At White House, Irregular Order as Things Fall Apart

      Arizona's John McCain was praised from all sides when he returned to the Senate floor from his hospital bed on Tuesday [July 25] to plead for a return to "regular order" in the Republican-led drive to repeal and replace Obamacare. At the other end of Pennsylvania Avenue, however, it was irregular order as usual the next day when President Trump used a series of early morning tweets to announce that transgender individuals would no longer be allowed in military services.
      Trump's abrupt three-tweet fiat early Wednesday morning came with Defense Secretary Jim Mattis on vacation and the Pentagon and the service chiefs awaiting completion later this year of a study on how to implement the Obama administration's decision to lift the prior ban on transgender individuals in the military. Trump claimed to have consulted with "my Generals and military experts" before making the decision, but two news cycles later none of those supposedly consulted in advance had been identified.
      At the least, Mattis was not consulted but "informed" of the decision on Tuesday, according to the Wednesday briefing by newly White House press secretary Sarah Huckabee Sanders. The Joint Chiefs of Staff issued a memorandum to the services on Thursday clarifying that no presidential order had been received and nothing would change until and unless an order was received.
      The transgender ban, widely denounced and widely depicted as unlikely to survive the inevitable legal challenge, was one of two body blows the Trump administration delivered to the LGBT community on Wednesday. The Justice Department filed a friend-of-the-court brief the same day with the federal appeals court in New York City to argue against recognizing anti-LGBT discrimination to be illegal under the Civil Rights Act of 1965.
      The brief — signed by lawyers in Justice's civil division, not the civil rights division — comes in a case, Zarda v. Altitude Express, to be argued in late September before the full Second Circuit appeals court. The court's eventual decision will be a tie-splitter of sorts between conflicting decisions on the issue within the past year by the Seventh and the Eleventh Circuit courts.
      The brief puts the Justice Department at odds with the Equal Employment Opportunity Commission (EEOC), which has taken the position for several years that Title VII's prohibition against discrimination on the basis of sex necessarily precludes discrimination on the basis of sexual orientation or gender identity as well. Robert Loeb, a Washington lawyer who served in Justice's civil division for 20 years, noted that the civil division's lead role in the case signaled a "political decision" behind the position. "It shows that it's not being treated as a civil rights issue," he said.
      The news of the Justice Department brief went viral in the LGBT community and in legal circles generally, but it was buried in the day's news coverage by the continuing chaos in the White House. The transgender ban is only the latest of many examples of policymaking by tweet in Trumpland. Trump has been using 140-character tweets for the past two weeks to berate his attorney general, Jeff Sessions, and all but beg him to resign to spare the president the trouble of firing him.
      Trump's discontent with Sessions originates with the attorney general's ethically required decision to recuse himself from overseeing the investigation of any Trump campaign connections to Russian agents seeking to influence the  2016 election. But Trump added to the bill of particulars by describing Sessions as "weak" and pressing him to investigate and presumably prosecute his Democratic opponent Hillary Rodham Clinton and any of the "leakers" responsible for damaging disclosures from within the administration
      Leaks are also on the mind of the White House's new communications director, Anthony Scaramucci, who  was sucking up to his boss by publicly promising to crack down on supposed leakers working right there at 1600 Pennsylvania or next door in the old Executive Office Building. Scaramucci is sucking up to his boss by depicting leaks and leakers as the reason why Trump's legislative initiatives are mired in congressional quicksand. Scaramucci was promising to fire any leakers inside the White House and naming the on-his-way-out chief of staff Reince Preibus as one of those in his crosshairs.
      Even with chaos at the White House and in the Senate, Trump's supposed transgender ban still ranks near the top of the list of self-inflicted wounds. Trump's stated rationale was to avoid burdening the military with "tremendous medical costs and disruption." That rationale was actually contradicted by a study already completed by the respected, nonpartisan RAND Corporation.
     The impetus for the ban came not from the military but from Capitol Hill, where the House was tied up on an amendment to prohibit the military from paying for the medical costs of transitioning for transgender service members. The RAND study estimates the number of current transgender service members at 11,000 and says medical costs would be a pittance: $2 million to $8 million a year, less than the military spends on erectile dysfunction meds.
      Asked whether current transgender service members would be expelled, Sanders had no answer other than time will tell. That was also Trump's verbatim answer when asked whether Sessions would stay in office. On both of those issues, Trump was suffering defections during the week from emboldened Republicans on Capitol Hill. The disarray calls to mind the line from Yeats' famous poem: "Things fall apart."

Trump Leaving His Mark on Federal Courts

      The White House may be in total disarray and the Senate in legislative deadlock, but Donald Trump still has the wherewithal to find conservative ideologues to nominate for lifetime seats on federal courts and get them confirmed by subservient Senate Republicans.
      At the six-month mark of his presidency, Trump's supporters and apologists put the confirmation of Supreme Court Justice Neil Gorsuch at the top of a short list of significant accomplishments. Even though hard-fought and narrowly won, Gorsuch's confirmation shows the White House a path toward more victories to feed to the minority of Americans who constitute Trump's political base.
      Against that backdrop, it bears repeating that Trump is on a record pace of judicial nominations at this point in his popular-vote loss presidency, according to figures compiled by Ronald Klain, a veteran Democratic politico, for an op-ed in the Washington Post. Trump's 27 nominations for federal district court judgeships through mid-July are more than three times Obama's total for the comparable period and double the number for Reagan, Bush41, and Clinton combined, according to Klain's count.
      For the federal courts of appeals, Trump has named nine nominees; no president before Trump has named more than three whose nominations were processed in his first six months, according to Klain. Trump's opportunities are a gift from Senate Republicans, who did far more than block Merrick Garland's Supreme Court nomination last year. They also left a record 137 federal judicial vacancies for Trump to begin filling on his first day in office.
      Trump picked up a win last week when the Senate confirmed an anti-gay conservative lawyer and intemperate political blogger to the federal appeals court for the four-state circuit that includes my home state, Tennessee. John Bush won confirmation to the Sixth U.S. Circuit Court of Appeals by a strictly party-line vote of 51-47.
      On paper, Bush has the basic qualifications for a federal judgeship: a Harvard law degree, a clerkship with a federal appellate judge, and two decades as a commercial litigator with a well-regarded Louisville law firm, as the invaluable blog The Vetting Room detailed in its coverage. But the political rants that he posted for years under a pseudonym on a political blog created by his wife mark him as lacking the judicial temperament and sound judgment that are as important, if not more so, than academic and professional credentials.
      Two liberal groups, People for the American Way and Alliance for Justice, helped spearhead opposition to the nomination in advance of Bush's contentious Senate Judiciary Committee hearing last month. Gay rights groups, including the Human Rights Campaign, joined in urging his defeat based on, for example, a blog post mocking the State Department's revision of the passport application to accommodate same-sex marriages. The critics also cited a post that likened the Supreme Court's infamous pro-slavery decision in the Dred Scott case to the reproductive rights decision in Roe v. Wade.
      Bush got an unenthusiastic passing grade of "qualified" from the American Bar Association's Standing Committee on the Federal Judiciary, not the other, higher rating of "well qualified." In fact, Bush's qualifications pale in comparison to the typical nominee for a federal circuit court. More commonly, a circuit court nominee has a distinguished record as a law school professor, state or federal judge, or other government official. On the current Supreme Court, the eight justices who served on federal circuit courts all had qualifications like those before their nominations.
      In place of objective qualifications like those, Bush's record included political lawyering and, perhaps most important, two decades of helping to lead the Louisville chapter of the Federalist Society. The Federalist Society has been a career ladder for would-be federal judges under Republican administrations dating to its founding in the Reagan era.
      Under Trump, the relationship has been de facto formalized: Gorsuch was on the list of 20 names for the Supreme Court post that the group submitted at Trump's request during the presidential campaign. Trump marked the successful confirmation vote by meeting at the White House in pep rally-style with Federalist Society leaders.
      Bush's lawyering included work on Reagan's Iran-contra defense team. As commercial litigator, he worked on behalf of a tobacco company in an unsuccessful court get out of its obligations under the master settlement that tobacco companies negotiated with state attorneys general. On the other hand, he also represented the Louisville Area Chamber of Commerce in an amicus brief at the Supreme Court unsuccessfully urging the justices to uphold the school district's desegregation policies.
      In the final hour of debate on Bush's nomination, his fellow Kentuckian, Senate Majority Leader Mitch McConnell, urged senators to confirm "my friend John Bush." McConnell minimized the controversy over Bush's blog posts by noting similar blogging by previous Democratic judicial nominees. Minnesota Democrat Al Franken rejected the comparison by noting that Bush's posts included endorsement of the phony Obama "birtherism" controversy and links to alt-right and conspiracy-theory sites. The job, Franken noted, is "judge" and the job requires "judgment," which he said was lacking in Bush's blogging.
      Thirty years ago, six Republican senators crossed party lines to add to the margin of defeat for Robert Bork's nomination to the Supreme Court. That was then, this is now. Franken's plea fell on deaf ears on the Republican side of the aisle. With political independence in short supply among GOP senators, a president who openly disdains the rule of law is on a path to leaving a lasting, black mark on the federal judiciary.

Court's Un-Common Sense on Sex Offenders

      The Supreme Court hit a home run in First Amendment terms with its unanimous decision to strike down a North Carolina law that banned convicted sex offenders from accessing commercial social networking sites used by minors for personal profiles or the like. But the court's decision in Packingham v. North Carolina was more than a free-speech victory. The decision also injected some uncommon good sense into the  debate driven generally by irrational panic and flawed statistics over how the criminal justice system should deal with sex offenders.
      As a First Amendment case, the court had no difficulty whatsoever in ruling North Carolina's social media ban fatally overbroad. But Justice Anthony M. Kennedy's opinion for a five-justice majority charted a new path for the First Amendment by declaring social media to be the 21st century equivalent of the free speech-protected public square. Banning sex offenders from such sites as Facebook and Twitter prevented them from "the legitimate exercise of First Amendment rights," he wrote.
      The ban also made no sense as penology, Kennedy explained. "Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas," he wrote, "in particular if they seek to reform and to pursue lawful and rewarding lives."
      As with so many free-speech cases, the government's challenged policy was blatantly irrational in the specific case before the court. Lester Gerard Packingham Jr. —  known to friends and family as J.R. — was no sexual predator even when he pleaded guilty to indecent liberties with a 13-year-old back in 2002. And the Facebook post that landed him in legal trouble again in 2010, long after his probation had ended, was no sexual come-on but merely a playful celebration of having beaten a traffic ticket.
      North Carolina had been one of the first of the states back in 2008 to craft a law aimed at preventing the admittedly common use of social media for sexual abuse and victimization of minors. Within the span of a few years, most of the states had adopted disclosure as a preventive policy. Sexual offenders, registered with the state under laws on the books throughout the country, were required to disclose their Internet identifiers to authorities as a safeguard of sorts against improper behavior on the 'Net. Some of those laws were upheld in court, others struck down.
      The Tarheel State was one of two states to adopt a social media ban instead. Louisiana's law was struck down in 2012. The North Carolina law, known as section 202.5, made it a felony for a registered sex offender to access a commercial social media web site if he knew it allowed use by minors for personal profiles and two-way communication. Significantly, the ban applied to any use of the site, not specifically to posts aimed at or communications with minors. As Packingham's lawyer told the Supreme Court during oral arguments, he risked violating the law for doing nothing more than responding on Facebook to any of the posts discussing his case.
      Packingham was a 21-year-old college student when he pleaded guilty to the reduced sex offense count back in 2002. The facts of the case were kept off public records, but the judge evidently viewed the offense as minimal. He suspended Packingham's six- to eight-month prison sentence. "No one ever thought he was a pedophile," according to David Goldberg, the Stanford law clinic instructor who represented Packingham at the Supreme Court.
      Convicted in 2012 under section 202.5, Packingham again was given a suspended sentence. He had challenged the law as unconstitutional before trial in tandem with a second defendant, Christopher Johnson, charged under the law. Johnson told the court that he had been fired from an IT consulting job because it required access to social media. Goldberg said that Packingham has used his graphic design degree to help with his church's web site but that the social media ban has held him back in career terms.
      The sex offender policies adopted over the past two decades have to some extent been based on fake data. Law enforcement officials, lawmakers, and judges all the way up to the Supreme Court have accepted as scientific truth a false myth that sex offenders have a high degree of recidivism — that is, repeat offenders.
      The myth appears to be traced back to an article in a non-peer reviewed popular magazine, but has shown up in, among other places, Supreme Court opinions. The myth is so strong that Justice Sonia Sotomayor, no dupe for law enforcement, referred to it as fact during arguments in Packingham's case. Scientific studies reviewed in a Justice Department report in 2001 found relatively low rates of recidivism among sex offenders compared to other offenders. The studies indicated a range between 10 percent and 29 percent for child molesters with female victims and between 13 percent and 40 percent for child molesters with male victims.
      Tellingly, the North Carolina legislature approved section 202.5 unanimously with support from the then Democratic attorney general and the then Democratic governor. At the Supreme Court, none of the justices found the law constitutional and five of them rejected it as senseless public policy. Goldberg said that Packingham's immediate response when he heard the news of the decision was a single word: "Hallelujah." Amen.

Gorsuch 'More Conservative' Than Scalia in First Months

      Supreme Court Justice Neil M. Gorsuch celebrated the Fourth of July by joining the holiday parade in the small Boulder County community of Niwot. Gorsuch "worked the parade like a senator, not a sitting Supreme Court justice," according to a reporter for the left-leaning news site Rewire.
      As Colorado's second Supreme Court justice in history (after Byron R. White), Gorsuch was welcomed by most in the crowd as home boy made good, but dissent was heard. One spectator greeted Gorsuch by mocking his appointment to a seat that, by all historical practice, rightfully belonged to Merrick Garland. Martha McPherson's sign stated her opinion in all caps: "USURPER GORSUCH SUCH A SHAM."
      Back in Washington, Gorsuch was also drawing attention as court watchers and advocates and experts across the ideological spectrum assessed the first three months of a high court career that could last 30 years. Advocates on the left and the right appeared to agree on one point: Gorsuch could be on the way to being more conservative than his lionized predecessor, Antonin Scalia.
      The New York Times editorial board was still referring to Gorsuch's seat as "stolen" as conservatives chortled over the appointment. In an op-ed for The Wall Street Journal, the conservative legal academics John Yoo and Sai Prakash said that conservatives "hit the jackpot" with the Senate Republicans' gamble to block Garland's confirmation.
      Yoo, the Berkeley law professor who wrote the infamous torture memo while with the Bush Justice Department, and Prakash, a U-Va. law professor, described Gorsuch as a "robust originalist," more like Clarence Thomas than the self-described "fainthearted originalist" Scalia. They saw him as part of a conservative bloc with Thomas and Samuel A. Alito Jr. that would "expose" the "directionless middle" occupied by the others in the Republican-appointed majority, Chief Justice John G. Roberts Jr. and associate justice Anthony M. Kennedy.
      Gorsuch was confirmed to the life-tenured seat by a bitterly partisan 54-45 vote in the Senate, the fourth closest margin ever for a confirmed justice. The narrow vote caused Gorsuch no hesitation at all in staking out distinctively conservative positions on the bench or in his votes and opinions.
      Gorsuch "hit the ground running," remarked Jonathan Adler, a conservative professor at Case Western Reserve Law School in Cleveland. Michael Gerhardt, a liberal law professor at the University of North Carolina in Chapel Hill, agreed. "He's probably off the mark faster than people might have anticipated," Gerhardt said.
      In fact, Gorsuch was unusually active in his first day on the bench, with 22 questions in the first of three arguments on April 17, according to Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of the blog Empirical SCOTUS. Gorsuch asked 12 questions in the next case, but slowed down somewhat in the rest of the April calendar, according to Feldman's count. Still, with 108 questions in 13 hour-long arguments, Gorsuch's average of eight questions per argument appears to be higher than similar counts for other newly-arrived justices.
      In that very first argument, Gorsuch began to display what Gerhardt calls his "little bit of arrogance" — in that case toward the lawyers and later in his opinions toward his fellow justices. The issue in Perry v. Merit Systems Protection Board was how to apply a devilishly complicated federal statute on appeals in federal employee discipline cases. With the government's lawyer struggling, Gorsuch tartly interrupted at one point: "'Wouldn't it be a lot easier if we just followed the plain text of the statute?''
      Gorsuch dissented from the eventual 7-2 decision in the case, convinced that Justice Ruth Bader Ginsburg had rewritten rather than scrupulously followed the law. In dissent, he lectured his Ivy League-graduate colleagues as though they were in a ninth-grade civics class. "If a statute needs repair," Gorsuch wrote, "there’s a constitutionally prescribed way to do it. It’s called legislation."
      Gorsuch's vote helped produce conservative 5-4 decisions in two of the cases from the April calendar: a death penalty case from Texas, Davila v. Davis, and a class actions case, California Public Employee Retirement System v. ANZ Securities. He was among four dissenters in a second death penalty case, McWilliams v. Dunn, where Kennedy provided the fifth vote for the liberal bloc. 
      Apart from the votes, Gorsuch wrote or joined opinions to the right of the other conservatives. In Trinity Lutheran Church v. Comer, Gorsuch joined with Thomas in calling for allowing more government aid to church-affiliated schools than Roberts envisioned in his famous footnote 3. In Weaver v. Massachusetts, Gorsuch joined Thomas in a concurrence to question the recent precedent requiring jury selection in criminal trials to be open to the public. And he wrote separately in the unanimous decision in Maslenjak v. United States to complain that Justice Elena Kagan should not have offered advice on how to apply the decision in lower courts.
      Gorsuch ended the term by going farther to the right. He joined with Thomas and Alito in voting to uphold President Trump's travel ban in its entirety. He wrote the dissenting opinion for the threesome objecting to the summary decision in Pavan v. Smith that married same-sex couples are entitled to have both parents' names listed on a child's birth certificate, just like opposite-sex couples. And, along with Thomas, he chided the majority for refusing in Peruta v. California to take up a Second Amendment challenge to California's limits on going armed outside the home.
      All in all, Yoo and Prakash could not have been more pleased. Gorsuch, they wrote, " has lived up to supporters’ greatest hopes and critics’ worst fears." SCOTUSblog publisher Thomas Goldstein says Gorsuch "brings restored conservative energy" to the court and predicts, in the fact of the historic degree of unanimity during the past term, "historically high fractiousness" during the new term to open in October.

'Easy' Church-State Case May Make Bad Law

      Hard cases make bad law, it is said. For the Supreme Court, the dispute over government aid to resurface a church school playground in Missouri turned out to be a somewhat easy case. The question now is whether the surprisingly easy case will make bad law by limiting the power of states to enforce constitutional provisions prohibiting government assistance to private schools, whether secular or sectarian.
      The 7-2 decision in Trinity Lutheran Church v. Comer [June 26] found that Missouri had violated the Free Exercise Clause by rejecting the church's application for a government grant to resurface its playground in the interest of child safety with a rubberized material made of recycled automobile tires.
      The court had expected the case to be difficult. Oral arguments had been postponed for more than a year after Justice Antonin Scalia's death in February 2016, apparently because of fears of an inconclusive 4-4 split from the shorthanded court.
      With Justice Neil Gorsuch confirmed for the ninth seat, the justices heard arguments on April 19. From the justices' questions, the solidified conservative bloc appeared likely to pick up the votes of liberal justices Stephen G. Breyer and Elena Kagan in a ruling for the church. Only liberal justices Ruth Bader Ginsburg and Sonia Sotomayor seemed likely to stake out a strict church-state separationist position in dissent.
      The court followed the day after the decision by sending somewhat analogous cases back to the Colorado and New Mexico supreme courts to reconsider their decisions blocking state aid to non-public schools. Writing for the majority in Trinity Lutheran, Chief Justice John G. Roberts Jr. had given little weight to the Missouri constitution's provision that prohibits any funds "from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion . . . ."
      Roberts dismissed the state's interest in enforcing that provision, in part to steer clear of breaching the U.S. Constitution's prohibition against establishment of religion, as a mere "policy preference." Missouri's constitutional prohibition against aid to churches dates from its admission as a state in 1820. The constitutional provisions in Colorado and New Mexico are equally unambiguous in prohibiting aid to private schools and, like Missouri's, date from the states' admissions to the Union.
      In his opinion, Roberts described Missouri's prohibition on government aid to churches or religious sects or denominations as "odious" discrimination and even likened it to "persecution." Apart from the slightly overheated rhetoric, Roberts dropped a delphic footnote seemingly aimed at narrowing the scope of the decision.
      The case "involves express discrimination based on religious identity with respect to playground resurfacing," footnote 3 specifies. "We do not address religious uses of funding or other forms of discrimination." That caveat seems to embody the judicial restraint so revered by legal conservatives, but Gorsuch and his joined-at-the-hip conservative colleague Clarence Thomas both rejected the footnote and its implied minimalism.
      Gorsuch acknowledged the footnote — "of course"— as "entirely correct" but warned against reading the decision too narrowly. The decision, he said, would not permit "discrimination against religious exercise — whether on the playground or anywhere else." In his opinion, Thomas called for overturning the recent, 7-2 precedent in Locke v. Davey (2004) that allows states to deny scholarships for students training for the ministry.
      In her dissenting opinion, Sotomayor accused the majority of a radical break with legal precedent and historical practice dating back to the Framers. The ruling, she emphasized, marked the first decision to hold that the Constitution requires the government to provide public funds directly to a church. The decision, she went on, "weakens the country's longstanding commitment to a separation of church and state beneficial to both."
      Sotomayor rejected the majority's depiction of the case as a "simple" one that concerned nothing more than playground safety. Trinity's Learning Center had a religious mission and used the playground to "practice and spread" religious views, she said. Without specifically referencing Roberts's footnote 3, she rejected its logic. "The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar,” she wrote.
      In the oral argument, Justice Samuel A. Alito Jr. scored points for the conservative bloc by asking whether, under Missouri's constitution, a church could be denied government funds for such secular purposes as earthquake safety or counterterrorism security. The lawyer representing the state stressed that Missouri's constitution —  as construed before the state's shift of position in the playground case itself —  would have barred funds for a church but not for a school as long as it was not operated directly by a church.
      For Alito and other conservative justices, Missouri's constitution was tainted by the anti-Catholic prejudice that helped drive the later adoption of similar amendments in, according to Sotomayor's count, 38 other states. All those provisions may now be living on borrowed time even when written as broadly applicable prohibitions on aid to non-public schools of any stripe. The Colorado and New Mexico supreme courts now have to try to square their states' policies with a Supreme Court majority that sees its mission as lowering the wall that has helped preserve religious freedom in the United States by keeping church and state apart.