After 8 years, we finally got our 7th Circuit judge — as the Senate votes in defiance of Tammy Baldwin.

The Wisconsin State Journal reports:

The Senate voted along party lines to confirm Milwaukee attorney Michael Brennan to fill an opening on the 7th U.S. Circuit Court of Appeals. The tally was 49-46. The seat has been open for more than eight years, the longest ever for the nation’s appellate courts.

The Senate gives lawmakers a chance to weigh in on a judicial nominee from their home state by submitting a blue-colored form called the “blue slip.” A positive blue slip signals the Senate to move forward with the nomination process. A negative blue slip, or withholding it altogether, signals a senator’s objection and almost always stalls the nomination.

Until this year, it had been nearly three decades since the Senate confirmed a judge without two positive blue slips. Brennan’s confirmation marked the second time it has happened this year. Baldwin declined to return her blue slip.

"The dogma lives loudly within you" — Dianne Feinstein's amazing challenge to 7th Circuit nominee Amy Coney Barrett.

I'm writing about this topic for the first time because there's a NYT op-ed by lawprofs Geoffrey R. Stone and Eric J. Segall that I anticipate will get closer to what I'd like to say than what I've seen so far. At the Judiciary Committee hearing on the nomination of Amy Coney Barrett, Dianne Feinstein said something related to religion — Barrett is Catholic — that was phrased very carefully:

“Whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

That got a big reaction, including the charge that it violates the constitutional demand that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

Is "dogma" a dog whistle, expressive of anti-Catholic bias or does it aptly characterize a person with fixed beliefs that interfere with understanding law in a properly judicial way? As Stone and Segal put it:

Senator Feinstein was not suggesting that Catholics shouldn’t be judges. She was asking whether someone of deep faith and who had previously openly (and in our opinion eloquently) written about the relationship between judging and faith could cast aside her deeply held views when judging. Had Ms. Barrett said that her faith would in fact deeply influence her judging, would the question have been deemed so wrong? We think not.

Likewise, if senators had asked Justice Ruth Bader Ginsburg during her confirmation hearing if her long history litigating claims of gender discrimination would influence her judging, or if they had asked Chief Justice John Roberts whether his time working in the Bush administration would affect his decision making, no one would have blinked.

Judges regularly decide difficult legal issues in which the law at issue is unclear. In those open spaces, a judge’s personal values and life experiences will inevitably play a role in the outcome of the case. Given that Ms. Barrett had previously explored the relationship between her deeply held religious views and judging, Ms. Feinstein acted well within the bounds of fair questioning to probe deeply on this question.

The main problem with this kind of questioning is that it is so routine and so routinely answered. We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee.

To create a special immune, untestable zone is absurd.

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."

I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!

Richard Posner says he retired earlier than he'd intended because he "was not getting along with the other judges... about how the court treats pro se litigants."

He thinks pro se litigants "deserve a better shake," the Chicago Daily Law Bulletin reports.

About 55 percent to 60 percent of the litigants who file appeals with the 7th Circuit represent themselves without lawyers. Very few pro se litigants are provided the opportunity to argue their cases in court. The 7th Circuit rules on most of those cases based on the briefs....

Posner expressed awareness that his retirement "will greatly increase the burden on the existing judges." There are 11 seats on the 7th Circuit Court, and now 4 of them are vacant. One has been vacant for 7 years. And the judges who remain on the court are — as Posner puts it -- "old (one is about to turn 91!)."

"A class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand."

Wrote 7th Circuit Judge Diane Sykes for the 3-judge panel that threw out the case against Subway that was premised on the restaurant's promotion of "footlong" subs that were not always actually a foot long.

The litigation began after Australian teenager Matt Corby in January 2013 posted a Facebook photo showing a Footlong sandwich he bought was only 11 inches long, not 12....

By the way, Sykes "is considered to be near the top of Trump’s short list" of potential Supreme Court nominees, according to a Politico article from last January. She used to be a justice on the Wisconsin Supreme Court, and "was part of a legal movement that helped set in motion a conservative transformation of the judiciary in her home state."

"A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex..."

"... who decides to sneak glances at his or her classmates performing their bodily functions. Or for that matter, any other student who uses the bathroom at the same time. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall. Nothing in the record suggests that the bathrooms at Tremper High School are particularly susceptible to an intrusion upon an individual’s privacy. Further, if the School District’s concern is that a child will be in the bathroom with another child who does not look anatomically the same, then it would seem that separate bathrooms also would be appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically. But the School District has not drawn this line. Therefore, this court agrees with the district court that the School District’s privacy arguments are insufficient to establish an exceedingly persuasive justification for the classification."

From the 7th Circuit Court of Appeals opinion in Whitaker v. Kenosha Unified School District, which affirmed the grant of a preliminary injunction to a Wisconsin transgender student wanting seeking access to the bathroom of choice. (For a shorter read, here's a Slate article about the case.)

The Supreme Court denies cert. in the John Doe case — O'Keefe v. Chisholm.

SCOTUSblog reports.

ADDED: Here's the post from last month "The Wall Street Journal urges the U.S. Supreme Court to take the free-speech case arising out of Wisconsin's John Doe investigation."

I thought the Supreme Court should take cert., but it's important to see that this case was about a federal court interfering with proceedings in state court, and at this point, the Wisconsin Supreme Court is hearing the state court case. The federal court abstained, and one of the reasons for abstention is that the state court may choose an interpretation of the state statute that would avoid the federal constitutional question. The Supreme Court's denial of cert. doesn't mean that the 7th Circuit got the abstention doctrine right.

The Wall Street Journal urges the U.S. Supreme Court to take the free-speech case arising out of Wisconsin's John Doe investigation.

You can get to the editorial here:

On Friday the Justices will consider whether to hear O’Keefe v. Chisholm, a Section 1983 civil-rights lawsuit brought by Wisconsin Club for Growth director Eric O’Keefe against Milwaukee District Attorney John Chisholm and other prosecutors. The suit charges the prosecutors with a multi-year campaign to silence and intimidate conservative groups whose political speech they don’t like....

The 7th Circuit's decision was based not on the merits but on deference to the ongoing proceedings in state court, which theoretically could have responded to the federal constitutional questions. That is: the Younger abstention doctrine. I discussed the 7th Circuit opinion when it came out last September, saying:

There is an exception to the Younger doctrine, which the plaintiffs tried to use here, that applies when the federal rights claimants show that the prosecutors in state court are proceeding in "bad faith." The question is whether the prosecutors are really attempting to secure a valid conviction or whether they are simply using the legal process to harass the federal court plaintiffs. The 7th Circuit panel found some perplexity in the free speech issues about campaign coordination:

The Supreme Court has yet to determine what “coordination” means. Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person’s election? What if the speech implies, rather than expresses, a preference for a particular candidate’s election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician’s committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions.

This is a nudge to the state judge to shut down the investigation, and yet there is something very disturbing about this ambiguity in free speech law and the leeway it gives prosecutors to stall a political group throughout a campaign season. I'd like to see the Supreme Court make this clear....

Back to the WSJ editorial:

Specific injustices aside, the U.S. Justices should also hear the case because it is part of a larger legal effort to subvert their 2010 Citizens United ruling. The game is to use the theory of “coordination,” which allows vast investigations to be instigated on the thinnest evidence, to sweep issue speech back into the regulatory umbrella of campaign-finance law.

The liberal Brennan Center for Justice is pushing regulations coast to coast that would reduce protections for issue speakers and encourage “coordination” probes. The Wisconsin case is an opening for the Court to tell prosecutors and regulators they must tread carefully when rights of free association are involved.

Wisconsin’s prosecutorial machinery has abused the law to silence disfavored political speech. This one is made to order for Supreme Court review.

I agree. The Court needs to take this case. Quite aside from all the substantive problems, the idea of deferring to the state courts is supposed to be based on the ability of the state courts to step up and deal with the substantive problems themselves. The 7th Circuit decision came out 7 months ago. Where's the action from the state courts? If there are indeed free-speech violations, they've been going on for 3 years. It's one thing for federal courts to refrain from jumping into state court proceedings that might do a decent-enough job of enforcing federal rights. But here, these proceedings have worked to suppress political speech for 2 election cycles and beyond. It's quite shocking.

"The Supreme Court now has a chance to set something right in the voting-rights area."

Says Linda Greenhouse, pressuring the Court to take the case about the Wisconsin voter-ID law — which was upheld by a 7th Circuit panel. The vote to rehear the case by the full 7th Circuit court failed 5 to 5, with the eminent Judge Posner dissenting at length.

What seemed most significant to Judge Posner was what he called the “changed political culture in the United States” in the years since the Supreme Court took a benign view of voter ID [in Crawford v. Marion County Election Board]. “All the strict photo ID states are politically conservative,” he wrote, illustrating the point with a map and a “political makeup” list of the nine strictest states, all with Republican legislatures. The claim that photo ID was necessary to deter or catch voter-impersonation fraud was, Judge Posner wrote, “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

He added: “As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin Legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”

The Wisconsin Attorney General Brad D. Schimel, in a brief opposing Supreme Court review, said: "It is not this court’s job to referee a debate between the Seventh Circuit panel and Judge Posner," which Greenhouse admits is a good line, even as she bashes the brief as "weak on its facts, to put it charitably."

How Judge Randa got the new anti-John-Doe investigation case.

The Journal Sentinel explains:

Normally, federal judges are randomly assigned to cases. But when [Citizens for Responsible Government Advocates] filed its lawsuit, it said its case was related to two others that Randa already had. Doing that meant the case automatically went to Randa to determine if it should stay with him.

One of the cases that CRG contended was linked to its lawsuit was a challenge to an investigation of Gov. Scott Walker's campaign and groups allied with him. However, CRG filed its suit only after an appeals court had ruled that earlier case be dismissed.

"This was artful to the point of manipulative," said Jeremy Levinson, a Democratic attorney who specializes in campaign finance laws.

CRG attorney Andrew Grossman said in an email to the Milwaukee Journal Sentinel that the two cases "involve some common legal issues and factual background. We followed the court's rules in disclosing related litigation, and any objection to that is ill-informed grousing."....

U.S. Supreme Court keeps Wisconsin voter ID law from applying to next month's elections.

The NYT headline for this story is really bad: "Courts Strike Down Voter ID Laws in Wisconsin and Texas." The news about the Wisconsin law isn't that a court struck the law down, though a federal district judge did find the law unconstitutional back in April. The news that just happened was that the U.S. Supreme Court has vacated the 7th Circuit's stay of the district court's injunction. This was done in order to give the state time to petition the Supreme Court to hear the case.

Here's the PDF. It ends this way:

Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court

The period is missing in the original, I thought you'd like to know. Some indication of haste?

Anyway, as you can see, the Court isn't striking anything down. It's just preventing the 7th Circuit's resolution of the case from going into effect until the Supreme Court either decides it won't hear the case or actually decides the case. If it doesn't take the case, the 7th Circuit's decision will prevail, and the voter ID law will go back into effect. If it takes the case, it might very well uphold the 7th Circuit's decision and the voter ID law will go back into effect.

Justice Alito, joined by Justices Scalia and Thomas, dissents on the ground that the standard for vacating a stay has not been met because it can't be said that the 7th Circuit "clearly and ‘demonstrably’ erred in its application of ‘accepted standards.'" But they nevertheless acknowledge the point of vacating the stay in this case:

There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. 

So there's such a good reason for keeping the law from applying to the upcoming elections, and vacating the stay is less of an indication that the court below got wrong than would normally be the case.

As predicted, the 7th Circuit requires abstention in the John Doe investigation case, leaving it to the state judge to address the constitutional questions.

Here's the PDF of the opinion.

After the oral argument on September 9th, I wrote: "I predict the prosecutors will win in this case, but mainly because the John Doe investigation can and should be shut down by the state court judge." And that seems to be what happened. I'm going to read the whole thing and get back to you.

ADDED: The opinion is about the scope of the Younger abstention doctrine, which requires federal courts to refrain from enjoining an ongoing proceeding in state court, on the theory that the state court judge ought to handle the federal questions — even federal constitutional question — that arise in the context of that proceeding. The difficult part here is that in this case there is a state court judge overseeing a John Doe investigation, and, as Judge Easterbrook, writing for the 3-judge panel says (citations omitted):

7th Circuit reinstates Wisconsin voter ID law.

The Milwaukee Journal Sentinel reports.

After blogging this morning about the impending oral argument — here — I listened to it — here — all the way to the end where the state asks the court to reinstate the law today, and I look and see that, in fact, has already happened.

The MJS reports that the court issued an order allowing Wisconsin to enforce the law for the upcoming elections. The court noted the way the Wisconsin Supreme Court's decision "reduces the likelihood of irreparable injury, and...  changes the balance of equities and thus the propriety of federal injunctive relief, and... the state's probability of success on the merits."

The judges on the panel were former Wisconsin Supreme Court Justice Diane Sykes along with Frank Easterbrook and John Tinder. At the oral argument today, they were quite skeptical of the power of the district judge to reject the importance of preventing in-person voter fraud.

In the 2008 case upholding the Indiana voter ID law, Crawford, the U.S. Supreme Court had accepted that the state had an important interest in preventing fraud and in promoting public confidence. In the current case, the district judge, Lynn Adelman, held a trial and listened to an expert witness who opined that it's unlikely that anyone would engage in this kind of fraud. Those who are challenging the Wisconsin law want the appeals court to defer to his factfinding, but Sykes and Easterbrook resisted the notion that hearing opinion witnesses could enable a trial judge to supersede the opinion of the U.S. Supreme Court.

Wisconsin voter ID law is up for oral argument in the 7th Circuit today.

The Cap Times reports:

[The federal district judge Lynn] Adelman found some 300,000 people in Wisconsin do not have IDs and wrote the voter ID law would "prevent more legitimate votes from being cast than fraudulent votes." He ruled there was no rational basis for the law because voter impersonation — the only kind of fraud the voter ID law would curb — is nonexistent or virtually nonexistent....

Friday's oral arguments come less than two months after the Wisconsin Supreme Court upheld the voter ID law in a pair of cases. One was decided 5-2; the other 4-3.

Later today, we should be able to get to audio of the argument here by hitting the "Today" button. The argument is the first of the morning, and the judges are Easterbrook, Sykes, and Tinder.

Atheist churches.

I found out about atheist church today. I was listening to the oral argument in the 7th Circuit in a case called Freedom From Religion Foundation v. Jacob Lew, about a federal income tax provision that lets religious ministers exclude their housing allowance. The case was mainly about standing, with the government's lawyer arguing that only someone who sought and was denied the exclusion could challenge it. Somehow that took a detour at one point into whether there are atheist churches, and the government's lawyer said there were, but couldn't name any.

I found this video about an atheist church called The Sunday Assembly:

The 7th Circuit panel seemed quite skeptical of the federal court's place interfering with the John Doe investigation.

I've listened to the oral argument, here, and here's Patrick Marley's report in the Milwaukee Journal Sentinel.

"I don't understand why the federal courts at the micro-level would be brought in," said Diane Wood, chief judge of the U.S. 7th Circuit Court of Appeals. Later, she expressed uncertainty about taking "an invitation to butt into a state criminal proceeding."

I predict the prosecutors will win in this case, but mainly because the John Doe investigation can and should be shut down by the state court judge.

"The cost to taxpayers for defending the state against lawsuits over an investigation into Gov. Scott Walker and his allies has quickly escalated to more than $672,000."

"With lawyers headed to Chicago for arguments in an appeal Tuesday, the cost is certain to climb. Already, the bills are nearly double the $350,000 that had been recorded as of June."

Tuesday = today. So, stay tuned for reports on the oral argument.

"We're sorry if campaign law has become so complex that the relevant details can't fit in a newspaper article..."

Say the editors of the Wall Street Journal in "A First Amendment Education/What the press corps isn't telling you about the Scott Walker probe."

(Link will work for nonsubscribers to the WSJ.)

ADDED: Since I'm adding the "Daniel Bice" tag, I want to quote this part of the article:

In a recent online chat, a reader asked Daniel Bice, the Milwaukee Journal Sentinel's go-to reporter for prosecutors, why his articles failed to explain the difference between "express advocacy" and "issue advocacy"—a crucial distinction in the law on coordination between political campaigns and outside groups.

"The reason we don't go into great detail on express advocacy is that you can't discuss it without going into great detail. As you just did," Mr. Bice responded. So Mr. Bice admits that he leaves out crucial information because it's all so very complicated.

We're sorry if campaign law has become so complex that the relevant details can't fit in a newspaper article, but allow us to give it a try.

As predicted, the 7th Circuit Court of Appeals panel has struck down the Wisconsin and Indiana bans on same-sex marriage.

Here's my blog post on the oral argument — which was only 9 days ago. The opinion is written by Judge Richard Posner, who at the oral argument was audibly disgusted by the efforts to justify the ban.

Here's a PDF of today's opinion, which I'm just starting to read. I can see that Posner puts his distinctive imprint on the standard equal protection doctrine:

The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive. The conventional approach doesn’t purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objective. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.” That is why the briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over- or underinclu- sive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, under- inclusive in extending marriage rights to other non- procreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.

ADDED: Indiana claimed its interest was based on the biological reality that only heterosexual sex produces babies.

"In short, Defendants claim a carte blanche to target more or less every person or group that has ever participated in Wisconsin political or policy debates..."

"... to raid their homes, seize their records and personal effects, subpoena their emails and phone records, and threaten them with prosecution - all things that Defendants actually did in this case – merely for speaking out on the issues. It would be difficult to conceive a more offensive disregard for the First Amendment rights of citizens to advocate and associate with others to advance their beliefs through the political process, the very lifeblood of representative democracy."

From the brief filed yesterday in the 7th Circuit Court of Appeals by Eric O’Keefe and Wisconsin Club for Growth, excerpted and discussed by Professor Jacobson, whose blog post ends:

Lavrenti Beria, head of the KGB under Stalin, is reported to have said: “Show me the man and I’ll find you the crime.”

If the factual recitation in the John Doe targets’ Brief is accurate, that was exactly the methodology used by prosecutors in Wisconsin.

The man was Scott Walker, the crime has not yet been found, but in the pursuit the conservative movement was silenced and had its constitutional rights violated.

I got to Professor Jacobson via Instapundit, who said: "The Deep State isn’t that big on law, but it’s big on legal institutions."

ADDED: Here is an easily readable PDF of the document. Those with a background in Federal Courts (a subject I've taught for 30 years) should be interested in the details of the discussion of the Younger, Pullman, and Burford abstention doctrines. The John Doe investigation is a proceeding that one might argue should be allowed to take its course within the institutions of state government, especially since there is a state statute to be interpreted and applied. Why should O'Keefe and the Club be allowed to go on the offensive in federal court? Isn't that disruptive, duplicative, and disrespectful? The brief must answer those questions.

"These people and their adopted children are harmed by your law [banning same-sex marriage]. The question is what is the offsetting benefit of your law. Who is being helped?"

Asked Judge Richard Posner, as the 7th Circuit heard argument today in cases challenging Wisconsin and Indiana law.

Based on the linked news report, there was nothing new to be said on the well-worn subject, even with Posner on the panel. But I will listen to the argument, here (Wisconsin) and here (Indiana), and update this post if I hear anything notable.

It seems predictable that the 7th Circuit will reject the ban and that the issue will soon be decided by the Supreme Court. 

ADDED: I've listened to the argument and recommend it. It's lively, and the government lawyers are on the run, but repeatedly cornered by the simple and predictable demand to articulate an interest served by excluding gay people from marriage. All of the judges clearly reject tradition as the interest, and the idea of leaving it to the legislature is repeatedly scoffed at as merely getting us back to the need to at least show some legitimate governmental interest. There is a great deal of attention to the welfare of children, with the government lawyers stressing the capacity of heterosexuals to produce children and the value of channeling this phenomenon into stable relationships for the sake of the children and the judges unable to see the reason to exclude gay people, who may also have children, especially given that the states in these cases both allow gay people to adopt. Why do the states want to hurt those kids? I lost track of the number of times the government lawyers were stymied by that question.