman for her insightful review of the Article. I am also grateful to Crystal Lee of the Emory Law Library, who provided invaluable assistance in locating historical materials.

         [1].     Congress granted diversity jurisdiction upon the federal trial courts in the original Judiciary Act of 1789. It did not confer general federal question jurisdiction until 1875. Thus, until 1875, diversity cases were the staple of the federal civil docket. In the late nineteenth century, increasing federal caseloads and invocation of diversity jurisdiction by corporations led to some calls for restriction. In the twentieth century, an increasing number of federal judges, including Justices Frankfurter and Jackson, and later Chief Justices Warren and Burger, attacked diversity jurisdiction as wasteful of federal judicial resources. The anti-diversity momentum gathered throughout the 1970s and peaked with the Report of the Federal Court Study Committee (“FCSC”) in 1990 [hereinafter Report, FCSC]. For an outstanding treatment of this history (from which the foregoing is gleaned), see James M. Underwood, The Late, Great Diversity Jurisdiction, 57 Case W. Rsrv. L. Rev. 179, 180–­98 (2006). The Report, FCSC is discussed infra Section V.B.

         [2].     The American Law Institute’s Study of the Division of Jurisdiction Between State and Federal Courts (1969) was particularly influential. The American Law Institute (“ALI”) undertook the study in response to a 1959 request by Chief Justice Warren. The study concluded that diversity jurisdiction should be curtailed for two general reasons: that local bias was less pronounced than in earlier years and that the limited resources of the federal courts would better be expended on federal question cases. See John W. Reed, The War on Diversity, 18 Int’l Soc’y Barristers Q. 291, 291–92 (1983) (“Over the past decade or more there have been strong pressures to abolish the diversity jurisdiction of the federal courts. . . . The attack on diversity jurisdiction has its most distinguished formulation in a major study sponsored by the American Law Institute.”).

         [3].     By the “general form” of diversity jurisdiction, I mean cases invoking § 1332(a)(1). Technically, no one favors the total abolition of federal jurisdiction based on the diversity power. For instance, all support retaining federal interpleader jurisdiction, which is, of course, based upon the diversity power. And no one advocates curtailing alienage jurisdiction under § 1332(a)(2). This Article addresses efforts to abolish or to curtail significantly this general form of diversity jurisdiction. Throughout this Article, my references to diversity are to its general form.

         [4].     Such arguments date to the late nineteenth century, with the assertion that the advent of steam and electric power, and the Civil War, had so unified the country as to justify abolition of diversity. Alfred Russell, Avoidable Causes of Delay and Uncertainty in Our Courts, 25 Am. L. Rev. 776, 795­–96 (1891). Justice Frankfurter favored abolition in the 1920s, saying “the mobility of modern life has greatly weakened state attachments. Local prejudice has ever so much less to thrive on than it did when diversity jurisdiction was written into the Constitution.” Felix Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L.Q. 499, 521 (1928).

         [5].     See, e.g., David Crump, The Case for Restricting Diversity Jurisdiction: The Undeveloped Arguments, from the Race to the Bottom to the Substitution Effect, 62 Me. L. Rev. 1, 5 (2010) (“[A]bolition [of diversity jurisdiction] would preserve a federal forum for those with federal claims.”); Larry Kramer, “The One-Eyed Are Kings”: Improving Congress’s Ability to Regulate the Use of Judicial Resources, 54 L. & Contemp. Probs. 73, 77 (1991) (discussing reducing federal court workload by “reduc[ing] the scope of federal jurisdiction by eliminating unimportant categories of cases so that judges can devote more time to the cases that remain”). Dean Kramer served as a reporter of the FCSC, which concluded that no case had a “weaker claim” on the federal court docket than diversity jurisdiction. See infra note 130.

         [6].     H.R. 9622, 95th Cong. (1978) (proposing “to abolish diversity of citizenship as a basis of jurisdiction of Federal district courts”). The measure passed the House by a roll call vote of 266­ to 133 on February 28, 1978.

         [7].     The most recent calls for abolishing diversity jurisdiction appear to be Debra Lyn Bassett, The Hidden Bias in Diversity Jurisdiction, 81 Wash. U. L.Q. 119, 138–­45 (2003) and Crump, supra note 5, at 22 (concluding that “[t]oday, more than ever, there are persuasive arguments for the abolition or retrenchment of the general diversity statute”). For discussion of Professor Bassett’s proposal, see infra note 176 and accompanying text.

         [8].     Scott Dodson, Beyond Bias in Diversity Jurisdiction, 69 Duke L.J. 267, 309 (2019) (noting contemporary justification of diversity jurisdiction on efficiency grounds); Steven Gensler & Roger Michalski, The Million Dollar Diversity Docket, 47 BYU L. Rev. (forthcoming 2022) (studying a broad range of docket effects of increasing amount in controversy in diversity cases); Daniel E. Klerman & Jonathan R. Nash, Aligning Diversity Jurisdiction with Its Bias Rationale (2021) (unpublished manuscript on file with author) (calling for rationalization of diversity doctrine in line with its traditional bias rationale); Patrick Woolley, Diversity Jurisdiction and the Common-Law Scope of the Civil Action, 99 Wash. U. L. Rev. (forthcoming 2022) (asserting that diversity doctrine should be understood against the backdrop of common law joinder rules).

         [9].     See infra Part I.

       [10].     See infra Part II.

       [11].     See infra Part III.

       [12].     Indeed, the matter never came to a vote in the Senate. S. 2389, 95th Cong (1978). See Underwood, supra note 1, at 199 n.91.

 

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Time to Go Auer Separate Ways: Why the Bia Should not Say What the Law is by Tatum Rosenfeld

Note | Immigration Law
Time to Go Auer Separate Ways: Why the BIA Should Not Say What the Law is
by Tatum P. Rosenfeld*

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1279 (2021)

Keywords: Board of Immigration Appeals (“BIA”), Auer

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Neither fully legislative nor fully judicial, federal administrative agencies are tasked with “policing the minutiae.”1 They codify and enforce the details of the regulatory scheme set out by Congress.2 Simply put, administrative agencies administer the law. Agency regulations, however, like other legal sources, can be ambiguous.3 Thus, interpretation is inevitably necessary either to confront a novel circumstance or to resolve an inherent semantic ambiguity. This then raises the question: Who should be called upon to resolve such ambiguities? The Supreme Court’s solution is to put agencies in charge. Auer deference says an agency’s interpretation of its own rule controls so long as it is not “plainly erroneous or inconsistent with the regulation.”4 In effect, after an agency promulgates a regulation, it then maintains the latitude to fill in the gaps by interpreting its own regulation.

The Court has offered no good reason why Auer, while reasonable in some situations, should be applied indiscriminately to all agencies. A multitude of federal agencies exist to effectuate policies touching on everything under the sun—including housing, education, social benefits, food, agriculture, commerce, health, and the environment—but there is one agency in particular whose special attributes suggest that it should not be treated the same as all the others. That is the agency in charge of immigration appeals. One might reasonably think deference, for example, to the Food and Drug Administration’s expert interpretation of what constitutes an “active moiety,” promotes a robust and efficient government necessary for modern complexities. It follows that such agencies deserve deference from a court that is less well versed in the expertise involved in rendering such a judgment. However, immigration presents an entirely different set of policy concerns. 

This is because deference to the Board of Immigration Appeals (“BIA”) under Auer risks political manipulation at the expense of immigrants’ liberty and freedom. Nested under the Department of Justice (“DOJ”), and more specifically the Executive Office of Immigration Review (“EOIR”), the BIA and lower immigration courts operate as quasi-judicial bodies, specifically “prone to political manipulation because of their unique combination of structure, history, and function.”5 A “clarifing” interpretation by the BIA can dictate the scheme by which people are welcomed into or rejected from the United States. The BIA is the unsuspecting gatekeeper, capable of molding the rules by interpretation to advance an anti-immigrant political agenda. Auer, therefore, acts as another tool in the political toolbox to restrict immigration in what is already a labyrinth of proceedings, paperwork, and fear.

This Note argues that Auer deference, even in light of the Supreme Court’s recent clarification of the doctrine, is an inappropriate approach for courts to take when they review the BIA’s rulings. Because the BIA lacks political accountability while simultaneously commingling government powers, deference to the BIA undermines key constitutional principles, such as separation of powers and democracy. Such principles must be enhanced, rather than undermined, more than ever when there is a heightened threat to
liberty. Therefore, a close look is needed to determine whether Auer deference is warranted for an agency in which the very freedoms of immigrants are at stake. The problem actually goes even further. Even if federal courts decided to eschew deference to BIA interpretations, the courts’ own interpretations would still not be an adequate mechanism to protect immigrants from unjust results. With ever-growing caseloads, Article III judges are not equipped with the requisite resources, time, and experience with immigration laws to adjudicate thousands more life-altering decisions in a timely, just manner.6 Immigration matters deserve to be adjudicated with proper accountability and more formalistic separations of power than those that currently stand. To achieve this, immigration courts and the BIA should, as many others have suggested before, be reformulated as Article I legislative courts to best serve democratic and separation of powers purposes. Liberty for immigrants can be salvaged through fairer adjudications and independent interpretations that are more insulated from political manipulation and the polarized ideologies that waft in and out of power.

This Note proceeds as follows: Part I briefly details a background of the BIA, and a current understanding of Auer deference. This discussion includes Auer’s political implications, and how the Supreme Court chose not to overrule the doctrine in Kisor v. Wilkie. This Section then explores the relationship between Auer and the BIA, including why the BIA’s political vulnerability makes the agency particularly unfit for Auer deference. Certain appointees to this agency have been rewarded with a position as a board member by openly declaring their hostility to the very people who are the object of the agency’s mission, and whose fragile life prospects are in their hands. Ironically, this flips the partisan commitments normally seen in the world of administrative law as follows: Those who would classically support increasing agency discretion by according Auer deference should be worried about giving heightened power to the self-declared, anti-immigrant agenda pervading the BIA, while those who would classically resist excessive delegation and deference to agencies, because of their limited accountability, seek to endow the BIA with vast independence and partisan manipulation. Part II argues that even in the wake of Kisor v. Wilkie, deference to the BIA’s interpretations of immigration regulations presents a heightened threat to constitutional principles of separation of powers and democracy. Part III then provides a potential solution to the inadequacy of Auer deference and the judicial role in the realm of regulatory gap filling for immigration laws. 
 

* Executive Development Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A., 2017, University of Michigan, Communications and Minor in Law, Justice & Social Change. I am so deeply grateful for my family and their unending support, especially my dad for always being my sounding board and biggest cheerleader. I want to thank Professor Rebecca L. Brown for her invaluable guidance and inspiring perspective in drafting this Note. And, thank you to the talented Southern California Law Review staff and editors for their thoughtful work throughout this publication process.

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Filling the California Ninth Circuit Vacancies

From Volume 92, Postscript (March 2018)
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FILLING THE CALIFORNIA NINTH CIRCUIT VACANCIES

Carl Tobias[*]

INTRODUCTION

At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Office labeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge Alex Kozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.

Limited clarity about whether more judges will leave active service over Trump’s presidency suggests that additional confirmations may be necessary; however, the selection process’s stunning politicization will compromise this initiative. For example, when the tribunal enjoined Trump’s controversial determinations which excluded immigrants from seven predominately Muslim nations, he excoriated multiple jurists of the circuit. Trump afforded numerous candidates, but merely three have received approval, partly because home state Democratic politicians retained “blue slips” when the White House minimally consulted. The vacancies—which exceed seventeen percent, and three California openings, which are ten—show the crucial need to fill more vacancies.

This piece first analyzes the vacancy conundrum’s history. It evaluates selection throughout the presidencies of Barack Obama and Trump, while scrutinizing California’s pressing situation. Ascertaining that the predicament comes from reduced Democratic and Republican cooperation and some jurists’ departures, this Article reviews that complication’s impacts and detects that systematic partisanship has subverted confirmations, attributes which Trump could exacerbate. Because the plentiful vacancies injure myriad litigants by eroding judicial resources to decide lawsuits, the final Part proffers solutions for the President and the Senate to promptly fill the California openings.

I. Modern Selection Difficulties

The history warrants little treatment here, as others have canvassed the background,[1] and the current standoff enjoys greatest relevance. One aspect is the permanent difficulty that results from enhanced federal jurisdiction, cases and judges.[2] Significant now is the modern concern, which is political and emanates from contrasting Senate and presidential control that started four decades ago.[3] Both constituents have affected California. For instance, rampant population growth driven by rising financial expansion and immigration enlarged district cases with related appeals; thus, circuit seats increased to twenty-eight in 1984.[4] Mounting partisanship also undermined confirmations by slowing and halting nominees.[5] However, certain phenomena tempered appointments problems. Over most of the Ninth Circuit’s 128 years, it faced nominal difficulties. The judicial complement was extremely small, openings were rare, and the chamber easily filled many positions. Indeed, until 1968, the tribunal performed efficaciously with merely nine members.

A 1978 statute authorized manifold posts, while President Jimmy Carter had success, primarily because Democrats held the upper chamber, so President Ronald Reagan had no vacancy upon election.[6] He quickly confirmed jurists, although five positions were created, as the GOP had the chamber Reagan’s initial six years and once Democrats became the majority they coordinated.[7] Senator Joe Biden (D-Del.), the able Judiciary Committee Chair, astutely canvassed nominees, and the majority confirmed Justice Anthony Kennedy and six circuit jurists across the U.S.  over 1988, yet three posts, two located in California, were open upon year’s end.[8] Smooth appointments prevailed for most of George H.W. Bush’s time but slowed in 1992, meaning that a California appellate position was empty.[9]

President Bill Clinton appointed a judge for this slot partially because Democrats acquired a majority in his first half term, but Republicans recaptured Senate control during 1995. At various later times, openings reached ten, including three California posts with his tenure’s end.[10] This situation improved over George W. Bush’s presidency, especially when the GOP enjoyed a majority. He approved several jurists primarily by consulting Democrats; yet controversy arose, leaving a sole vacancy at his time’s close.[11]

In short, judicial appointments were mixed, but certain periods allowed relatively successful endeavors. Illustrations were Bush père and son; yet circumstances gradually deteriorated after United States Court of Appeals for the District of Columbia Circuit Judge Robert Bork’s confirmation fight for the Supreme Court until 2009 when they markedly declined.[12]

II. Obama Administration Selection

The practices worked rather effectively across Obama’s initial six years when Democrats had a chamber majority. He actively consulted home state Republicans, seeking, and normally following, proposals of capable, mainstream nominees.[13] Those initiatives encouraged cooperation in the early Obama era because senators received deference, as they may slow the process through keeping blue slips, which the Senate respected in Obama’s tenure.[14] Even with Obama’s assertive pleading, some did not coordinate by forwarding accomplished prospects.[15]

The GOP collaborated with regular hearings but “held over” discussions and votes a week for all except one circuit nominee.[16] Republicans slowly allowed chamber debates, if required, and ballots, forcing strong centrists to languish months until Democrats pursued cloture.[17] The GOP also sought plenty of roll call votes and debate hours on capable, moderate aspirants, who felicitously captured approval, thus consuming rare floor time.[18] This left some Ninth Circuit vacancies across Obama’s initial half decade; yet he appointed several preeminent, consensus, diverse judges the first three years.[19]

In the 2012 presidential election year, Republicans coordinated less.[20] Delay increased, while appellate confirmations ended in June.[21] Upon Obama’s reelection, Democrats hoped for improved collaboration, but recalcitrance expanded in 2013 when he proffered three fine, mainstream, diverse nominees for the D.C. Circuit, the nation’s second most important tribunal.[22] Republicans provided them no Senate ballots, and protracted obstruction made Democrats unleash the “nuclear option” which confined filibusters, allowing the Ninth Circuit to have every seat filled at 2014’s conclusion.[23]

The following year, once Republicans held a Senate majority,[24] already negligible cooperation decreased. GOP leaders promised to reinstitute “regular order,” the approach which governed before Democrats ostensibly eroded this. In January, Mitch McConnell (R-Ky.), the new Majority Leader, stated, we must “return to regular order.”[25] Chuck Grassley (R-Iowa), the Judiciary Chair, pledged that he would similarly assess prospects.[26] Despite incessant vows, Republicans slowly offered Obama picks hearings and committee votes and chamber debates and ballots. With 2015’s close, these phenomena meant that eight appellate emergencies lacked nominees for states which GOP senators represented, and California had one, when Harry Pregerson took senior status that December.[27]

In Obama’s last half term, the chamber promptly approved Kara Farnandez Stoll, an expert, moderate lawyer, but slowly confirmed District Judge Felipe Restrepo, a prominent centrist, to the Federal and Third Circuits.[28] Appointing so few jurists over two years was nearly unprecedented.[29] In 2016—a presidential election year when circuit approvals conventionally halt early—GOP denial of review to Judge Merrick Garland, Obama’s exceptional Supreme Court nominee,[30] intensified these attributes. Despite the tradition ensuring that preeminent, mainstream nominees receive floor ballots after May, this did not materialize.[31] Obama nominated seven well qualified, moderate candidates—including District Judge Lucy Koh for the California opening—yet none realized appointment.[32]

Judge Koh merits emphasis because she possesses superb abilities, deserved prior confirmation, and warrants Ninth Circuit renomination, and California Democratic Senators Dianne Feinstein and Kamala Harris powerfully favor her elevation.[33] The judge is distinctly qualified.[34] She was the initial Asian American on the Northern District of California [35] and has carefully resolved major litigation, including her effective disposition of Apple’s patent infringement case against Samsung.[36] The nominee earned a well–qualified rating from a substantial majority of the American Bar Association (“ABA”) evaluation committee.[37]

Accordingly, Koh was a dynamic pick who merited appointment, while she resembles many fine Obama confirmees who afford benefits. Circuits with all their jurists can rapidly, economically, and fairly treat huge caseloads.[38] Increased ethnic, gender, and sexual orientation diversity improves comprehension and resolution of critical questions which tribunals decide.[39] Minority judges also curtail prejudices that undermine justice, and they instill public confidence.[40]

Selection and election year politics should not have undercut Koh’s review. Koh is a district jurist, which speeds the process; her ABA and FBI analyses only required updating; she was confirmed once and compiled a long, accessible record.[41] The panel fully investigated her by cooperating with the ABA, FBI, and Department of Justice (“DOJ”).[42] The Chair only set a hearing five months after nomination, although the Ninth Circuit required all posts filled.[43] Feinstein and Barbara Boxer (D-Cal.) introduced Koh, praising her as the classic “American success story.”[44] Members robustly queried the nominee who duly responded.[45] Koh appeared to satisfy most. A few next posited written questions that she promptly answered.[46] Grassley convened a September panel debate [47] where the members rigorously discussed the nominee.[48] Four Republicans, including Grassley, favored Koh, who earned approval.[49]

Many ideas show why she deserved rapid appointment. The GOP leader had a duty to follow the regular order that he always lauds and distinctly relevant Bush precedent.[50] McConnell had numerous weeks to vote on Koh but refused once Trump captured the presidency.[51] Excellent centrists usually attain final ballots, so her proponents should have pursued cloture and senators who honor custom must have agreed.[52] When Koh reached the floor, the leader ought to have arranged a respectful debate, which robustly canvassed many questions, and a chamber vote. In short, Republican obstruction meant that Koh lacked a final ballot and her nomination expired in early 2017.[53]

III. Trump Administration Selection

A. Nomination Process

Over the campaign, Trump promised to name and seat ideological conservatives and kept the vows by sending and confirming Neil Gorsuch and Brett Kavanaugh and manifold similar circuit and certain district nominees.[54] He created records for appointing circuit jurists the initial year with a dozen and eighteen the next but has tapped eight Ninth Circuit picks and only three won confirmation.[55]

Trump applies some customs, yet discards, reverses or deemphasizes others. For instance, he, like modern predecessors, assigned lead nomination efforts to the White House Counsel, located related duties in DOJ and stressed circuit openings.[56] When proffering appellate nominees, former White House Counsel McGahn emphasized conservative perspectives and youth. The Counsel relied on litmus tests, including opposition to the administrative state, and proposed aspirants in their forties, while he often used the list of twenty-five potential Supreme Court picks whom the Federalist Society and Heritage Foundation assembled.[57] Those procedures continue applying because the Society’s Executive Vice President, Leonard Leo, advises Trump on selection.[58] The White House stresses the circuits, as they comprise tribunals of last resort for virtually all cases, announce greater policy than district courts  and issue rulings which cover multiple states.[59]

However, Trump omits and downplays myriad traditions. Crucial is failing to assiduously consult home state politicians, an effective convention which Presidents use that is a critical reason for blue slips.[60] Peculiarly relevant are the conflicting approaches deployed when filling two Ninth Circuit vacancies. McGahn suggested, and Trump nominated, Ryan Bounds without consulting Oregon Democratic Senators Ron Wyden and Jeff Merkley or allowing invocation of a bipartisan selection committee, provoking slips’ aggressive retention.[61] In profound contrast, McGahn avidly consulted Hawaii Democratic Senators Mazie Hirono and Brian Schatz prior to sending Mark Bennett, prompting their full support of him and praise for McGahn’s endeavors in a smooth hearing and Bennett’s quick approval.[62]

A related abandonment of efficacious precedent is the ABA’s nearly complete exclusion from judicial selection. All Presidents after Dwight Eisenhower, save George W. Bush, had employed ABA ratings when proposing candidates, and Obama eschewed candidates whom the ABA ranked not qualified.[63] However, Trump nominated six prospects with this rating.[64]

He also deletes or ignores effective tools. One is not prioritizing nominations by initially filling eighty-seven emergency vacancies, which courts ground in their substantial length or caseloads;[65] in fact, these emergency vacancies have multiplied since Republicans won the chamber.[66] Trump as well nominates fewer picks in states which Democrats represent, even though most have plentiful emergencies.[67] California includes three Ninth Circuit emergencies, but Trump only named Patrick Bumatay, Daniel Collins and Kenneth Lee last October, although the senators opposed confirmation, favoring as nominees Collins, James Rogan and Koh; Bumatay, Collins and Lee received no 2018 hearing, saw their nominations expire and received renomination, with Bumatay receiving renomination to the Southern District of California and Daniel Bress receiving nomination to the Ninth Circuit.[68]

Another useful idea, which Trump rejects or deemphasizes, is enhancing minority individuals’ bench representation, particularly vis-à-vis Democrats.[69] For example, he seemingly effectuated no initiatives that suggest and confirm ethnic minority or lesbian, gay, bisexual, transgender, or queer (“LGBTQ”) prospects by assigning diverse staff to selection or urging that politicians send numerous minorities.[70] Among Trump’s eighty–nine lower federal court confirmees, only Amul Thapar, James Ho, John Nalbandian, Neomi Rao, Karen Gren Scholer, Jill Otake, Fernando Rodriguez, and Terry Moorer are persons of color, and of 170 nominees, twenty-one are – the initial six confirmed, Bumatay, Lee, and five more constitute Asian Americans, while Rodriguez and two others are Latinos, Moorer and four more comprise African Americans, Bumatay is gay, and Mary Rowland is a lesbian.[71]

McGahn consulted Feinstein and Harris somewhat respecting the three California appellate vacancies. Feinstein has marshaled astute panel service, operating collegially with GOP politicians, especially Grassley, and is now the Ranking Member.[72] For example, she promoted controversial Bush circuit nominees, like Kavanaugh, who secured a panel vote, which should ingratiate her with Republicans, but they demonize Feinstein over his recent promotion.

At Trump’s election and for much of 2017, California had one vacancy; yet the Kozinski and Reinhardt departures left it with three, changing the dynamics.[73] In Trump’s first year, Feinstein held productive selection meetings with Mike Pence and the White House Counsel, Donald McGahn.[74] In August 2017, a source claimed that McGahn had analyzed twenty-five people to fill the California vacancy and offered the senators “possible nominees;”[75] while in 2018, outlets said that Feinstein’s panel had reviewed several Trump picks and some candidates whom it first vetted.[76] Despite much press coverage of the two newer California vacancies and speculation proclaiming how Trump might remake the circuit, he named Bumatay, Collins, and Lee in late 2018, notwithstanding the senators’ opposition and concerted efforts to reach a deal by proffering Collins, Rogan, and Koh.[77]

B. Confirmation Process

The appointments process resembled the nomination system’s detrimental features in certain ways by omitting, altering or diluting effective customs or mechanisms. Instructive examples were changing (1) the 100-year-old blue slip procedure—which denies nominee consideration when politicians retain slips—and (2) valuable committee duties.

In fall 2017, Grassley amended the slip policy for circuit nominees by processing aspirants without two home state politicians’ slips, particularly when senators oppose them for “political or ideological” reasons.[78] This altered the construct which both parties applied during Obama’s years, the most recent similar precedent,[79] especially as the Chair modestly supported placing in himself much discretion to decide if the White House “adequately consulted.”[80] Most pertinent was resolution of the dispute between the executive and the Oregon lawmakers.[81] Grassley had not forced the issue by denying the slips effect. He conferred with the politicians and seemingly recognized that Counsel minimally consulted, because Grassley delayed a hearing while the senators tendered candidates whom their panel suggested but ultimately acceded by convening a hearing.[82] He urged that slips are intended to ensure Presidents consult and protect home state prerogatives in the selection process.[83]

The Chair also changed many panel hearing rules and conventions. Integral was arranging ten sessions for two circuit nominees without the minority’s permission and the Ninth Circuit one during a recess for campaigning; ten hearings acutely contrast to Democratic use of three sessions in Obama’s eight years which the GOP had clearly allowed.[84] Circuit hearings were rushed, and they lacked care for nominees who may be life-tenured appointees on courts of last resort.[85] Some appeared to intentionally stall by reiterating questions, and they evasively answered queries.[86]

Many discussions before panel votes similarly lacked content. Legislators rarely engaged on issues about core judicial qualifications. One pernicious deviation was setting hearings, and even votes, before the ABA finished ratings, despite Feinstein’s importuning to have ballots after rankings’ completion. Grassley strenuously asserted that this exogenous political group must not drive scheduling.[87] It was predictable, therefore, that controversial aspirants would secure party-line votes.[88]

These phenomena did not affect the Hawaii vacancy, as McGahn fully consulted the senators about Bennett which prompted their support and rapid chamber analysis.[89] However, the Chair’s determination to not honor the Wyden and Merkley blue slips meant that he processed Bounds, thus undermining slips’ purpose, although when Senator Tim Scott (R-S.C.) raised concerns over his deleterious writings about diversity and people of color, Trump summarily withdrew Bounds.[90]

After the committee reported nominees, analogous, yet less problematic, dynamics frustrated effective canvasses: Both parties forced cloture and roll call ballots on most nominees; members voted in lockstep; and the nuclear option’s 2013 explosion permitted selections to win confirmation on majority ballots.[91] Problematic was compressing six 2018 appellate nominees’ chamber action into one week;[92] this left the minority with deficient resources for preparing.[93] The quality of Senate debates resembled numerous panel discussions,[94] while many of the thirty hours reserved for debate after cloture examined questions lacking relationships to individual nominees.[95]

The GOP Senate majority, like Trump, prioritized seating appellate, over district, judges, nominees in states with Republican senators, conservative white males, and filling non-emergency openings, ideas which mostly derived from the nomination regime.[96] Those facets allowed Trump to set appellate records yet left twenty-plus 2017 district picks without floor votes, while few realized approval in states with two Democrats, only two minority nominees won confirmation and emergencies soared.[97] McGahn neglected blue state Ninth Circuit vacancies, especially in California. Negligible consultation delayed the Oregon effort, and Trump’s deteriorated relations with Republican Senators John McCain, who died, and Jeff Flake, who eschewed reelection, slowed the Arizona nomination.[98]

IV. Reasons For And Implications Of Problematic Selection

The reasons for selection problems are complex,[99] but some commentators trace the “confirmation wars” to Judge Bork.[100] The process has unraveled, as seen with constant partisanship and striking divisiveness—manifested in slowing Kavanaugh and denying Garland review, exploding nuclear options to confirm Gorsuch and Obama nominees whom Republicans blocked and demanding cloture and roll call votes for most nominees.[101]

The effects are crucial. The 2015 to 2016 inaction and Trump’s deficiencies leave eight circuit, and eighty–seven emergency, vacancies, many in the Ninth.[102] Circuits had “few” empty slots at 2014’s close only after Democrats mustered the nuclear option.[103] However, 2015 to 2016 inactivity and judges’ later departures multiplied Ninth Circuit emergencies; California lacked nominees for three until October 2018 while Trump has approved merely three Ninth Circuit jurists.[104] Slow appointments deprive the court of judicial resources to deliver myriad litigants justice.[105] Few circuits address conditions so daunting as the Ninth that resolves immense filings most slowly.[106]

In sum, this canvass elucidates the appellate process’ state, which inattention to California worsened, and the need for speedy action. The Constitution grants the executive and chamber many appointments duties. Clear precedent that supports approvals near a presidency’s institution should govern.[107] The parties, thus, ought to cooperate and fill the California emergencies.

V. Suggestions For Filling The Vacancies

A. General Suggestions

Trump’s major task remains creating an effective government. Confirming Gorsuch and Kavanaugh consumed resources that would have been dedicated to circuits.[108] Trump’s nominal familiarity with judges and selection may explain the California vacancies, but his presidency is rather nascent and ideas may be derived from efforts thus far.[109]

Some behavior inspires little confidence. Trump’s degrading remarks on jurists and their decisions [110] suggest that he confronts more appointments problems than other new executives but may rectify the situation. Because crafting the government and confirming two Justices devoured resources and Trump gave California nominal priority, he must emphasize it.[111]

Trump needed to avidly consult the senators. Cultivation helps in states with two opposition lawmakers, as they could delay processing by retaining slips.[112] The Oregon stalemate manifested the perils of not consulting, while smooth Hawaii approval showed the benefits.[113] Trump ought to have cultivated the Californians, who cooperated and supplied fine, consensus suggestions.[114]

The chief executive should also keep applying earlier Presidents’ salient practices. When appointing circuit judges, one would be nominating federal district judges and state Supreme Court jurists.[115] Related is renominating and easily confirming able, centrist Obama nominees who almost captured appointment, namely Judge Koh.[116] The ideas are constructive, as the chamber has already carefully evaluated and confirmed federal jurists.[117] Many state justices’ activities resemble those of federal circuit judges.[118] Other promising sources are dynamic federal court litigators.[119]

Republican and Democratic Presidents afford White House Counsel abundant responsibility for circuit court nominees.[120] Trump assigns many courts preference yet accorded California little and excluded the ABA.[121] Thus, he should assure California priority, ABA input, and designee canvassing that is more careful. Lawmakers’ sending a few picks and swift, open communications permitted Trump and the senators flexibility. If each persistently rejects all his choices, they should reconcile prolonged differences, as chronic opposition imposes delay, cost and the need to restart consideration.[122]

After nomination, the parties must ensure efficient, intensive and fair confirmation systems. Republicans and Democrats ought to astutely conclude scrutiny by expediting panel, ABA and FBI checks, and nominees should help by fully completing questionnaires.[123] Senators may retain slips, if nominees are unacceptable after they exhaust initiatives to have Trump change aspirants’ path, elements which California senators are pursuing. The core is merit: independence, ethics, intelligence, diligence and temperament.[124] When the White House renominated Collins and Lee and nominated Bress for the Ninth Circuit, the California senators urged Senator Lindsey Graham (R-S.C.), who replaced Grassley as Judiciary Chair, to honor their blue slips.[125] However, Graham stated that “once (Democrats) changed the rules on circuit courts—they did it, not me—to expect that the blue slip system would survive is pretty naïve,” refused to respect the senators’ blue slips[126]—and observed that he was “very supportive of the nominees submitted by President Trump to serve on the Ninth Circuit” because they are “highly qualified nominees.”[127]

Once lawmakers provide slips for qualified nominees, the panel must swiftly convene hearings. Despite when they are fine centrists and nominees’ ABA, FBI, and committee reviews are probing and strong, yielding untroubling conclusions, few members attend sessions that proceed well.[128] Should controversy arise, hearings ought to feature robust, comprehensive and equitable questioning. Senators pose written queries, which nominees carefully answer, while holding meetings to discuss them and vote. If the panel approves, but the majority refuses chamber ballots, designee advocates file cloture that able, mainstream nominees win.[129] The Majority Leader then stages floor debates, which must be complete, rigorous discussions that respect nominees and the process, and conducts fast votes.

B. Specific Vacancies

Trump should have assiduously consulted Feinstein and Harris, who cooperated by proffering multiple able, consensus designees for every opening. The senators asked him to rename Judge Koh, who achieved February 2016 nomination.[130] Promptly filling all vacancies is compelling for myriad litigants, jurists, and California active circuit judge representation.

Trump ought to have assessed renaming Koh,[131] because she deserved a 2016 final vote which GOP obstruction prevented, but Koh would now have to secure only that and a panel ballot. The last idea shows why she merits selection and approval: California needs three jurists, the panel, ABA and FBI recently scrutinized Koh fully and their prior surveys necessitate mere updating. Precedent sustains that effort. Koh warrants no hearing, as Grassley mandated none for the many Obama district nominees Trump renamed, yet members who opposed Koh earlier and newer colleagues might favor a hearing.[132]

California requires each vacancy filled, so the politicians agreed on a few candidates they support, but the President named others, despite the endeavors of the senators, who pointedly retain blue slips. They must keep slips, which the Chair needs to honor. During October, the senators proposed Collins, Rogan, and Koh, who merit Trump’s serious review, as they would promote quick, smooth confirmation, which fills half the circuit vacancies with one nominee he tapped, another on the White House list, who is an experienced jurist, and a third who is on the senators’ list and is a respected federal judge.[133]

Because Trump may reject the senators’ deal and needs multiple nominees, Feinstein and Harris might assemble other prospects. One source is the twenty-plus Obama California district appointees—most have been superb jurists across years. For instance, Central District Judge Dolly Gee affords ethnic, and rare experiential, diversity, from prodigious work on labor issues.[134] Twenty-one Bush confirmees have served well over more than a decade. For example, Gee’s colleague, Andrew Guilford, would impart expertise from dozens of years being a revered civil litigator and federal jurist.[135]

The California Supreme Court is another possibility. Justices Goodwin Liu and Mariano-Florentino Cuéllar were groundbreaking law faculty, while Justice Leondra Kruger practiced at the U.S. Solicitor General’s Office.[136] Trump could also prefer more conservative aspirants, notably Chief Justice Toni Cantil-Sakauye.[137] Active federal court litigators would be apt sources. For instance, Obama confirmees Paul Watford and Michelle Friedland were excellent attorneys with a respected firm.[138] Counsel whom Trump or Feinstein’s panel assessed were Daniel Bress, Collins, Lee and Jeremy Rosen.[139]

Once the senators concurred, they proposed several strong prospects for each slot to Trump, who should have proffered mutually satisfactory nominees.[140] The many exceptional California attorneys and three vacancies offer much flexibility vis-à-vis ethnic, gender, sexual orientation, ideological and experiential diversity. A finely-calibrated analysis of these diversity facets and other relevant criteria, namely diligence, intelligence and ethics, was merited.

Because Trump and the senators differ, they could use a more dramatic approach: the “bipartisan judiciary,” which a few states’ lawmakers employ.[141] Members of the party lacking executive control suggest a percentage of nominees. Reasoning by analogy, Trump may choose one and the senators can propose a second, while he and they might agree on a third. A related option is “trades.”[142] For example, Trump may nominate one stellar, conservative, young aspirant, the politicians might send Koh and the third nominee would be a Bush district confirmee whom all favor.[143] When he and senators concur, they ought to apply efficient, comprehensive and fair confirmation processes like those reviewed.[144]

Conclusion

The Ninth Circuit addresses least promptly the biggest docket mainly because it confronts five emergencies, three affecting California. If President Trump, Senators Feinstein and Harris, and the chamber robustly adopt the mechanisms scrutinized, they can expeditiously fill these vacancies with able, consensus jurists.

 

[*] *. Williams Chair in Law, University of Richmond School of Law. I wish to thank Margaret Sanner for valuable suggestions, Emily Benedict for valuable research and editing, the Southern California Law Review Postscript editors for valuable suggestions and editing, Leslee Stone and MJ Chinworth for excellent processing as well as Russell Williams and the Hunton Andrews Kurth Summer Research Endowment Fund for generous, continuing support. Remaining errors are mine alone.

 [1]. Miller Ctr. Comm’n No. 7, Report of the Commission on Selecting Federal Judges 3–6 (1996); Gordon Bermant et al., Judicial Vacancies: An Examination of the Problem and Possible Solutions, 14 Miss. C. L. Rev. 319, 320–33 (1994). California has fourteen active Ninth Circuit judgeships.

 [2]. It needs less scrutiny; some delay is intrinsic, resists meaningful change and has been analyzed. Carl Tobias, Combating the Ninth Circuit Judicial Vacancy Crisis, 73 Wash. & Lee L. Rev. Online 687, 689–91 (2017).

 [3]. Some periods, as 2017 to 2018, have one-party control. For fuller treatment, see generally Miller Ctr. Comm’n, supra note 1; Bermant, supra note 1, and Tobias, Combating Ninth Circuit Vacancies, supra note 2.

 [4]. See, e.g., Pub. L. No. 95-486, 92 Stat. 1629 (1978) (increasing the number of circuit and district court judgeships); Pub. L. No. 98-353, 98 Stat. 345 (1984) (same); Pub. L. No. 110-177 §509, 121 Stat. 2534, 2543 (2008) (transferring a D.C. Circuit judgeship to the Ninth Circuit and bringing the Ninth Circuit judgeships to 29).

 [5]. That partisanship was incremental, declining after Judge Robert Bork’s monumental Supreme Court battle. However, even later, some cooperation occurred. See discussion infra notes 7–9, 12. See generally Charles Geyh, When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (2007) (discussing the relationship between Congress and the federal courts).

 [6]. See U.S. Cts., Vacancies in the Federal Judiciary: August 1, 1981, at 4 (1981); see also Sheldon Goldman, Picking Federal Judges: Lower Court Selection From Roosevelt Through Reagan 285–345 (1997).

 [7]. See 143 Cong. Rec. S2,541 (daily ed. Mar., 19, 1997) (statement of Sen. Biden); see also Goldman, supra note 6, at 285–345. 

 [8]. See U.S. Cts., Vacancies in the Federal Judiciary (Article III Judges Only): November 1, 1988, at 3 (1988). Bork was an exception to collegial selection.

 [9]. U.S. Cts., Vacancies in the Federal Judiciary Article III Judges Only): November 1, 1993, at 3 (1993).

 [10]. Clinton’s naming fine centrists and a few GOP senators’ help meant that some states functioned well. See generally U.S. Cts., Vacancies in the Federal Judiciary Article III Judges Only): November 1, 1995; U.S. Cts., Vacancies in the Federal Judiciary Article III Judges Only): November 1, 2000.

 [11].  See generally U.S. Cts., Vacancies in the Federal Judiciary Article III Judges Only): November 1, 2007; U.S. Cts., Vacancies in the Federal Judiciary Article III Judges Only): November 1, 2008 (confirming ten 2007 to 2008 George W. Bush circuit picks); S. Judiciary Comm., Exec. Business Mtg. (Feb. 15, 2018) (evaluating a California-Idaho dispute over which state would fill Judge Stephen Trott’s vacancy).

 [12]. E.g., Mark Gitenstein, Matters of Principle: An Insider’s Account of America’s Rejection of Robert Bork’s Nomination to the Supreme Court 11–12 (1992); Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 18 n.14 (2007). See generally Geyh, supra note 5.

 [13]. Carl Tobias, Senate Gridlock and Federal Judicial Selection, 88 Notre Dame L. Rev. 2233, 2239–40, 2253 (2013); see also Sheldon Goldman et al., Obama’s First Term Judiciary, 97 Judicature 7, 8–17 (2013).

 [14]. No nominee moved without two slips. Carl Tobias, Senate Blue Slips and Senate Regular Order, Yale L. & Pol’y Rev. Inter Alia (Nov. 20, 2018). But see discussion infra notes 78–83 and accompanying text.

 [15]. Some sent none. Goldman et al., supra note 13, at 17; see also 161 Cong. Rec. S6,151 (daily ed. July 30, 2015).

 [16]. S. Judiciary Comm., Exec. Business Mtg. (Mar. 22, 2013); see also Tobias, supra note 13, at 2242–43.

 [17]. I depend below on Goldman et al., supra note 13, at 26–29; Tobias, supra note 13, at 2243–46.

 [18]. Tobias, supra note 13, at 2244; see also Juan Williams, The GOP’s Judicial Logjam, Hill (July 27, 2015), https://thehill.com/opinion/juan-williams/249196-juan-williams-the-gops-judicial-logjam.

 [19]. Judicial Vacancy List for December 2009, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2009/12/vacancies/html (last visited Feb. 18, 2019); Judicial Vacancy List for December 2014, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2014/12/vacancies/html (last visited Feb. 18, 2019); see also 156 Cong. Rec. S4,608 (daily ed. June 7, 2010) (discussing and confirming judicial nominee Lucy Koh); id. at S10,986 (daily ed. Dec. 22, 2010) (discussing and confirming judicial nominee Mary Murguia); 157 Cong. Rec. S8,625 (daily ed. Dec. 15, 2011) (discussing and confirming judicial nominee Morgan Christen).

 [20]. Tobias, supra note 13, at 2246; Russell Wheeler, The ‘Thurmond Rule’ and Other Advice and Consent Myths, Brookings Inst. (May 25, 2016), https://www.brookings.edu/blog/fixgov/2016/05/25
/the-thurmond-rule-and-other-advice-and-consent-myths; Michael Shear et al., Obama Pick Opens Court Battle, N.Y. Times, Mar. 17, 2016, at A1; see also S. Judiciary Comm., Exec. Business Mtg. (Mar. 17, 2016) (statement of Sen. Leahy); S. Judiciary Comm., Exec. Business Mtg. (May. 19, 2016) (statement of Sen. Grassley); Carl Tobias, Confirming Circuit Judges in a Presidential Election Year, 84 Geo. Wash. L. Rev. Arguendo 160, 169 (2016).

 [21]. 158 Cong. Rec. S4,108 (daily ed. June 12, 2012) (elevating Andrew Hurwitz). Jacqueline Nguyen and Paul Watford won 2012 approval to California seats. Id. at S2,931 (daily ed. May 14, 2012); id. at S3,388 (daily ed. May 21, 2012).

 [22]. See generally Carl Tobias, Filling the D.C. Circuit Vacancies, 91 Ind. L.J. 121 (2015) (discussing the filling of three D.C. Circuit vacancies at this time).

 [23]. John Owens and Michelle Friedland won approval to California seats. 160 Cong. Rec. S1,881 (daily ed. Mar. 31, 2014); id. at S2,426 (daily ed. Apr. 28, 2014).

 [24]. Jerry Markon et al., Republicans Win Senate Control as Polls Show Dissatisfaction with Obama, Wash. Post (Nov. 4, 2014), http://wapo.st/1rZ20TB?tid=ss_tw&utm_term=.d7667ffae95a; Jonathan Weisman, G.O.P. Takes Senate, N.Y. Times, Nov. 5, 2014, at A1.

 [25]. He repeats the mantra. 161 Cong. Rec. S27 (daily ed. Jan. 7, 2015); id. at S2,767 (daily ed. May 12, 2015).

 [26]. S. Judiciary Comm., Hearing on Nominees (Jan. 21, 2015).

 [27]. They helped little, so Obama sent no 2015 nominee. See Judicial Emergencies for December 2015, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2015/12/emergencies (last visited Feb. 18, 2019); Judicial Emergencies for December 2016, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies
/2016/12/emergencies (last visited Feb. 18, 2019).

 [28]. Carl Tobias, Confirming Judge Restrepo to the Third Circuit, 88 Temple L. Rev. Online 37, 38 n.4, 45–46 (2017).

 [29]. Chris Kang, GOP Obstruction Could Be Worst Since the 1800s, Huffington Post (Apr. 20, 2016), https://www.huffingtonpost.com/christopher-kang/republican-obstruction-of_b_9741446.html; see also discussion supra notes 8, 11 and accompanying text.

 [30]. Wheeler, supra note 20; Shear et al., supra note 20, at A1.

 [31]. Tobias, Confirming Circuit Judges in a Presidential Election Year, supra note 20, at 169; see also S. Judiciary Comm., Exec. Business Mtg. (Mar. 17, 2016) (statement of Sen. Leahy); S. Judiciary Comm., Exec. Business Mtg. (May. 19, 2016) (statement of Sen. Grassley).

 [32]. See generally Carl Tobias, Confirm Judge Koh to the Ninth Circuit, 74 Wash. & Lee L. Rev. 449 (2016); Tobias, supra note 31.

 [33]. Emily Cadei, Dianne Feinstein, Kamala Harris Try to Cut a Deal with Trump, Sacramento Bee (May 22, 2018), https://www.sacbee.com/news/politics-government/capitol-alert
/article211603954.html; Zoe Tillman, Here’s How Trump Is Trying to Remake His Least Favorite Court, Buzzfeed News (Mar. 15, 2018), https://www.buzzfeednews.com/article/zoetillman/heres-who-the-white-house-pitched-for-the-federal-appeals; see also Letter from Sen. Dianne Feinstein to Donald McGahn, White House Counsel (Oct. 5, 2018), https://www.feinstein.senate.gov/public/_cache/files
/d/4/d4757388-8ebc-446c-8283-1719f1054d60/C0422EA4863812AFB2A2BEF78E242426.2018.10.5-df-letter-to-mcgahn-re.-ninth-circuit.pdf.

 [34]. She was a well-respected prosecutor, law firm partner, and Superior Court and Northern District of California judge, earning an excellent reputation since 2010. For these ideas and more, see Tobias, supra note 32, at 450.

 [35]. Bob Egelko, Lucy Koh Nominated for U.S. Court of Appeals in S.F., S.F. Gate (Feb. 25, 2016), https://www.sfgate.com/bayarea/article/Obama-nominates-local-judge-to-federal-appeals-6855113.php; Howard Mintz, San Jose Judge Lucy Koh Nominated to Federal Appeals Court, Mercury News (Feb. 25, 2016), https://www.mercurynews.com/2016/02/25/san-jose-judge-lucy-koh-nominated-to-federal-appeals-court.

 [36]. Apple v. Samsung, No. 11–CV–01846–LHK, 2011 WL 7036077 (N.D. Cal. Dec. 2, 2011); see also In re High-Tech Emp. Antitrust Litig., 856 F. Supp. 2d 1103 (N.D. Cal. 2012) (settling ably 3000 workers’ antitrust claims).

 [37]. See generally ABA Standing Comm. on the Fed. Judiciary, Ratings of Article III and Article IV Judicial Nominees: 114th Congress (2017).

 [38]. 160 Cong. Rec. S5,364 (daily ed. Sept. 8, 2014) (statement of Sen. Leahy); Tobias, Senate Gridlock and Federal Judicial Selection, supra note 13, at 2239, 2254.

 [39]. They resolve cases that involve critical issues like civil rights and abortion. For additional discussion on these issues, see Sally Kenney, Gender and Justice: Why Women in the Judiciary Really Matter (2013); Frank Wu, Yellow: Race in America Beyond Black and White (2003). But see Stephen Choi et al., Judging Women, 8 J. Empirical Legal Stud. 504 (2011).

 [40]. Report, First Circuit Gender, Race and Ethnic Bias Task Forces (1999); Sylvia Lazos, Only Skin Deep?: The Cost of Partisan Politics on Minority Diversity of the Federal Bench, 83 Ind. L.J. 1423, 1442 (2008); Tobias, supra note 13, at 2249.

 [41]. Tobias, Senate Gridlock and Federal Judicial Selection, supra note 13, at 2258; see also discussion supra note 36 and accompanying text for more on Koh’s qualifications.

 [42]. Koh had been vetted, so evaluation was brief. See Egelko, supra note 35; Mintz, supra note 35.

 [43]. See supra notes 8, 29 and accompanying text. He also needed to reciprocate for Democrats’ appointing ten circuit judges, one to an Idaho seat, in Bush’s last two years. 

 [44]. S. Judiciary Comm., Hearing on Nominees (July 13, 2016).

 [45]. John Cornyn (R-Tex.) asked why she “effectively invalidated the Electronic Privacy Act.” Id.; In re Google Inc. Gmail Litigation, No. 13–MD–02430–LHK, 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014). Her circuit lacked precedent, so she consulted other cases.

 [46]. Hearing, supra note 44. Most were uncontroversial; her responses were careful.

 [47]. The GOP held over Koh like most nominees. S. Judiciary Comm., Exec. Business Mtg. (Sept. 8, 2016); S. Judiciary Comm., Exec. Business Mtg. (Mar. 22, 2013); see also Tobias, supra note 13, at 2242–43.

 [48]. Cornyn based opposition on the Google opinion. S. Judiciary Comm., Exec. Business Mtg. (Sept. 15, 2016); see supra note 45 for further discussion.

 [49]. S. Judiciary Comm., Exec. Business Mtg. (Sept. 15, 2016). Obama-elevated judges—whom Judge Nguyen typifies—easily won panel votes, as they had captured them and appointment once. S. Judiciary Comm., Exec. Business Mtg. (Dec. 1, 2011); see supra note 21 for further discussion.

 [50]. Tobias, Confirm Judge Koh to the Ninth Circuit, supra note 32, at 454, 455 n.29 (urging regular order and confirmation of 2008 Bush nominees).

 [51]. Tobias, Confirming Circuit Judges in a Presidential Election Year, supra note 31; see also 162 Cong. Rec. S5,312 (daily ed. Sept. 7, 2016) (denying Obama nominees floor votes). Many GOP senators opposed any Supreme Court choice; few opposed Koh. Ted Cruz, The Scalia Seat: Let the People Speak, Wall St. J. (Mar. 6, 2016), https://www.wsj.com/articles/the-scalia-seat-let-the-people-speak-1457307358.

 [52]. Tobias, Confirm Judge Koh to the Ninth Circuit, supra note 32, at 457 nn.36–41; see also supra note 2 and accompanying text.

 [53]. 162 Cong. Rec. S7,183 (daily ed. Jan. 3, 2017).

 [54]. Carl Tobias, Confirming Justices in a Presidential Election Year, 94 Wash. U. L. Rev. 1093, 1103 (2017); Judicial Vacancy List for December 2017, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2017/12/vacancies (last visited Feb. 18, 2019); Judicial Vacancy List for December 2018, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2018/12/vacancies (last visited Feb. 18, 2019); Amber Phillips, Another Big Mitch McConnell Supreme Court Gamble Looks Set to Pay Off, Wash. Post (Oct. 4, 2018), https://www.washingtonpost.com/politics/2018/10/04/another-big-mitch-mcconnell-supreme-court-gamble-looks-set-pay-off/?.

 [55]. (Judicial Confirmations for December 2009, U.S. Cts., https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies
/2009/12/confirmations/html (last visited Feb. 18, 2019); Judicial Confirmations for December 2017, U.S. Cts., https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies
/2017/12/confirmations (last visited Feb. 18, 2019); Judicial Confirmations for December 2018, U.S. Cts., https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies
/201/12/confirmations (last visited Feb. 18, 2019); for further discussion see infra notes 67–68, 87–88. I rely below on Jason Zengerle, Bench Warfare, N.Y. Times, Aug. 26, 2018, at SM30.

 [56]. Tobias, Senate Gridlock and Federal Judicial Selection, supra note 13, at 2240; Robert Costa, McGahn’s Last Stand, Wash. Post (Oct. 4, 2018), https://wapo.st/2RoSiiY?tid=ss_tw&utm
_term=.c4cbd464d2de; see also Michael Schmidt & Maggie Haberman, Lawyer for President Steps Down, N.Y. Times, Oct. 18, 2018, at A13.

 [57]. Jeremy Peters, Trump’s New Judicial Litmus Test: Shrinking the ‘Administrative State’, N.Y. Times (March 26, 2018), https://www.nytimes.com/2018/03/26/us/politics/trump-judges-courts-administrative-state.html; Charlie Savage, Courts Reshaped at Fastest Pace in 5 Decades, N.Y. Times, Nov. 12, 2017, at A1; see also infra note 77 for further discussion.

 [58]. Zoe Tillman, After Eight Years on the Sidelines, This Conservative Group Is Primed to Reshape the Courts Under Trump, BuzzFeed News (Nov. 20, 2017), https://www.buzzfeednews.com
/article/zoetillman/after-eight-years-on-the-sidelines-this-conservative-group. For more discussion of Leo’s impact, see Richard Patterson, The Man Behind Trump’s Judicial Nominees, Boston Globe (Sept. 16, 2018), https://www.bostonglobe.com/opinion/2018/09/06/the-man-behind-trump-conservative-judicial-nominees/bJOU7yNNHSGKkcSEXbb4KM/story.html.

 [59]. Tobias, Senate Gridlock and Federal Judicial Selection, supra note 13, at 2240–41; Joan Biskupic, Trump Fast-Tracks Appeals Judges, but Lags on Lower Courts, CNN (May 25, 2018), https://www.cnn.com/2018/05/25/politics/appeals-district-court-trump/index.html.

 [60]. Thomas Kaplan, Trump Is Putting Indelible Stamp on Judiciary, N.Y. Times, Aug. 1, 2018, at A15; Tillman, supra note 33.

 [61]. Press Release, White House, Office of the Press Sec’y, President Donald Trump Announces Seventh Wave of Judicial Nominees (Sept. 7, 2017), https://www.whitehouse.gov/presidential-actions
/president-donald-j-trump-announces-seventh-wave-judicial-candidates; Letter from Donald McGahn, White House Counsel, to Sens. Ron Wyden & Jeff Merkley (Sept. 6, 2017), https://assets.documentcloud.org/documents/4042623/9-6-17-McGahn-Letter.pdf; Letter from Sens. Ron Wyden & Jeff Merkley to Don McGahn, White House Counsel (Sept. 7, 2017), http://static.politico.com
/59/2a/f5b886e44d6ba505b1551125a32e/wh-judicial-vacancy-signed.pdf; see also infra notes 81–82, 90 for more on later history.

 [62]. Press Release, White House, Office of the Press Sec’y, President Donald Trump Announces Eleventh Wave of Judicial Nominees (Feb. 12, 2018), https://www.whitehouse.gov/presidential-actions
/president-donald-j-trump-announces-eleventh-wave-judicial-nominees; see also S. Judiciary Comm., Hearing on Nominees (Apr. 11, 2018). For more on later history, see infra note 89.

 [63]. 163 Cong. Rec. S8,022, S8,024 (daily ed. Dec. 14, 2017) (statements of Sens. Leahy & Feinstein).

 [64]. Ratings, 115th Cong., supra note 37. The GOP contested Steven Grasz’s rating, alleging that the ABA is a liberal interest group. See S. Judiciary Comm., Hearing on Nominees (Nov. 1, 2017); S. Judiciary Comm., Exec. Business Mtg. (Dec. 7, 2017); see also 163 Cong. Rec. S7,965 (daily ed. Dec. 12, 2017) (Grasz’s approval); Adam Liptak, White House Cuts A.B.A. Out of Judge Evaluations, N.Y. Times, Apr. 1, 2017, at A16.

 [65]. Judicial Emergencies for March 2019, U.S. Cts.,  https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2019/03/emergencies (last visited Mar. 11, 2019) (showing that seven of eight circuit vacancies are emergencies).

 [66]. They soared from twelve to eighty-seven. Id. (2019 Judicial Emergencies); Judicial Emergencies for December 2015, U.S. Cts.,  https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2015/12/emergencies (last visited Feb. 19, 2019). But see Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Tenth Wave of Judicial Nominees (Jan. 23, 2018), https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-tenth-wave-judicial-nominees.

 [67]. For more blue state nominees, see Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Ninth Wave of Judicial Nominees (Dec. 20, 2017); Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Fourteenth Wave of Judicial Nominees, May 10, 2018; Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Sixteenth Wave of Judicial Nominees, July 13, 2018; Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Eighteenth Wave of Judicial Nominees, Oct. 10, 2018. Data verify “red” state priority. Judicial Emergencies, U.S. Cts., https://www.uscourts.gov/judges-judgeships/judicial-vacancies/judicial-emergencies (last visited Feb. 19, 2019).

 [68]. When the White House issued a notice of intent to renominate fifty of the seventy-three candidates whose nominations expired on January 2, which excluded all three, the Wall Street Journal published an editorial that criticized the White House Counsel for negotiating with the California senators and urged prompt renomination. Editorial, A Bad Judges Deal, Wall St. J. (Jan. 29, 2019), https://www.wsj.com/articles/a-bad-judges-deal-11548807717. The editorial ignited a firestorm of criticism from conservative media that apparently triggered the renominations, leaving the situation unclear. Press Release, White House, Office of the Press Sec’y, President Donald Trump Announces His Intent to Nominate Judicial Nominees (Jan. 22, 2018); Press Release, White House, Office of the Press Sec’y, President Donald Trump Announces His Intent to Nominate Judicial Nominees (Jan. 30, 2018); Press Release, Feinstein, Harris on Ninth Circuit Nominees (Jan. 30, 2019); Eighteenth Wave, supra note 67; Letter from Sen. Dianne Feinstein to Donald McGahn, supra note 33; 165 Cong. Rec. S23 (daily ed. Jan. 2, 2018) (expired nominations). The nominees are lawyers. Rogan is a respected California Superior Court Judge. 

 [69]. Carl Tobias, President Donald Trump and Federal Bench Diversity, 74 Wash. & Lee L. Rev. Online 400 (2018); Michael Nelson & Rachel Hinkle, Trump Appoints Lots of White Men as Federal Judges. Here’s Why It Matters., Wash. Post (Mar. 13, 2018), http://wapo.st/2Hn6aUT?tid=ss_tw&utm
_term=.e00c0046f478.

 [70]. LGBTQ means “out” sexual orientation; it is possible that some may not have revealed theirs. LGBTQ people are considered “minorities” here. Jennifer Bendery, Trump Finally Has an LGBTQ Judicial Nominee, Huffington Post (June 7, 2018), https://www.huffingtonpost.com/entry/trump-lesbian-judicial-nominee-mary-rowland_us_5b19b351e4b09d7a3d708461.

 [71]. For confirmees, see Judicial Confirmations for December 2017, U.S. Cts.,
https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2017/12
/confirmations (last visited Feb. 19, 2019); Judicial Confirmations for December 2018, U.S. Cts., https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2018/12
/confirmations (last visited Feb. 19, 2019). For nominees, see Seventh Wave, supra note 61; Tenth Wave, supra note 66; 4 Waves, supra note 67; Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Twelfth Wave of Judicial Nominees (Apr. 10, 2018); Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Thirteenth Wave of Judicial Nominees (Apr. 26, 2018); Press Release, White House, Office of the Press Sec’y, President Donald Trump Nominates Fifteenth Wave of Judicial Nominees (June 7, 2018).

 [72]. Michael Doyle, What’s Ahead for West’s Liberal Appeals Court, Once Trump Takes Over?, Sacramento Bee (Nov. 23, 2016), https://www.sacbee.com/news/politics-government
/article116777848.html?utm_medium=referral&utm_campaign=amp&utm_source=www.sacbee.com-RelayMediaAMP; see Sarah Wire, Is Trump Finally Ready To Turn His Sights Toward Remaking the Ninth Circuit?, L.A. Times (Aug. 15, 2018), https://www.latimes.com/politics/la-na-pol-ninth-circuit-vacancies-20180815-story
.html.

 [73]. Maura Dolan, Ninth Circuit Judge Alex Kozinski Steps Down After Allegations of Sexual Misconduct, L.A. Times (Dec. 18, 2017), https://www.latimes.com/politics/la-pol-ca-judge-alex-kozinski-20171218-story.html; Noah Feldman, The 9th Circuit Court Battle Falls Silent, BloombergView (Apr. 2, 2018), https://www.bloomberg.com/opinion/articles/2018-04-02/stephen-reinhardt-alex-kozinski-and-the-battle-for-9th-circuit; Carl Hulse, Judge’s Death Gives Trump a Chance to Remake a Vexing Court, N.Y. Times, Apr. 8, 2018, at A13.

 [74]. Seung Min Kim, Trump Has Not Taken Aim at the Court That Annoys Him Most, Wash. Post (May 6, 2018), https://www.washingtonpost.com/politics/trump-is-transforming-the-judiciary-but-he-has-yet-to-take-aim-at-the-court-that-annoys-him-most/2018/05/06/53886d30-4f9d-11e8-b966-bfb0da2dad62_story.html;  Zoe Tillman, Why Trump Must Work with the Senate, Including Democratic Senators, To Confirm His Judges, BuzzFeed News (Mar. 31, 2017), https://www.buzzfeednews.com
/article/zoetillman/why-trump-will-have-to-work-with-democrats-to-get-his.

 [75]. David Lat, Federal Judicial Nominations: A Quick Recap, Above the Law (Aug. 18, 2017), https://abovethelaw.com/2017/08/federal-judicial-nominations-a-quick-recap.

 [76]. Id.; Kim, supra note 74; see also supra notes 33, 68.

 [77]. The senators first suggested the third be mutually agreeable but substituted Collins to increase the offer’s appeal. The initial White House decision to not renominate the three California October nominees apparently reflected ongoing negotiations between it and the senators, which the conservative media onslaught extinguished. See supra note 68; see also Letter from Sens. Feinstein and Harris to Pat Cipollone, White House Counsel, Nov. 19, 2018; Emily Cadei, Trump Will Have to Nominate 9th Circuit Judges All Over Again in 2019, Sacramento Bee (Dec. 28, 2018), https://www.sacbee.com/latest-news/article223580900.html; supra notes 33, 57, 67, 73, 75.

  The committee scheduled a March 13 hearing for Collins and Lee, despite the California senators’ powerful opposition and retention of blue slips. S. Judiciary Comm., Hearing on Nominees (Mar. 13, 2019); Press Release, Feinstein and Harris: Kenneth Lee Nomination Hearing Should Not Move Forward (Mar. 4, 2019); Marianne Levine, Trump Judicial Pick Facing Scrutiny Over Extreme Views in Past Writings, Politico (Mar. 3, 2019), https://www.politico.com/story/2019/03/04/kenneth-lee-9th-circuit-1202707; But see Editorial, Kenneth Kiyul Lee’s White Privilege, Wall St. J. (Mar. 5, 2019), https://www.wsj.com/articles/kenneth-kiyul-lees-white-privilege-11551741146; Senators Feinstein and Harris also opposed, and retained blue slips on, Bress partly because the nominee lacks California ties. S. Judiciary Comm., Exec. Business Mtg. (Mar. 7, 2019); Press Release, Feinstein Speaks on Blue Slips, Ninth Circuit Nominees (Mar. 7, 2019); Michael Macagnone, Trump Ninth Circ. Pick’s Lack of Calif. Ties May Imperil Chances, Law360 (Mar. 7, 2019, https://www.law360.com/legalindustry/articles/1136369?utm_source=rss&utm_medium=rss&utm_campaign=section.

 [78]. 163 Cong. Rec. S7,174 (daily ed. Nov. 13, 2017); S. Judiciary Comm., Hearing on Nominees (Nov. 29, 2017); Letter from Sen. Chuck Grassley to Sens. Patty Murray & Maria Cantwell, Oct. 18, 2018. But see Letter from Sen. Murray to Sen. Grassley, Oct. 22, 2018.

 [79]. Grassley honored this Obama’s last two years; Patrick Leahy (D-Vt.) did the first six. See Mtg., supra note 11.

 [80]. Id.; S. Judiciary Comm., Hearing on Nominees (June 6, 2018) (hearing when Sen. Casey kept slip); S. Judiciary Comm., Hearing on Nominees (Oct. 10, 2018) (same for Sen. Brown); S. Judiciary Comm., Hearing on Nominees (Oct. 24, 2018) (same for Sens. Murray & Cantwell); see supra note 78; 164 Cong. Rec. S2,607 (daily ed. May 10, 2018).

       82      Maxine Bernstein, Oregon U.S. Senators Say Federal Prosecutor Ryan Bounds Unsuitable for 9th Circuit, Oregonian (Feb. 12, 2018), https://www.oregonlive.com/portland/2018/02/oregons
_us_senators_say_federa.html; Jimmy Hoover, 9th Circ. Pick Forces Grassley to Choose: Trump or Tradition?, Law360 (Mar. 29, 2018), https://www.law360.com/articles/1025855. For further discussion see supra note 61.

 [82]. S. Judiciary Comm., Hearing on Nominees (May 9, 2018); see also Bernstein, supra note 81 (analyzing the four picks, including Bounds, the panel recommended and senators’ reasons for continuing to oppose Bounds). For further discussion see supra notes 13–15, 61.

 [83]. See supra notes 13–15.

 [84]. E.g., S. Judiciary Comm., Hearing on Nominees (Oct. 10, 24, 2018); S. Judiciary Comm., Hearing on Nominees (Oct. 17, 2018) (this and second hearing held in recess); Carl Tobias, Filling the Fourth Circuit Vacancies, 89 N.C. L. Rev. 2161, 2174–76 (2011) (Obama example).

 [85]. Feinstein statement, supra note 63; Leahy statement, supra note 63.

 [86]. Judge Ho did not discuss his DOJ torture advice, which DOJ did not disclose, and Judge Don Willett dodged many queries. S. Judiciary Comm., Hearing on Nominees (Nov. 15, 2017); see also Leahy Statement, supra note 63.

 [87]. S. Judiciary Comm., Exec. Business Mtg. (June 14, 2018); Patrick Gregory, ABA Rates Picks Not Qualified, BloombergLaw (Sept. 17, 2018), https://news.bloomberglaw.com/us-law-week/trump-picks-more-not-qualified-judges-1; Statements, supra note 63 (ABA input’s value); see also supra notes 57–58 (external group).

 [88]. For committee approval and Senate confirmation of Judge Michael Brennan, see S. Judiciary Comm., Exec. Business Mtg. (Feb. 15, 2018), supra note 11; 164 Cong. Rec. S2,607 (daily ed. May 10, 2018); supra note 64 (same for Grasz).

 [89]. S. Judiciary Comm., Exec. Business Mtg. (May 10, 2018); 164 Cong. Rec. S4,858 (daily ed. July 10, 2018); see also supra note 62; David Lat, President Trump’s Eleventh Wave of Judicial Nominees, Above the Law ( Feb. 23, 2018), https://abovethelaw.com/2018/02/president-trumps-eleventh-wave-of-judicial-nominees.

 [90]. The members failed to discuss Bounds before voting. S. Judiciary Comm., Exec. Business Mtg. (June 7, 2018); 164 Cong. Rec. S5,098 (daily ed. July 19, 2018) (nomination’s withdrawal); see also supra notes 61, 82.

 [91]. See sources cited supra notes 17–18, 22–23, 89.

 [92]. U.S. Senate Democrats, Schedule for May 7, Apr. 26, 2018. Bush and Obama never approved so many.  Judicial Vacancy List for December 2017, U.S. Cts, https://www.uscourts.gov
/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2017/12/vacancies (last visited Feb. 18, 2019); Judicial Vacancy List for December 2018, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2018/12/vacancies  (last visited Feb. 18, 2019); supra note 6 (Bush); see the judicial vacancy list from 2009 to 2017 for Obama.

 [93]. 2017 notice on four came Thursday evening as senators recessed. S. Judiciary Comm., Exec. Business Mtg. (Nov. 2, 2017); U.S. Senate Democrats, Schedule for Oct. 31, Oct. 26, 2017.

 [94]. See supra notes 88–89.

 [95]. When senators address nominees, few members hear them. GOP senators find the thirty-hour post-cloture rule so unhelpful they urge limiting it. S. Rules Comm., Hearing on S. Res. 355 (Dec. 19, 2017); S. Rules Comm., Hearing on S. Res. 355, (Apr. 25, 2018) (approving resolution); S. Rules Comm., Exec. Business Mtg. (Feb. 13, 2019) (approving S. Res. 50); Burgess Everett & Marianne Levine, McConnell Preps New Nuclear Option to Speed Trump Judges, Politico (Mar. 5, 2019), https://www.politico.com/story/2019/03/06/trump-mcconnell-judges-1205722; Carl Hulse, Ghost of Garland Lurks as GOP Brandishes Nuclear Option Again, N.Y. Times, Feb. 13, 2019, at A14, https://www.nytimes.com/2019/02/20/us/politics/senate-nuclear-option-trump.html. 

 [96]. See sources cited supra notes 55–62, 65–71.

 [97]. U.S. Senate, Exec. Calendar, Dec. 23, 2017; see id., Dec. 31, 2018 (31 awaited floor votes); Judicial Vacancy List for March 2019, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2019/03/vacancies  (last visited Mar. 11, 2019) (129 district openings); Judicial Emergency List for March 2019, U.S. Cts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2019/03
/emergencies(87); see supra notes 23–24, 68, 92, 97 and accompanying text.

 [98]. Lat (Part 2), supra note 73; Robert McFadden, John McCain Dies, N.Y. Times, Aug. 27, 2018, at A18; Oct. 24 Hearing, supra note 80 (Arizona & Washington resolution); see supra notes 33, 61, 72–78, 82–83. But see supra notes 62, 90; 164 Cong. Rec. S6,883 (daily ed. Oct. 11, 2018) (Ryan Nelson’s confirmation, so Idaho resembles Hawaii).

 [99]. Compare Michael Gerhardt & Michael Stein, The Politics of Early Justice, 100 Iowa L. Rev. 551 (2014), with Orrin Hatch, The Constitution as Playbook for Judicial Selection, 32 Harv. J.L. & Pub. Pol’y 1035 (2009).

 [100]. Hugh Hewitt, Supreme Court 30 Years War Is Over, Wash. Post (Oct. 22, 2018), https://www.washingtonpost.com/opinions/the-supreme-courts-30-years-war-is-finally-over/2018/10
/22/c443d566-d62d-11e8-aeb7-ddcad4a0a54e_story.html;  see supra note 12.

 [101]. The latest began with stalling claims at the end of Bush’s time. The GOP retaliated with huge delay in approving Obama’s nominees. Democrats then used the nuclear option. The GOP next slowed all nominees. See sources cited supra notes 11, 13, 53, 92.

 [102]. Wheeler, supra note 20; see also supra notes 66, 98.

 [103]. See supra notes 23–24, 92 and accompanying text.

 [104]. Hulse, supra note 74. For more, review the U.S. Court’s website and their archive of judicial vacancies.

 [105]. John Roberts, Year-End Report on the Federal Judiciary 7–8 (2010); Tobias, supra note 13, at 2253; Jennifer Bendery, Federal Judges Burned Out, Overworked, and Wondering Where Congress Is, Huffington Post (Sept. 30, 2015), https://www.huffingtonpost.com/entry/judge-federal-courts-vacancies_us_55d77721e4b0a40aa3aaf14b.

 [106]. Judicial Business of the U.S. Courts, Courts of Appeals – Median Times for Merits Terminations in 12 Months Ending Sept. 30, 2017, Tbl. B-4 (2017); Kimberly Robinson, Heavy Caseload Creates 9th Circuit’s Bad Rap, BloombergLaw (May 3, 2018), https://news.bloomberglaw.com/us-law-week/heavy-caseload-to-blame-for-ninth-circuits-bad-rap?context=article-related.

 [107]. Approval is easier at a presidency’s outset, but the duties always apply. See supra notes 30–32.

 [108]. Adam Liptak, Gorsuch Clinched Spot After Long Process, N.Y. Times, Feb. 7, 2017, at A15; see also supra note 54.

 [109]. He seated many circuit judges who may be too new, and too little hard data exist to posit definitive conclusions. Jasmine Lee, Trump Could Flip the Supreme Court. His Impact on the Lower Courts Is Less Clear, N.Y. Times (Sept. 4, 2018), https://www.nytimes.com/interactive/2018/09
/04/us/politics/trump-federal-judge-appointments.html.  But see Alison Frankel, Trump Appellate Judges Are Paving the Way to Challenge Precedent, Reuters (Oct. 3, 2018), https://www.reuters.com
/article/us-otc-courtingchange/trump-appellate-judges-are-paving-the-way-to-challenge-precedent-idUSKCN1MD2RD. See generally  People for the American Way, Confirmed Judges, Confirmed Fears (2019).

 [110]. David Cole, ‘So-Called Judges’ Trump Trump, Wash. Post (Feb. 10, 2017), https://www.washingtonpost.com/opinions/so-called-judges-trump-trump/2017/02/10/573fd1c8-ef42-11e6-b4ff-ac2cf509efe5_story.html.  But see Hawaii v. Trump, 438 S. Ct. 923 (2018). He might ignite unproductive circuit-splitting efforts. Transcript of Trump Press Confer., N.Y. Times (Feb 16, 2017), https://www.nytimes.com/2017/02/16/us/politics/donald-trump-press-conference-transcript.html; see Cadei, supra note 33; Bob Egelko, Trump May Reopen 9th Circuit Split Debates, S.F. Chron. (Feb. 18, 2017), https://www.sfgate.com/nation/article/Trump-attack-may-reopen-debate-on-splitting-Ninth-10943304.php. 

 [111]. Emergencies reflect conservative work and case load estimates and vacancy length; they show California needs priority. Emergencies, Judicial Emergency Definition, U.S. Cts https://www.uscourts.gov/judges-judgeships/judicial-vacancies/judicial-emergencies/judicial-emergency-definition  (last visited Feb. 18, 2019).

 [112]. Kim, supra note 75; see supra note 66 (finding that presidents and senators deem circuits critical). But see supra notes 80–84 (finding Judiciary Chair Grassley eroded blue slips’ protection regarding seven nominees by processing them without home state senators’ slips).

 [113]. See sources cited supra notes 61–62, 82-–3, 90-91 (two states); supra note 11 (Bush’s effective consultation).

 [114]. The California senators ranked and explained preferences. See supra note 68 and infra note 140.

 [115]. Examples are Thapar, his first confirmee, and Joan Larsen, another early circuit appointee. Elisha Savchak et al., Taking It to the Next Level: The Elevation of District Judges to the U.S. Courts of Appeals, 50 Am. J. Pol. Sci. 478 (2006); Tobias, supra note 13, at 2243–46; supra note 71 (Thapar); 163 Cong. Rec. S6,944 (daily ed. Nov. 1, 2017) (Larsen).

 [116]. This saves time used to restart selection, cultivates relationships with Democrats and rapidly fills California seats. See supra notes 32–53 (California senators favor Koh); Lat (Part 2), supra note 73 (affiliations); see also supra note 67 (nominating Collins and Lee to the Ninth Circuit and Rosen to the Central District); infra note 130 (discussing Obama nominees whom Trump renominated).

 [117]. Obama and Trump seated many with full records, expediting review. See, e.g., supra note 19 (Murguia); supra note 115 (Thapar).

 [118]. Obama and Trump appointed many. See, e.g., supra note 21 (Hurwitz); supra note 115 (Larsen).

 [119]. Obama and Trump confirmed many. See, e.g., supra note 21 (Watford); supra note 23 (Friedland); supra note 64 (Grasz); see supra note 75; Maura Dolan, They Dismissed Her as a Lightweight, L.A. Times (May 28, 2017), https://www.latimes.com/local/lanow/la-me-chief-justice-20170528-story.html. 

 [120]. Goldman et al., supra note 13, at 14–16; Tobias, supra note 13, at 2239; see also supra notes 56–59.

 [121]. See supra notes 63–64, 78 and accompanying text (rating 6 not qualified).

 [122]. This may occur, devouring resources, and suggests why picking and ranking a few is preferable to sending one.

 [123]. Certain nominees ignored some questions or omitted critical matters. See supra note 121 (Jeff Mateer & Brett Talley); Hearing, supra note 62 (Wendy Vitter); Hearing, supra note 82 (Bounds).

 [124]. Senators must insure that nominees possess (1) mainstream perspectives, (2) ample respect for Supreme Court precedent and legitimate federal or state conduct and (3) no prejudgments on relevant issues.

 [125]. Emily Cadei, Showdown Looms Over Trump’s Picks for 9th Circuit Court, Sacramento Bee (Jan. 31, 2019), https://www.sacbee.com/latest-news/article225349515.html; see also supra note 68.

 [126]. Cadei, supra note 126.

 [127]. Patrick Gregory, New Trump Appeals Nominee Kirkland Partner, Ex-Scalia Clerk, BloombergLaw (Jan. 31, 2019), https://news.bloomberglaw.com/us-law-week/new-trump-appeals-nominee-kirkland-partner-ex-scalia-clerk-3; Niels Lesniewski, Debate Over Ninth Circuit Seats Is Latest Battle in Trump-Senate Judicial Wars, Roll Call (Jan. 31, 2019), https://www.rollcall.com
/news/congress/debate-ninth-circuit-seats-latest-round-judical-wars.

 [128]. Restrepo’s hearing was typical. Some members posed mundane queries he easily fielded. Tobias, supra note 28, at 45–46.

 [129]. E.g., Tobias, supra note 13, at 2244–46; see supra notes 23, 50–52.

 [130]. Tobias, supra note 32, at 450 n.1. When senators concur on a single choice, Trump may want to defer, as they know more strong aspirants who best represent California and can slow review by keeping slips.

 [131]. The senators favor Koh. See supra note 33. I rely below on Tobias, supra note 32.

 [132]. The sixteen nominees had 2016 panel approval; nine have won confirmation. Carl Tobias, Recalibrating Judicial Renominations in the Trump Administration, 74 Wash. & Lee L. Rev. Online 9 (2017); see also supra notes 45–49. But see Jan. 22 & Jan. 30, 2018 Notices of Intent, supra note 68 (excluding five Obama district nominees whom Trump had renominated). The Chair should poll members; if some prefer another session, he should arrange that.

 [133]. The White House was apparently considering this possibility, as the President did not include any of the three October nominees in the January 22 package of fifty renominees, although the White House did include the three in the January 30 package of nominees. See supra notes 68, 78. But see supra note 67; Letter, supra note 78.

 [134]. Biographical Directory of Judges, U.S. Cts., http://www.uscourts.gov/JudgesAndJudgeships-/BiographicalDirectoryOf Judges.aspx (last visited Feb. 27, 2019); Tim Arango, Who Is Dolly Gee?, N.Y. Times (June 21, 2018), https://www.nytimes.com/2018/06/21/us/immigration-judge-executive-order-trump.html (deftly treating immigration cases).

 [135]. Directory, supra note 135; Cadei, supra note 33 (senators proposed him). McGahn assessed Bush District Judge James Otero and Judge Rogan. Lat (Part 2), supra note 73; Lat, supra note 76; Tillman, supra note 33.

 [136]. Each would increase diversity. Bob Egelko, Liu Confirmed to Supreme Court, S.F. Chron. (Aug. 31, 2011), https://www.sfchronicle.com/bayarea/article/Gov-Brown-s-senior-legal-adviser-wins-13485312.php; David Siders, Jerry Brown Names Law Professor to California Supreme Court, Sacramento Bee (July 22, 2014), https://www.sacbee.com/news/politics-government/capitol-alert/article2604510.html; see Maura Dolan, As Brown Ponders Supreme Court Vacancy, Earlier Appointee Defies Expectations, L.A. Times (June 1, 2018), https://www.latimes.com/local/lanow/la-me-ln-kruger-court-20180531-story.html.

 [137]. See generally Cadei, supra note 33; Dolan, supra note 120.

 [138]. It was Munger, Tolles & Olson where Judge Owens and nominee Lee also worked. Directory, supra note 135; see Eighteenth Wave, supra note 67; supra notes 21, 23 (approvals); Cadei, supra note 33 (senators’ choices).

 [139]. Lat (Part 2), supra note 73 (affiliations); see also supra note 67 (nominating Collins and Lee to the Ninth Circuit and Rosen to the Central District); supra note 68 (renominating Collins and Lee to the Ninth Circuit, Bumatay to the Southern District, and Rosen to the Central District and nominating Bress to the Ninth Circuit).

 [140]. The senators’ approach can facilitate disputes’ resolution and avoid restarting the process. See supra note 122.

 [141]. For more on this idea, see Carl Tobias, Fixing the Federal Judicial Selection Process, 65 Emory L. J. Online 2051 (2016); Michael Gerhardt, Judicial Selection as War, 36 U.C. Davis L. Rev. 667, 694 (2003). New York nominees suggest use of a similar regime or perhaps trades. Thirteenth Wave, supra note 71; Eighteenth Wave, supra note 67.

 [142]. Tobias, supra note 13, at 2260 n.126; see Letter, supra note 33 (suggesting trades); supra note 77.

 [143]. See supra note 142 (Bush appointees Guilford whom the senators proposed and Otero whom McGahn interviewed) They must only do this, if the situation is dire. Biden statement, supra note 7 (trades are controversial).

 [144]. See, e.g., supra notes 79–99, 124–27.

 

Filling the California Ninth Circuit Vacancies

Carl Tobias

At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Office labeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge Alex Kozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.

Limited clarity about whether more judges will leave active service over Trump’s presidency suggests that additional confirmations may be necessary; however, the selection process’s stunning politicization will compromise this initiative. For example, when the tribunal enjoined Trump’s controversial determinations which excluded immigrants from seven predominately Muslim nations, he excoriated multiple jurists of the circuit. Trump afforded numerous candidates, but merely three have received approval, partly because home state Democratic politicians retained “blue slips” when the White House minimally consulted. The vacancies—which exceed seventeen percent, and three California openings, which are ten—show the crucial need to fill more vacancies.

Read More »

Crushing Creativity: The Blurred Lines Case and Its Aftermath

Edwin F. McPherson

On March 10, 2015, the music world was stunned when a jury in Federal District Court in Los Angeles rendered a verdict in favor of the heirs of Marvin Gaye against Pharrell Williams and Robin Thicke, who, along with rapper Clifford Harris, Jr., professionally known as “T.I.,” wrote the 2013 mega-hit song entitled “Blurred Lines.” The eight-member jury unanimously found that Williams and Thicke had infringed the copyright to Marvin Gaye’s “Got To Give It Up.” On appeal, the Ninth Circuit Court of Appeals affirmed the verdict and recently rejected Williams and Thicke’s Petition for Rehearing en banc.

The case is significant for a number of reasons. In typical music copyright cases—at least successful ones—the two works share the same (or at least a similar) sequence of pitches, with the same (or at least similar) rhythms, set to the same chords. The Blurred Lines case was unique, in that the two works at issue did not have similar melodies; the two songs did not even share a single melodic phrase. In fact, the two works did not have a sequence of even two chords played in the same order, for the same duration. They had entirely different song structures (meaning how and where the verse, chorus, etc. are placed in the song) and did not share any lyrics whatsoever.

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Book Review: Law and Legitimacy in the Supreme Court by Richard H. Fallon, Jr.

André LeDuc

Richard Fallon has written another important book about American constitutional law. Indeed, it brings to mind Hilary Putnam’s definition of a classic: the smarter you get, the smarter it gets. Fallon presents a rich, thick description of our constitutional law and practice and an argument for how we may best continue and improve this practice. While intended to be accessible to a broad readership, Fallon’s arguments cut to the core of much current constitutional scholarship, even while urging us to move past many of these sterile debates. Most importantly, Fallon takes seriously his mission of speaking to the Court, as well as to the academy, and takes a real run at changing how the Justices decide cases and articulate their decisions. He accomplishes all of this in a startlingly concise book, running only 174 pages of text and 36 pages of notes and without even a subtitle.

Fallon sets out to explain the nature of constitutional law, the constitutional disagreements of cases, constitutional argument, and the nature of the legitimacy of Supreme Court decisions and, ultimately, the Court itself. That’s a tall order for a little book, but Fallon can make a claim to have accomplished his mission.

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Supreme Court Reform: Desirable—And Constitutionally Required

David Orentlicher

As decisions by—and appointments to—the Supreme Court have become increasingly divisive, many observers have renewed calls for reform. For example, we could replace lifetime tenure with non-renewable terms of eighteen years, such that one term ends every two years. That way, less would be at stake with each nomination, Justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.

Concerns about the Supreme Court are not new, but increasing political polarization and partisan maneuvering over the two most recent Court appointments have accentuated tensions. With the legitimacy of the Court at stake, reform to depoliticize the Court seems essential. And whichever reform is promoted, it is generally assumed that implementation would require a constitutional amendment, legislation, or a change in Senate rules.

But the conventional wisdom is wrong. There is a sound argument to be made that Supreme Court reform is constitutionally required.

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Profound Sophistication or Legal Sophistry?

Ediberto Roman, Katryna Santa Cruz, Melissa Gonzales & Dianet Torres

In the midst of growing debate and—according to widely publicized news accounts—growing evidence against President Donald Trump’s impeachment, esteemed former Harvard Law Professor and public intellectual, Alan Dershowitz, recently published The Case Against Impeaching Trump. In this brief, but passionate, defense of the President, Professor Dershowitz provides arguably the strongest legal argument against impeaching the Forty-Fifth President of the United States. Professor Dershowitz’s argument, while beautifully written, is largely a selectively applied textualist attempt to thwart the mounting evidence against President Trump and his administration.

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The Weintraub Principle: Attorney-Client Privilege and Government Entities

Jason Batts

Amidst the backdrop of a federal investigation into the actions of President Donald Trump, a previously unexplored legal question has emerged on a topic that forms the foundation of legal practice: Can a succeeding government official revoke a predecessor’s claim of the attorney-client privilege? Although the question is novel, its role within the government context is well established—having been asserted by Presidents Richard Nixon and Bill Clinton in their respective administrations. The context of current events, however, underscores the need to further define the operation of a privilege that is once again being relied upon by a president under investigation.

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Letting Congress Vote: Judicial Review of Arbitrary Legislative Inaction – Article by Michael J. Teter

From Volume 87, Number 6 (September 2014)
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Our constitutional jurisprudence is in large measure built around the concept of guarding against arbitrary governmental action. But in an age of increasing legislative dysfunction, a more pronounced threat may be arbitrary congressional inaction. Individual members of Congress block majorities from voting on key legislation, and a single senator may prevent votes on executive and judicial branch nominations through the use of holds and other tactics. This form of congressional inaction not only poses a threat to many framework principles such as legislative supremacy, democratic accountability, and separation of powers, but also embodies the very concerns over arbitrary government that form the basis of over two hundred years of judicial review. For these reasons, this Article advances a novel, and undoubtedly contentious argument: federal courts should review certain types of congressional inaction for arbitrariness. To overcome the skepticism likely to greet the proposal, the Article establishes the solid historical and analytic foundations for such review before undertaking the step of explaining how it might work in practice.

 

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End of the Dialogue? Political Polarization, the Supreme Court, and Congress – Article by Richard L. Hasen

From Volume 86, Number 2 (January 2013)
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This Article considers the likely effects of continued political polarization on the relative power of Congress and the Supreme Court. Polarization is already leading to an increase in the power of the Court against Congress, whether or not the Justices affirmatively seek that additional power. The governing model of congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation: Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations. The Court’s interpretive rules are premised upon this dialogic model, such as the rule that Supreme Court statutory interpretation precedents are subject to “super strong” stare decisis protection because Congress can always correct an errant court interpretation. Legislation scholars also write as though congressional overriding remains common.

In fact, in the last two decades the rate of congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of twelve overrides of Supreme Court cases in each two-year congressional term during the 1975-1990 period, to an average of 5.8 overrides for each term from 1991-2000, and to a mere 2.8 average number of overrides for each term from 2001-2012. Although some of the decline seems attributable to the lower volume of Supreme Court statutory interpretation decisions, the decline in overrides greatly outpaces this decline in cases. Moreover, the decline does not appear to be driven by a decline in the amount of overall legislation. Instead, partisanship seems to have strongly diminished the opportunities for bipartisan overrides of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.

In its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. Two recent examples are (1) the Military Commissions Act of 2006, in which Republicans overturned the Court’s statutory interpretation decision in Hamdan v. Rumsfeld on the habeas corpus rights of enemy combatants, and (2) the Lilly Ledbetter Fair Pay Act of 2009, in which Democrats overturned the Court’s statutory interpretation decision in Ledbetter v. Goodyear Tire & Rubber Co. on how to measure the statute of limitations period in certain employment discrimination lawsuits. In a highly polarized atmosphere and with Senate rules usually requiring sixty votes to change the status quo, the Court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation.

 

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