Kozinski Strikes Back

The Recorder
http://www.callaw.com
By Alex Kozinski
September 23, 2005

Last week in this space, Cyrus Sanai took up what was headlined as the "Taking the Kozinski Challenge" by purporting to show that the Ninth Circuit routinely ignores circuit and Supreme Court precedent in its published and unpublished opinions. According to Mr. Sanai, Ninth Circuit panels "silently dustbinned" inconvenient opinions, paid "lip service" to Supreme Court case law, vaulted "somersaults" in creating three lines of authority "none of which agree with each other," and adopted a rule that has "the 'absolute simplicity' of Joseph Heller's 'Catch-22.'"

Were this criticism justified, it would be an embarrassing illustration of judicial lawlessness. Fortunately, it isn't.

For reasons of his own, Mr. Sanai chose as the centerpiece of his article an arcane area of federal jurisdiction known as the Rooker-Feldman doctrine. This doctrine holds that district courts may not entertain lawsuits challenging the validity of state court judgments. Were it otherwise, district courts would effectively become appellate tribunals for state court decisions -- a role reserved to the U.S. Supreme Court.

This much is clear. The closer question is what happens where the state courts conclusively resolve a federal issue in an interlocutory order. May the losing party challenge that order by bringing a federal action, or must it await review by writ of certiorari after final judgment? According to Mr. Sanai, we held in H.C. ex rel. Gordon v. Koppel, 203 F.3d 610 (9th Cir. 2000), that "Rooker-Feldman did not apply to ongoing state proceedings."

Not so. H.C. arose out of a state court order transferring temporary custody from mother to father. The mother then brought a federal lawsuit seeking to enjoin the state judge from enforcing his order. The district court dismissed on Rooker-Feldman grounds and the mother appealed.

Our opinion considered both Rooker-Feldman and Younger abstention, and affirmed on the basis of Younger. As to Rooker-Feldman, the opinion did not hold (as Mr. Sanai imagines) that the doctrine never applies to orders entered in the course of ongoing state litigation. H.C. merely found that, because temporary custody could change during the course of the litigation, "there is no final state judgment or order to which the Rooker-Feldman doctrine might relate and we need not reach the question of the doctrine's applicability to this action." Id. at 613 (emphasis added). H.C. expressly left open whether Rooker-Feldman applies to an interlocutory order that finally resolves the federal issue: "Nor are we asked to review a final state judgment of an order of an interlocutory nature." Id.

Doe & Associates Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001), reached this question. At issue in Napolitano was a grand jury subpoena seeking client records from a law firm. The firm unsuccessfully petitioned the state court to quash the subpoena, then brought a federal lawsuit seeking to enjoin its enforcement. The district court eventually dismissed on Rooker-Feldman grounds.

Napolitano thus confronted the question left open in H.C.: Does Rooker-Feldman bar a federal lawsuit challenging a state-court order that conclusively resolves an issue, even though the litigation continues as to other issues? Napolitano held that such a federal lawsuit is barred by Rooker-Feldman. One might disagree, as Mr. Sanai clearly does, but his claim that Napolitano "dustbinned" H.C. is unsupported.

Mr. Sanai next claims that Napolitano was overruled by Exxon Mobil Corp. v. Saudi Basic Industries Corp., 125 S. Ct. 1517 (2005), yet we stubbornly refused to acknowledge this in Mothershed v. Justices of the Supreme Court, 410 F.3d 602 (9th Cir. 2005). But Exxon Mobil did not address the issue resolved by Napolitano -- whether Rooker-Feldman applies to interlocutory but final state court orders. The question in Exxon Mobil was whether Rooker-Feldman bars federal lawsuits brought before the state courts have adjudicated the federal question.

Mothershed did not rely on Napolitano and so had no reason to decide whether Napolitano was affected by Exxon Mobil. Rather, Mothershed found Exxon Mobil inapplicable because the state courts in Mothershed had conclusively resolved the federal issues before the federal lawsuit was brought. Is this the only plausible reading of Exxon Mobil? Perhaps not -- though I believe it's a fair reading. Certainly, however, Mr. Sanai's claim that Mothershed paid mere "lip service" to Exxon Mobil is seriously overstated. All that can fairly be said about Mothershed is that it selected one permissible interpretation of a Supreme Court opinion that was not directly on point.

Mr. Sanai's claim that our Rooker-Feldman jurisprudence is in hopeless disarray is especially off the mark because this is an area where we have been vigilant in maintaining consistency. This is due in no small part to the fact that our colleague, Judge William Fletcher, is not merely one of the great minds of the federal judiciary, but a federal courts professor and a recognized authority on Rooker-Feldman. Judge Fletcher can be a bit of a nudge in prodding us to interpret Rooker-Feldman correctly, and so three years before the Supreme Court decided Exxon Mobil, our court took en banc Ahmed v. Washington, 276 F.3d 464 (9th Cir. 2001), where a panel had committed the very error the Supreme Court eventually corrected in Exxon Mobil. Though the parties settled, rendering the appeal moot, the en banc panel vacated the incorrect panel opinion, keeping our case law out of harm's way when the Supreme Court unanimously reversed other circuits in Exxon Mobil.

*****
Despite his colorful language, Mr. Sanai's article raises no legitimate question about whether the Ninth Circuit has been derelict in following circuit or Supreme Court precedent. But the article does raise serious issues of a different sort. Mr. Sanai's article urges us to "grant en banc rehearing of the next decision, published or unpublished, which asks the court to resolve the split among H.C., Napolitano and Mothershed." A petition for en banc rehearing raising this very issue crossed my desk just as Mr. Sanai's article appeared in print. The name of the case? Sanai v. Sanai. A mere coincidence of names? Not hardly. The petition, signed by Mr. Sanai, cites the same cases and makes the same arguments as his article -- including the reference to "Catch-22."

Mr. Sanai's byline modestly lists him as "an attorney with Buchalter Nemer in Los Angeles." The firm's Web site identifies him as "a Senior Counsel and English solicitor ... [whose] practice focuses on project finance, corporate finance and business transactions, with a particular expertise in international finance transactions." The careful reader would therefore have no cause to doubt that Mr. Sanai is a disinterested observer of this court's Rooker-Feldman jurisprudence. Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family's state-court dispute, an effort referred to by a highly respected district judge as "an indescribable abuse of the legal process, ... the most abusive and obstructive litigation tactics this court has ever encountered. ..." Nor would the reader -- unless he happened to enter Mr. Sanai's name in the Westlaw CTA9-ALL database -- realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case (read the PDF); been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as "frivolous" and "an improper dilatory tactic" by the district court. A detached observer, Mr. Sanai is not.

By failing to disclose his long-standing, active and abiding interest in the legal issue he discusses in his article, Mr. Sanai has done the reading public a disservice, cloaking his analysis with a varnish of objectivity. Worse, by publishing the article while he had a case raising this precise issue, Mr. Sanai used The Recorder to call unfair attention to his petition for rehearing, to the detriment of opposing parties who limited their advocacy to the briefs. And, by gratuitously drawing my name repeatedly into the controversy, he has also managed to disqualify me from participation in his case, skewing the en banc voting process.

Whether our court is diligent in applying circuit law and faithful to Supreme Court precedent are issues that deserve public attention. Contrary to Mr. Sanai's bold assertion, I have never claimed that intra-circuit conflicts never arise, and my colleagues and I welcome legitimate efforts to tell us when our circuit law needs mending. It is important, however, to draw a clear line between case advocacy and objective public debate. This Mr. Sanai has neglected to do.

Alex Kozinski is a judge on the Ninth Circuit U.S. Court of Appeals.

Taking the Kozinski Challenge

The Recorder
http://www.callaw.com
By Cyrus Sanai
September 16, 2005

The fiercest battle within the federal appellate courts these days is not over abortion or gay marriage, but the arcane question of whether an attorney may cite the unpublished case law of an appellate court as the binding law of the circuit. For the past three years the federal courts have been mulling proposed Federal Rule of Appellate Procedure 32.1, which would allow citation of unpublished cases as binding case law. On Sept. 20, the federal Judicial Conference will be voting on FRAP 32.1; if approved, it will then be submitted to the Supreme Court.

Appellate attorneys and scholars such as Howard Bashman and Thomas Boyle have criticized the federal courts, particularly the Ninth Circuit, for creating a class of decisions which do not bind the court in any way, providing a wide field for an appellate court to decide cases contrary to established precedent without fear that the decision will come back to haunt it. Many judges, particularly the Ninth Circuit's point man in this battle, Judge Alex Kozinski, contend that this fear is imaginary. Recent developments in an arcane offshoot of civil rights law called the Rooker-Feldman doctrine and in extradition law suggest that the critics may be right.

Lawyers who practice mostly in state court may wonder what the fuss is about, since California, like about half the states, has the same non-citation rule, dividing cases into citable published cases and non-citable unpublished cases. However, the detail and quality of unpublished and published California appellate opinions are the same, and attorneys successfully petition the California appellate courts to change the status of an opinion from unpublished to published, or vice versa, every month.

This never happens in the Ninth Circuit — unpublished decisions don't explain why a three-judge panel picked one case to follow versus another. In testimony before Congress, Judge Kozinski argued that because Ninth Circuit rules require its judges to follow the precedent laid down by the first panel to decide a particular legal question, there is no issue. Allowing the more laconic unpublished decisions to be used as binding precedent will just confuse matters.

"Critics of the Ninth Circuit might observe that it is not surprising that its judges refuse to be bound by that court's unpublished opinions, because Ninth Circuit judges so often flout the rule that the court's own published opinions serve as binding precedent." writes Bashman, the appellate specialist whose "How Appealing" Web site frequently broadcasts his view on this issue. Responding to this argument, Kozinski has demanded that he be shown one situation — just one — where the Ninth Circuit is playing fast and loose with its own precedents. The fight thus boils down to a perception by many attorneys and appellate specialists that the Ninth Circuit is frequently not following its own precedents. The court's handling of the Rooker-Feldman issue shows that the Ninth Circuit's adherence to its precedent is rather less strict than Judge Kozinski has represented.

The Supreme Court has repeatedly held that one can sue a state court judge or administrative agency to enjoin unconstitutional proceedings and orders under 42 U.S.C §1983, the same civil rights law used to sue the police for unlawful arrests and excessive force, provided you can get around a rule called "Younger abstention." One way around Younger abstention is to show "extraordinary circumstances," such as the state tribunal having a bias or conflict of interest. To prevent plaintiffs from trying to undo every courtroom loss by finding conflicts of interest in hindsight, the Supreme Court developed the Rooker-Feldman doctrine, stating that one could not use federal court to undo a state court judgment after litigation was over, no exceptions permitted.

Beginning in the mid-'80s, appellate courts in the Second, Third and Fifth Circuits began applying Rooker-Feldman to ongoing state proceedings as well as concluded cases, shutting the doors to collateral attacks completely. In 2000, two Ninth Circuit liberals, Judges Sidney Thomas and Kim Wardlaw, rejected this trend in H.C. v. Koppel, 203 F.3d 610, holding that Rooker-Feldman did not apply to ongoing state proceedings. H.C. is no secret; anyone checking the Ninth Circuit's position on Rooker-Feldman in the current Moore's Federal Practice will see the case cited for the proposition "that Rooker-Feldman does not bar district-court review of interlocutory state-court orders."

In 2001 a different, more conservative panel of Ninth Circuit judges ignored the decision in H.C. and decided in Doe Law Offices v. Napolitano, 252 F.3d 1026, that Rooker-Feldman in fact prohibited a plaintiff from complaining about anything being done in state court, ever. The inconvenient H.C. decision was silently dustbinned, and over the last four years the Ninth Circuit issued a score of unpublished decisions which ignored H.C. and instead followed Napolitano, precisely what Judge Kozinski claims never happens in the Ninth Circuit.

In March of this year the Supreme Court intervened in Exxon Mobil v. Saudi Basic Industries, overruling the Third Circuit to hold, once again, that only final judgments after proceedings have ended are covered by Rooker-Feldman. At that point, one would think Napolitano would be history, and that H.C. would be back in the good graces of the Ninth Circuit. Not so.

Barely four months later, after giving lip service to Exxon Mobil, a third panel of the Ninth Circuit ruled in Mothershed v. Justices of the Supreme Court, 410 F.3d 602, that ongoing proceedings magically become final if an appellate court rules on a single federal issue while the proceedings are ongoing, or, as happened in Mothershed, refuses to rule on a single federal issue. Mothershed has the "absolute simplicity" of Joseph Heller's "Catch-22," since under a long-standing Ninth Circuit case, Flangas v. State Bar, 655 F.2d 946, one is generally required to run a claim of bias or conflict of interest with the state appellate courts before arguing "extraordinary circumstances" in federal court to get around Younger. The practical result is that no matter what you do, federal court is now generally barred.

Moreover, the Ninth Circuit continues to cite Napolitano in its unpublished cases as if Exxon Mobil had never been issued. The result is that the Ninth Circuit now has three precedents on its books concerning Rooker-Feldman, none of which agree with each other. The Ninth Circuit's somersaults concerning Rooker-Feldman certainly give ammunition to skeptics of the Ninth Circuit's adherence to its own precedents, let alone the rulings of the Supreme Court.

The Ninth Circuit's en banc procedure is designed to rectify splits within the circuit; on a majority vote of the active judges, 11 judges are randomly selected and rehear the case anew in San Francisco, with authority power to pick one position or another. As far as Rooker-Feldman goes, the Ninth Circuit should grant en banc rehearing of the next decision, published or unpublished, which asks the court to resolve the split among H.C., Napolitano, and Mothershed. However, this is more easily said than done. The process is so cumbersome that the Ninth Circuit rejects half the requests made by its own judges to rehear a case en banc, and very rarely grants en banc review of unpublished cases.

So what should be done to correct this problem? In practical terms, the process needs to be less cumbersome. First, instead of requiring 11 judges to travel to San Francisco, the court should employ videoconferencing to make the en banc rehearing process less intimidating.

Second, the Ninth Circuit should allow the public to address letters to a panel requesting "depublication" of an opinion, as is the practice in California, which would allow the court to rapidly obtain the input of specialist attorneys who would spot a problem or inconsistency.

Third, the Ninth Circuit should abandon its custom of almost never taking unpublished cases en banc. Splits which do develop would be corrected much earlier if all litigants had an equal shot at correcting an inconsistency.

Fourth, Judge Kozinski and the rest of the Ninth Circuit opposing citation to unpublished opinions should concede that the proponents of Rule 32.1 are voicing valid concerns about the dedication of the Ninth Circuit to consistently following the same rules and analysis every time. As an extraordinary en banc case issued this March makes clear, Judge Kozinski and the Rule 32.1 proponents are really on the same side.

In the extradition case of Barapind v. Enomoto, 400 F.3d 740, six judges, including Kozinski, found it necessary to remind the other five that by "instructing three-judge panels and district courts about how to determine what law is binding on them," the court's rule of precedent "constitutes authoritative circuit law." The five-judge dissent argued that "like obscenity, it doesn't seem fruitful to try to pin down" precise definitions of a precedental holding, so the Ninth Circuit judges should be allowed discretion to decide which rules announced in a prior decision are binding and which aren't. If a particular panel sees things "differently from the active judges on this court, the remedy is a rehearing en banc which vacates the panel opinion and affords the court as a whole the opportunity to validate a prior statement or to void it."

In the world advocated by the Barapind dissenters, unpublished decisions, which are too short to parse the precedental rules from mere dicta, would become a complete free for all. The en banc rehearing process, which historically ignores unpublished cases, would be powerless to stop three-judge panels from issuing unpublished decisions that decided a case however the panel wanted it to come out, no matter what the Ninth Circuit precedent or even the Supreme Court said on the question.

Judge Kozinski and the forces in favor of citation of unpublished decisions want the same thing: judicial opinions that consistently apply the same rules from one case to the next. If the position of the Ninth Circuit and Judge Kozinski deserves to prevail, the Ninth Circuit will have to show that it reviews unpublished decisions which present conflict between Ninth Circuit cases as carefully as published decisions, and do so more often. Granting en banc review of the next unpublished decision which raises the three-way Rooker-Feldman conflict would be a good start.

Cyrus Sanai is an attorney with Buchalter Nemer in Los Angeles.

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September 15, 2005

TWO SCHOLARS VIEW THE ROBERTS HEARINGS

The Daily Journal asked two leading constitutional scholars and veteran court watchers to offer their insights each day during the hearings on John Roberts' nomination as chief justice of the U.S. Supreme Court. Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University. Douglas W. Kmiec is professor of constitutional law and Caruso Family Chair in constitutional law at Pepperdine University School of Law.

Memos, Briefs Give Democrats Reason to Oppose Nomination

By Erwin Chemerinsky
After listening to two days of John Roberts refusing to answer questions about his views on crucial issues, and after weeks of reading countless briefs and memos written by John Roberts, I believe that Senate Democrats should oppose John Roberts for the Supreme Court.

Nothing Roberts has said during the hearings denies what is clear from his writings: Roberts, if confirmed, is very likely to be a vote to change the law dramatically in key areas such as privacy rights, separation of church and state and racial justice.

The parallels to the fight over Robert Bork in 1987 are striking. Bork was nominated to replace Lewis Powell, who had been the swing vote on the court on key issues such as abortion, religion and affirmative action.

The Senate rejected Bork by the largest margin in American history because he believed that there was no constitutional protection for privacy and no protection under equal protection against gender discrimination. Roberts, in memos and briefs, has expressed exactly these views.

Everything that is known about Roberts suggests that he, like Bork, would join with the most conservative justices to change the law in a conservative direction. As deputy solicitor general of the United States, Roberts co-wrote briefs expressly urging the court to overrule Roe v. Wade. As an attorney in the Justice Department, Roberts drafted an article arguing that there is no constitutional protection for privacy.

During two days of questioning, Roberts has not pointed to anything in his record that suggests that he will not vote to overrule Roe. He has refused even to discuss his views on Roe.

Similarly, Roberts co-wrote briefs urging the Supreme Court to adopt the radical view that the Establishment Clause of the First Amendment is violated only if the government coerces religious participation.

Under this view, government aid could be used for religious indoctrination in parochial schools, sectarian prayer would be allowed in public schools so long as it was "voluntary" and there would be no limits on religious symbols on government property.

Again, not once in the confirmation hearings did Roberts point to anything to suggest that he will not be the fifth vote to overrule long-standing precedents and end any semblance of a wall separating church and state.

Roberts' judicial opinions are enormously troubling, and he has offered no reason to hope that he would be different on the Supreme Court. He recently joined a decision adopting the Bush administration's position that the protections of human rights found in the Geneva Conventions are not enforceable in American courts and that detainees designated as "enemy combatants" may be tried for war crimes before military commissions lacking basic procedural safeguards.

In addition, disagreeing with the other judges on a three-judge panel, Roberts adopted the Bush administration's position that a presidential order validly eliminated lawsuits against Iraqi officials brought by American POWs for torture they suffered during the first Gulf War.

The Democrats need to make clear that they also oppose Roberts because he has refused to answer questions about virtually every area of constitutional law, from the Second Amendment to Bush v. Gore to protection of sexual privacy to abortion rights. Roberts' repeated reply during the hearings has been that it would compromise his impartiality if he told his views.

But this is just wrong. We all know Antonin Scalia's and John Paul Stevens' views on abortion, but no one suggests that they must recuse themselves for bias.

The fact that a justice has views does not undermine impartiality because, of course, they all have thoughts and positions. Pretending that the judge is a blank slate doesn't make the judge impartial. As a litigant, I'd much rather know the judges' views than pretend that they don't exist.

Roberts said that his briefs don't necessarily reflect his views because he was serving a client and that his memos from 25 years ago should not be taken as his views today. But he won't answer questions about his current views. Democrats need to say that they will not confirm Roberts based on faith that he won't be the fifth vote to overrule Roe or end affirmative action or allow dramatically more government aid to religion.

In virtually every area, all that is known of Roberts shows that he is not a moderate conservative in the mold of Sandra Day O'Connor but that he is likely to move the law far to the right in the years ahead. Roberts has impeccable academic and professional qualifications. But so did Robert Bork. An excellent résumé is not enough for the Supreme Court.

Nothing in two days of hearings offers any reason to believe that Roberts' briefs and memos are not an accurate reflection of his views. They show an individual who will threaten basic rights and liberties if confirmed and who should not be on the U.S. Supreme Court.


Eloquence, Erudition of Nominee Make Listening to Him a Pleasure

By Douglas W. Kmiec
Contrary to my suggestion in this space Wednesday that, in light of the overwhelming quality and suitability of Judge John G. Roberts Jr. for chief justice, the Judiciary Committee should simply vote him to the floor forthwith for unanimous approval, the hearings moved into Day 3.

Of course, I don't mind in the least.

I could listen to the eloquence and erudition of this fella indefinitely. And I suppose it's the indefinitely part - lifetime tenure - that prompted Democrats to insist on keeping going for a record-setting duration well into the night, then to ask for yet another round of questioning, even as the Republicans (and most of the public gallery) had gone to lunch, dinner, and had a snack.

The apt question remains: Insofar as Roberts has manifested in his life's work, as well as in this marathon hearing performance, an abiding commitment to the rule of law and the role of judge as impartial decision maker, exactly who is intending to vote against the nominee on any ground other than rank partisanship?

Did we learn anything new?

Well, yes in the sense of detail on questions asked and answered. Roberts is unequivocally committed to racial equality as embodied by the principles of Brown v. Board of Education. After more intense questions from Sen. Edward M. Kennedy, D-Mass., Roberts also opined that he did not know of any reason to view the "totality of the circumstances" test that Congress has incorporated into the Voting Rights Act as "constitutionally suspect."

Because voting rights cases remain plentiful, however, the judge properly declined to elaborate. Nevertheless, his answer revealed admirable deference to democratic choice and underscored Roberts commitment to those famous words carved in stone above the Supreme Court entrance way: "equal justice under law."

If Kennedy is yet to be wholly satisfied, it is because Roberts so fully honors both equality and law that he is not prepared to sacrifice legal principle for even a judicially imposed shortcut to a worthy moral aspiration, be it perfect equality of result or the successful navigation of the complex issues of pain, freedom and the sanctity of human life that surround the issue of assisted suicide.

Throughout the day, Roberts consistently observed ethical lines of response. He steadfastly avoided commenting on the merits of past cases, whether invited to do so by obvious Senate committee allies or the more skeptical. Democrats and Republicans alike expressed astonishment at the court's recent interpretation of "public use" to mean its opposite. Both sides urged Roberts to join in their denunciation. He respectfully declined.

He first carefully stated the holding in the Kelo v. New London decision so that senators speaking more sweepingly would see that however much the opinion deviates from constitutional text, it was factually limited to the context of an economic development plan.

And knowing that this is a matter very likely to return to the court - Exhibit A for a precedent so widely and promptly denounced that it is unlikely to invite scarcely any stare decisis reliance - Roberts said nothing further other than to implicitly commend the legislative attention the decision has received.

Day 3 did suggest to a more sensitive conservative ear that Roberts might well be more deferential to federal power than President Bush's "favorite justices": Antonin Scalia and Clarence Thomas. Roberts suggested that the Rehnquist court's landmark efforts to limit the interstate commerce power to, well, interstate commerce, were easily addressed by Congress through the addition of a jurisdictional element to statutes that presumably would show some commercial impact.

In this, Roberts distanced himself a bit from Justice Sandra Day O'Connor, who had so strongly dissented from the court's refusal in Gonzales v. Raich to recognize that the provision of noncommercial, homegrown medicinal marijuana to a woman with a brain tumor was an issue better addressed by the people of California than Congress.

With this topic, as with all others, however, Roberts did not prejudge, and one suspects that the federal-state debate that has been with us since the first "Great Chief Justice," John Marshall, will continue before another one - that is, assuming there isn't yet another round of committee questions.

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September 15, 2005

REASSURANCE RELIEVES SENATORS
Roberts Says He Won't Support Usurping Congressional Authority

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - John G. Roberts Jr. has not revealed much about how he will act on the Supreme Court if confirmed, but he did give assurances to some concerned senators Wednesday that he would not work to challenge Congress' authority.

His comments came during an intensive day of questioning during which the inevitability of confirmation went unchallenged, although several left-wing Democrats likely will vote against him.

Roberts' willingness to discuss the court's relationship with Congress at least appeased the committee chair, Sen. Arlen Specter, R-Pa., who has not stated which way he will vote.

Specter has spoken out in recent weeks about the court's decisions in U.S. v. Lopez in 1995, which overturned a law banning guns in school zones, and U.S. v. Morrison in 2000, which declared unconstitutional parts of the Violence Against Women Act.

Both cases stated that Congress did not have the authority to adopt the laws under the Commerce Clause.

Roberts told Specter he would not try to replace Congress' "methods of reasoning" with his own.

"I don't think the court should be the taskmaster of Congress," the nominee said. "The Constitution is the court's taskmaster."

When pressed by Specter on Morrison, Roberts elaborated further, saying that he believes judges have "a limited role" in reviewing congressional findings.

"One of the warning flags ... is when you are in a position of re-evaluating legislative findings," Roberts said. "That does not look like a judicial function. I appreciate the difference between Congress and the courts with respect to findings."

Quizzed by Democrat Dianne Feinstein on why the court overruled Congress in Lopez, Roberts said the reason the act was overturned was that the law was not drafted correctly.

If the statute had stated that Congress' power to enforce the act was based on the interstate trade of guns, it probably would have been upheld, Roberts added.

"My point is that all the court was saying was missing was that lack of jurisdictional authority," he said.

Specter also asked Roberts for his views on two contrasting Supreme Court decisions relating to the Americans with Disabilities Act.

One, Alabama v. Garrett (2001), declared a section of the act unconstitutional, but the other, Tennessee v. Lane (2004), reached the opposite conclusion about another part of the act.

"Isn't it a clear example of judicial activism?" Specter asked, referring to both cases.

Roberts ducked the question, although he stressed that in Lane and another recent case, Nevada v. Hibbs (2003), the court had upheld Congress' authority.

He noted that Raich v. Ashcroft also upheld congressional power. In that case earlier this year, the court ruled that drug enforcement activities against a person who had not transported drugs interstate are constitutional under the Commerce Clause.

Asked by Sen. Tom Coburn, R-Okla., whether the reason for such conflicting decisions had to do with Congress' failure to state its intent clearly, Roberts conceded that "there are situations where sometimes Congress punts the issue to the courts."

Specter said after the morning session that he was relieved at what Roberts had said concerning the Commerce Clause.

"I don't think he is going to question our reasoning," he told reporters. "He is not going to be a taskmaster."

Another prickly issue Roberts had to contend with Wednesday was a series of questions relating to the Supreme Court's decision in Kelo v. New London, which came down in June.

In that case, the court held that governments can seize private property for urban renewal projects, causing an uproar around the country among property-rights advocates.

Roberts gave the same nuanced answer when questioned by both Sen. Sam Brownback, R-Kan., and Sen. Herbert H. Kohl, D-Wis.

He stressed that the Kelo decision referred only to urban revitalization projects, not just any government decision to seize land, but he also stated that state legislatures and Congress have a free rein to address the issue.

"That leaves the ball in the court of the Legislature," Roberts said. "Legislatures are protectors of people's rights, as well."

As Roberts second - and probably last - full day of questioning reached its conclusion, attention switched to how committee members will vote.

There is little doubt he will pass the committee, because all 10 Republicans on the 18 member committee likely will vote in his favor. Several have said publicly that they will do so.

The question now is how many Democrats on the committee will vote against confirmation, because that could determine the level of opposition in the Senate as a whole when the nomination goes to a floor vote.

When Roberts' nomination to the U.S. Court of Appeals for the District of Columbia Circuit passed the committee in 2003, three Democrats voted against him.

They were Sen. Edward M. Kennedy of Massachusetts, Sen. Charles E. Schumer of New York, and Sen. Richard J. Durbin of Illinois.

Sen. Orrin G. Hatch, R-Utah., said Wednesday afternoon that he has discussed the issue with all three and is "hopefully they will vote for [Roberts]."

But Hatch conceded that "maybe they won't."

Hatch said he has "no idea" whether any other Democrats are considering voting against the nominee.

Schumer, for one, repeatedly stated his frustration during the hearing at Roberts' failure, in his view, to answer questions in detail.

That was the reason he gave for voting against Roberts two years ago.

"He has answered a few questions," Schumer said during a recess in the hearing Wednesday afternoon. "But I don't agree with him when he says he has been more forthcoming than most nominees who have come before the committee."

He added that he hops Roberts will be more forthcoming during the third round of questioning, which is expected to end Thursday morning.

Sheldon Goldman, a political science professor at the University of Massachusetts, Amherst, said he expects Roberts to sail through the Senate, although he predicted that as many as 20 Democrats could vote against him.

Michael Gerhardt, a University of North Carolina law professor who served as a special consultant to the Clinton White House on the Supreme Court nomination of Stephen G. Breyer, said nothing so far is likely to change the outcome.

Gerhardt said that some senators have been able to score points against Roberts but that those points "have been lost in the shuffle."

For example, he said, Feinstein "made him look small" when she read unflattering comments Roberts made about women in memos he wrote as a Reagan lawyer in the 1980s.

"He didn't have much of a response to that," Gerhardt said.

Overall, however, Roberts has maintained his cool throughout, as Jeffrey Segal, a political science professor at Stony Brook University in New York, pointed out.

"I think he's done extremely well across the board," Segal said. "He's kept his calm but stood up for himself."

Daily Journal Staff Writer Brent Kendall contributed to this story.

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September 15, 2005

JUDGE REVIVES CHALLENGE TO SCHOOL PLEDGE
Constitutional Issue Likely Is Bound for U.S. Supreme Court

By Donna Domino
Daily Journal Staff Writer
SAN FRANCISCO - A Sacramento federal judge reignited the controversy over the Pledge of Allegiance Wednesday by ruling that a California law requiring school children to recite the pledge is unconstitutional, raising the likelihood the issue will return to the U.S. Supreme Court.

In his 30-page published opinion, U.S. District Judge Lawrence K. Karlton emphasized that he was bound by the 9th U.S. Circuit Court of Appeals' 2002 controversial decision that the words "under God" violate the Constitution's prohibition on the establishment of religion. Newdow v. Congress, 05-17 (Eastern District California).

Karlton began by observing that the issue has become a "cause celebre in the ongoing struggle as to the role of religion in the civil life of this nation." He then acknowledged that his conclusion "will satisfy no one involved in that debate."

The Supreme Court last year dismissed the original suit filed by Sacramento atheist Michael Newdow, saying Newdow lacked standing because he sued on behalf of his elementary school daughter but lacked custody of her.

By ruling on procedural grounds, the high court ducked the issue of whether the words "under God" in the pledge violate the First Amendment. Elk Grove Unified School District v. Newdow, 02-1624.

Newdow, an attorney and medical doctor, later filed an identical suit on behalf of three unnamed parents, also atheists, and their children.

In the new suit, the other parents complained the "government's embrace" of Christian precepts in the pledge made them feel like "political outsiders." They also contended that being known to the community as atheists "interferes with their ability to fit in and effect changes within the political climate of parent-teacher and school board meetings."

Karlton ruled Wednesday that while Newdow still lacks standing to sue, the other parents are free to pursue their litigation.

The judge said he would issue a restraining order preventing recitation of the pledge at the Elk Grove, Rio Linda and Elverta elementary school districts in Sacramento County where the plaintiffs' children attend.

The order will not extend beyond those districts unless it is affirmed by the 9th Circuit, in which case it would apply to all nine western states in the circuit.

Newdow expressed satisfaction with the ruling.

"It's been a long haul, but I'm pleased anytime the Constitution is upheld," he said. "That's clearly what Judge Karlton did."

Legislators, conservative groups and school officials decried the ruling.

In a written statement, State Sen. Sam Aanestad, R-Grass Valley, predicted the U.S. Supreme Court will overturn it.

"Here they go again," Aanestad said. "This is an example of yet another judge who is clearly out of step with mainstream America." He accused Karlton of "legislating from the bench and inserting his off-target political views, rather than enforcing and applying the law."

Jordan Lorence, an attorney for the conservative Arizona-based Alliance Defense Fund, voiced frustration.

"This shows how judicial activism persists, even in the face of strong opposition from the public and public officials," he said. "Rulings like this one should not be occurring. We thought the courts would have gotten the message last time."

State Superintendent of Public Instruction Jack O'Connell also strongly expressed disappointment.

"Reciting the Pledge of Allegiance at the start of the school day is one of our country's great traditions and is an appropriate expression of patriotism to our country for students to learn and practice," he said. "At the end of the day, I strongly believe that every student in California should be able to express their patriotism by pledging allegiance to the flag."

O'Connell said he has asked attorneys on his staff to work with state Attorney General Bill Lockyer to review "every legal avenue to protect students' rights to participate in the Pledge of Allegiance."

If appealed, the case will go back to the 9th Circuit, where a new three-judge panel will consider the ruling.

The decisions by Karlton and the 9th Circuit conflict with an August ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va., which upheld a Virginia law, similar to California's, requiring public schools to lead a daily recitation of the pledge.

A three-judge panel of the 4th Circuit ruled that the pledge is a patriotic exercise, not a religious affirmation similar to a prayer.

"Undoubtedly, the pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words 'under God' contain no religious significance," Judge Karen Williams wrote for the 4th Circuit. "The inclusion of those two words, however, does not alter the nature of the pledge as a patriotic activity."

Karlton, appointed to the Sacramento bench by President Carter in 1979, dismissed claims that federal legislation in 1954 adding the words "under God" was unconstitutional. But he said he was required to abide by the 9th Circuit's finding that forcing children to recite those words abridges their right to be free from state-imposed religion.

Karlton wrote that with the injunction, children will no longer be harmed because they will no longer have to recite the phrase at school.

Terence Cassidy, a lawyer representing the school districts, was unavailable for comment.

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September 14, 2005

TWO SCHOLARS VIEW THE HEARING

The Daily Journal asked two leading constitutional scholars and veteran court watchers to offer their insights each day during the hearings on John Roberts' nomination as chief justice of the U.S. Supreme Court. Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University. Douglas W. Kmiec is professor of constitutional law and Caruso Family Chair in constitutional law at Pepperdine University School of Law.

Testimony Misleads Judiciary Panel, People

By Erwin Chemerinsky
What is most distressing is John G. Roberts' disingenuous performance during the initial phases of the confirmation hearings and his refusal to provide senators a clear sense of his views on key constitutional issues.

On Monday, the confirmation hearings got off to a false start with Roberts analogizing his role to that of a baseball umpire. The analogy was meant to suggest that his views don't matter and that a justice has little discretion. A person with Roberts' intellect and education knows better than to use such an incorrect and misleading analogy.

The Supreme Court decides the rules and, in fact, even determines the lineup by deciding which cases to hear. Most important, the analogy obscures the tremendous discretion that justices have in determining the meaning of the Constitution. Deciding whether diversity is a compelling interest to justify affirmative action, whether there is a right to abortion, or whether a vouchers program violates the Establishment Clause is nothing like calling a runner safe or out.

A Supreme Court decision is not simply observing a fact; it is making a value choice about what the Constitution means.

Roberts' analogy should have made it more difficult for him to refuse to answer questions about his views concerning key issues on which he is likely to cast the deciding vote. A baseball umpire could answer questions about any of his or her likely decisions. But when it came to answering specific questions, no longer was Roberts the baseball umpire; he was the judge possessed of great discretion and a need to keep his views to himself.

Repeatedly on Tuesday, Roberts refused to state his views when asked specific questions. He constantly refused to discuss his views about Roe v. Wade or the scope of the right to privacy. When Sen. Joseph Biden, D-Del., asked Roberts about his views on gender discrimination, Roberts said that, unlike Ruth Bader Ginsburg, he had not written on the subject and thus would come to it with "an open mind."

This, too, though, was disingenuous. Roberts did write a draft article in the early 1980s while working for Attorney General William French Smith. Roberts argued strongly against stopping gender discrimination under the Equal Protection Clause. Roberts wrote, "Extension of heightened scrutiny [beyond race] to other 'insular and discrete' groups ... represents an unjustified intrusion into legislative affairs." This is important because Robert Bork was rejected in 1987, in part because of his opposition to extending heightened scrutiny under equal protection to gender discrimination.

Roberts' answer to Biden stretched credulity. He said that he did not oppose intermediate scrutiny for gender discrimination, only strict scrutiny. That is not what Roberts' memo said. Roberts clearly stated that he opposed any form of heightened scrutiny for gender. Craig v. Boren, 429 U.S. 190, in 1976, approved intermediate scrutiny for gender discrimination, and Roberts' memo, five years later, gave no indication of praise for that result; rather, he expressed criticism for all heightened scrutiny for gender discrimination.

As the questioning of Roberts continues, two concerns are likely to get even more attention.

First, will Democrats become increasingly frustrated with the inability to get clear answers from Roberts about any of the controversial areas? Roberts disavows briefs he signed by declaring that he was just taking the administration's position. He disavows memos he wrote as being from a long time ago. The Bush administration refuses to give copies of memos Roberts wrote in the solicitor general's office. Roberts refuses to answer questions about specific issues. I expect to hear Democrats expressing their frustration and saying that they cannot confirm with so little information.

Second, I expect Democrats also will focus on Roberts' overall record pointing in a consistent, very conservative direction.

The questions I most want to hear asked Wednesday are "Judge Roberts, is there anything in your record that suggests that you would not vote to overrule Roe v. Wade?"; "Judge Roberts, is there anything in your record that suggests that you would not vote to overrule Grutter v. Bollinger and vote to eliminate affirmative action?"; and "Judge Roberts, is there anything in your record that indicates that you would not vote to overrule Lemon v. Kurtzman and allow dramatically more government aid to religion?"

Roberts cannot credibly refuse to answer, and his failure to do so could be the fuel for substantial Democratic opposition.

Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University.

Adjourn Hearing--Approve Him Immediately

By Douglas Kmiec
Except for the sheer pleasure of listening (and learning) from John Roberts, my own inclination, were I a member of the Senate, would be to adjourn the hearings, recommend Roberts to the floor without qualification, then watch a legacy-setting unanimous approval of a U.S. Supreme Court chief justice in modern time unfold.

Sen. Lindsey Graham, R-S.C., asked the rhetorical question of the day when he wondered aloud - that, despite Roberts' obvious brilliance, his warm, open-minded and impartial demeanor, and most of all, his refreshingly consistent view of a judge as a restrained, "bottom-up" decider of cases and not a usurping policymaker - whether he would get any votes from the Democratic side at all. Graham, of course, fashioned the bipartisan moratorium to the problematic filibuster of appellate nominees, so his was both a poignant and important observation.

No one disputed that Ruth Bader Ginsburg and Stephen Breyer were both highly able and highly liberal; Ginsburg as an ACLU advocate was often way beyond settled law, and Breyer had been a Kennedy staffer. Yet, with their articulated commitments to decide cases on the law and the record of each case, they were appropriately confirmed 96-3 and 89-9, respectively.

On the merits, Roberts deserves 100-0, and were that politically unlikely tabulation somehow nevertheless to occur, it would be an act of profound Senate responsibility and good will that would signify a full-fledged return to respecting the constitutional design and, most especially, the separation of powers.

Don't misunderstand. Roberts could not possibly have satisfied everyone in the substance of his answers Tuesday. He didn't. First of all, a good number of questions could not be ethically answered.

Again, following the lead of Ginsburg, he noted that it is wrong to predict, forecast or promise particularly legal results. Roberts' answers therefore carefully and largely avoided expressing personal views on cases that might come before him or his personal view of the merit or demerit of past cases. Yet Roberts was entirely forthcoming in stating an encyclopedic grasp of constitutional and federal law.

On abortion, he conceded Roe v Wade, as subsequently modified by Planned Parenthood v. Casey, to be a precedent worthy of respect, then prudently declined to guarantee either its immunity from or certainly of reconsideration.

Roberts also refused to be blamed for Hurricane Katrina or national poverty and, likewise, politely but firmly resisted the caricature of his staff lawyering for the Reagan administration as being against civil rights or women.

Regrettably, some senators could not resist asking Roberts to make pledges about his Catholic faith. It was ugly when John F. Kennedy was asked this in 1960, and such a "religious test" is no prettier four decades later and is contrary to the spirit if not the letter of the Constitution.

Of course, nothing in the Catholic faith directs judges to disregard their oath of office, so it is easy to put to rest. Nevertheless, when California Sen. Dianne Feinstein asked him to affirm an absolute separation of church and state, Roberts thoughtfully paused.

Once again, Roberts simply and plainly reflected that such absolutism is not the text of the guarantee of religious freedom and did not even coincide with the court's most recent thinking allowing at least some public display of the Ten Commandments.

Overall, Roberts refrained from answers that would undermine the institutional independence of the judiciary or prejudge controversial controversy. This humility extended even to friendly efforts to liken him to Chief Justice William H. Rehnquist, whom Roberts obviously admired and learned from. He would be his own man, Roberts said. And at the end of a very long day, that is a very welcome prospect for the court and the nation.

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© 2005 The Daily Journal Corporation.
All rights reserved.

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September 14, 2005

ROBERTS STEPS PAST QUERIES ON ABORTION
Nominee Supports Precedent to Avoid 'Jolt' to Legal System

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - John G. Roberts Jr. tried to maintain a careful balance Tuesday, waxing lyrical about his respect for court precedent while declining to elaborate on his view of Roe v. Wade.

With the landmark 1973 abortion case at the back of everyone's mind, the nominee for chief justice reiterated on the second day of his confirmation hearing his belief in Supreme Court precedent, repeatedly referring to the importance of "settled expectations."

Although he declined to offer any insight into whether he believes in a right to abortion, Roberts told Sen. Arlen Specter, R-Pa., that he would respect the precedent established by Roe.

He also conceded that the subsequent Casey v. Planned Parenthood decision in 1992, which reaffirmed Roe, added another layer of precedent.

"That application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles," he said.

Roberts added that the issue of settled expectations "is an important consideration" when deciding whether to uphold a precedent.

Later, under questioning from Democrat Dianne Feinstein of California, Roberts described Casey as a "precedent on a precedent ... entitled to respect under the principles of stare decisis."

But when pressed by Feinstein, Roberts declined to say whether he believed the issue of a woman's right to choose would pass the settled-expectations test.

"In terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line, and that's where I've drawn the line," he said.

Earlier in the day, in response to Specter's questioning, Roberts spoke in detail about his attitude toward the overturning of court precedent.

He described such an act as a "jolt to the legal system" that should be undertaken only in extreme circumstances.

Roberts cited the 1954 school segregation case Brown v. Board of Education as an justifiable example of a such a decision.

Specter, the chair of the Senate Judiciary Committee, focused his questioning on the precedent as established, not so much by Roe, but by Casey.

He began by asking Roberts whether he agreed with the principal of stare decisis as articulated by Justice Felix Frankfurter and Justice Benjamin N. Cardozo.

"I would point out that the principle goes back even farther than Cardozo and Frankfurter," Roberts replied.

He noted that Alexander Hamilton had written in the Federalist Papers that, "to avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."

Specter pressed Roberts further by citing an opinion written by the nominee's mentor, Chief Justice William H. Rehnquist.

Although Rehnquist disagreed with the landmark Miranda v. Arizona decision from 1966, he nevertheless wrote an opinion upholding it in the 2000 case Dickerson v. U.S.

In that opinion, Specter noted, the chief justice wrote that Miranda warnings had become "so embedded in routine police practice to the point where the warnings have become a part of our national culture."

Specter asked whether an analogy could be drawn with Roe v. Wade based on the 33 years it has been settled law.

"I doubt that [Rehnquist's] views of the underlying correctness of Miranda had changed," Roberts replied. "But it was a different question in Dickerson. It wasn't whether Miranda was right; it was whether Miranda should be overruled at this stage."

Rehnquist's handling of the case was an expression of "the approach the court follows under principles of stare decisis," the nominee added.

Specter told reporters after the morning session that he was relatively content with the answers Roberts gave on Roe and Casey.

"I think he went about as far as he could go," Specter said.

Chapman University law professor John C. Eastman said Roberts' comments on precedent were unexceptional.

"I don't think anything is coming out of his mouth that isn't in the precedent on precedent," Eastman said.

He said Roberts' discussion of the relevant factors involved in revisiting precedent was in line with what the Supreme Court's views have been.

But Nancy Keenan, president of NARAL Pro-Choice America, said Roberts had not made it clear whether he believes the right to privacy, which he conceded is a constitutional right, includes a woman's right to choose.

"Furthermore, Roberts' comments on precedent and the role of stare decisis did not take into account the very real fact that there is more than one way to dismantle Roe," Keenan added.

She noted that the court could "render Roe v. Wade a shell of itself," without having to overturn the decision.

Specter's were by far the most searching questions Roberts faced from the Republican side Tuesday, but he had to use all his skills as an advocate to maneuver through a series of tough questions posed by Democrats.

Citing memos Roberts wrote when he was a young lawyer at the White House in the Reagan administration, Democrats asked him to clarify where he stood on such issues as women's rights and the Voting Rights Act.

Sen. Edward M. Kennedy of Massachusetts, a veteran of such hearings, took the lead, focusing on a memo Roberts wrote in 1982 in which he expressed reservations about some proposals included in legislation that eventually became the renewal of the Voting Rights Act, passed that same year.

Roberts replied by stating he was merely representing the position of the administration, a stance he took on all the questions relating to his memos from that period.

Sen. Joseph R. Biden Jr. of Delaware faced a similar response when he confronted Roberts over his views on women's rights, leading to an exchange in which the senator accused the nominee of filibustering in an attempt to waste time.

"Go ahead," Biden said to Roberts. "Go ahead continuing not to answer."

Sen. Patrick J. Leahy of Vermont, the ranking Democrat on the committee, took a different tack from his colleagues, choosing to question Roberts about his views on what kind of checks there should be on presidential power.

Perhaps in an attempt to pacify Leahy's fears that he would be too deferential to the executive branch over such matters as war powers and the right of the president to authorize torture of enemy combatants, Roberts highlighted the career of Justice Robert H. Jackson.

He was a forceful advocate for executive power as attorney general under President Roosevelt but changed his tune once he was appointed to the court in 1941, Roberts said.

Jackson wrote a concurring opinion in 1952 in Youngstown v. Sawyer, in which the court held that the power of the president to seize property is limited.

Roberts stressed that, once on the court, Jackson "took an entirely different view of a lot of issues."

Leahy responded by asking, to laughter from the audience, whether Roberts was "sending us a message" on how he would act as chief justice.

The nominee, true to form, managed to avoid answering that particular question.

A second round of questions is scheduled to begin this morning.