Open Thread
What’s on your mind?
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
At Large Circuit Nominees?
If the blue slip is abolished for district courts, it should be obliterated for circuit courts.
During the first Trump Administration, the blue slip policy was effectively eliminated for circuit court judges. The goal, of course, was to ensure that states with one or more Democratic senators would not be able to block all circuit court nominees. Still, the blue slip policy remained for district court judges through Trump 1.0, the Biden Administration, and Trump 2.0. Does anyone expect the blue slip policy for district court judges to survive if a Democrat wins the White House in 2028 with 56+ Senators? I am doubtful. Indeed, given how Democrats blocked so many U.S. Attorney nominees, I am doubtful the blue slip endures even for that position.
Let's just assume the blue slip policy is eliminated for district court judges. Should the Republicans ever regain power, I propose a thought experiment: actually eliminate the blue slip for circuit judges. As I've noted, circuit court judges belong to the circuit, not the state. It is a mistake to even think of a "home state senator" for a circuit court seat. Of course seats are affiliated with a state by virtue of custom, but nothing in the statute requires it. If Congress wants to assign a seat to a state, they can easily do so. But a Circuit Court Judge decides cases that affect all of the states in a circuit. Indeed, over time, some seats have "switched" between states.
The President could perhaps facilitate that process by making all circuit court nominees "at large." In other words, the President could solicit nominees from candidates in all states in that circuit. If a Fifth Circuit seat opens up, the Senators from Texas, Louisiana, and Mississippi could all make recommendations, and the President could pick the best candidate all around. Likewise, if an Eighth Circuit seat opens up, the Senators from the states between North Dakota and Arkansas can make recommendations.
There are many obvious objections.
First, and foremost, requiring this much consultation can gum up the process. Dealing with one set of senators is a lot of work. Multiplying that by many more can become impossible. But it would be just that--a consultation. The White House would only have to interview the judges that clear the bar. Again, no actual blue slip. I suspect if you rank all of the nominees circuit-wide, few would make the cut.
Second, some senators are very good at picking judges. Opening up the process to so many not-so-good senators, can make the process worse. Indeed, Senators are democratically accountable, while people in OLP and the White House Counsel's Office are largely unknown. I think the response is that very few few Senators are actually good at this process. My goodness, the Senators from Mississippi and Arkansas should be permanently disqualified from picking their friends as judges. I think my recommendation would, on balance, get far more strong judges than the status quo. Of course, the President can give more deference to senators with proven track records of picking judges.
Third, Senators are unlikely to go along with this process, and will not give up their customary prerogative. Again, in my hypothetical, the blue slip is gone for district court judges, so it will be a different world. Indeed, given that district court judges can issue universal vacaturs that affect the entire country, I'm not sure why senators should have that much control. The Senate can of course vote down a nominee, but that would have to be a vote they are accountable for. Would Senators Boozman and Cotton have voted down Judge Rudofsky on the floor? Probably not.
This is just a thought experiment. Fodder to consider for the future. That is, unless the Grand Old Party goes the way of the Federalists and the Whigs.
Back At The Mayflower
A recap of FedSoc NLC Day #1.
The first day of the 2026 Federalist Society Convention is in the can. There is much to report.
First, it is good to be back at the Mayflower--well at least good for those of us who made it in. Several years ago, FedSoc decided to move from the Mayflower to the Hilton, a much larger venue. The group had simply outgrown the classic hotel. The downside, of course, is that the Hilton is a terrible hotel. There were assassination attempts on two Presidents at the "Hinkley Hilton." There was no common meeting area, and attendees had to traverse a labyrinth of hallways between sessions. Worse, the rooms were a decade overdue for renovation. We hated it. But most of us were able to fit in.
This year, the registration for the national convention filled up almost instantaneously. I had planned to bring many of my students, but they simply never made it off the waiting list. Longtime members were hanging out in the lobby, hoping to make it off the waiting list, with no luck. I heard that the Harvard FedSoc chapter scheduled a conference for students who could not get in--apparently known as the "shadow docket." People complained to me, as if it was my fault we went back to the small Mayflower because of my carping about the Hilton. I get blamed for everything.
FedSoc will have to figure out what to do for next year, the 40th Anniversary of the National Lawyers Convention. We could always try to check out the new East Wing Ballroom, assuming Judge Leon doesn't enjoin it! The Gaylord Hotel in Maryland could fit everyone, but I am still scarred from the gala dinner there in 2016. I have long been a fan of holding the convention outside of D.C. It would send the exact right message. The times where people in D.C. offices can just stop by for a few panels are long gone. (The sold out registration means only those willing to attend the entire program will be there.) And anyone who wants to speak on the program of this platform should be willing to get on a flight. I would have recommended Texas for the venue, but we will soon be in hostile territory. Perhaps the free state of Florida is the last, best hope.
Second, the format of the FedSoc conference is different. I was so accustomed to the usual rhythm, I feel a bit disoriented. There are no breakout panels. Every panel is a "showcase" panel in the Grand Ballroom. The other rooms are overflow rooms with screens to watch the programming. The schedule is all different. The Rosenkranz Debate was on Thursday afternoon rather than Saturday afternoon over lunch. The Bork and Olson Lectures are both on Friday. And the program ends on Saturday at 2:15, about three hours earlier than usual. Also, instead of having lunchtime panels, all of the rooms on the second floor host smaller, intimate lunches. You could sit at a table with a judge and eight others to chat about an interesting topic. I was at Chief Judge Elrod's table to learn about the Lord of the Rings. (Trigger warning for commenters: I have never read any of those books, I fell asleep during the first movie, and never watched the others.) The discussion was fun! There are some judges who treat their judicial sinecures like Gollum treats the ring. How precious.
I see pros and cons to the new format. On the plus side, this format was far less overwhelming. I routinely felt drained by all of the content. Also, I always felt like I was missing something when I committed to a panel. As a result, I would often bounce between different panels, ensuring that I missed stuff. On the negative side, I enjoyed the ability to pick different panels that may be of interest. I thought the practice groups put on a wide arrange of topical panels. Moreover, there are far fewer speaking slots available with only a few panels each day. These are prime opportunities for up-and-coming members. Still, for this America 250 celebration, I liked the theme in which each panel was framed around a few words from the Declaration. This is an area I have studied for years, and I still learned quite a lot. I don't think we could have kept the Declaration theme going with breakouts.
Third, there is a much stronger focus on students--the lifeblood of Fedsoc. I appreciated that each panel was introduced by a student, rather than the chair of the practice group. During the Scalia dinner, the winners of the Feddie student chapter awards were asked to stand up. I am so proud of the South Texas Chapter, and my students Ryan Lanier and Makayla Arthur, for winning the Hamilton Award for "Most Improved Chapter." Matthew Weinstein, the President of the UCLA chapter during the Percival protest, was given a courage award. And each of the Soc! lunchtime tables was hosted by a student chapter leader.
We can never forget that FedSoc was founded by a bunch of law students. Old people (present company included) need to always give the youth these sorts of opportunities. It wasn't that long ago that I met Will Scharf at the Mayflower, and now he is White House Counsel. I can say the same for so many current judges and other officials that I met when I was student. Indeed, some of the current judges hosted me as a Professor at their chapters! (In 2033, I'll be 49.) Everything that rises must converge.
Fourth, the decoration of the Mayflower and the Marriott Marquis ballroom was top-notch. There is red, white, and blue bunting all over the Grand Ballroom. The backdrop of the Scalia dinner was expertly done, topped off with George Washington's bible! (No, we couldn't touch it.) The Marine Corp band played during the processional. The Madison Club reception was no longer crammed into a tiny, dark, and noisy tent. It was held in a spacious atrium at the Marquis. Moreover, Madison Club members have access to Edgar's as a lounge to get food and snacks during the day. What a really, really smart idea. This sort of attention to detail matters, at least to me.
Fifth the security is intense. Registration is now available on the lower level. No one is allowed into the hallway without showing credentials and passing through a body scanner. Large bags are banned and smaller bags are searched. The busses from the Mayflower to the Marquis were swept for security, and there was a National Guardsman on board. It is a sad commentary that we have to take these precautions. But with an actual assassination attempt against Justice Kavanaugh, I think we have to accept these costs. (During the Scalia Dinner, Justice Alito praised the courage of Justices Kavanaugh and Barrett for joining the Dobbs decision, knowing what risks that could bring.)
Sixth, I was sort of expecting the vibe at the Mayflower to be grim in light of last week's election. I remember how the 2008 convention felt something like a funeral. I think the mood was mostly one of shock. There are efforts in play to figure out how to deal with the loss of Attorneys General in Texas, Ohio, Iowa, and Kansas. Other states will have to pick up the heavy lifting. Lawyers in Austin can find safe refuge in Baton Rouge, Jackson, St. Louis, Nashville, Tallahassee, Montgomery, and other cities. I am currently researching the laws of intervention on both the plaintiff and defendant side, confessions of error in criminal cases, as well as standing for state legislators and the state senate. The agenda has shifted.
Seventh, one thing I love about the National Convention is that business is conducted right in the hallways. There is a strong sentiment to do everything we can to confirm the remaining judges. These aren't quite the midnight judges of the outgoing Federalist Party, but we are in a similar mindset. There is a universal agreement that Judge Rudofsky was screwed. I second everything my friend Rob Luther wrote in this op-ed in the Arkansas newspaper. And there is a concerted effort to help Elliot Gaiser get across the finish line. What a complete waste if this seat is left for James Talarico to fill. Talk about cutting off your nose to spite your six-gendered face. And then there's Todd Butler. Had the election turned out differently, things may have gone differently. But he is on the path to confirmation. I hope Butler proves me wrong--and he will have a quick opportunity to do so. The January en banc siting has a huge 922(g) case and a challenge to Texas's social media law. As for the new Eighth Circuit nominee, Cody Hiland, he have to prove a lot of people wrong.
More to come on Day #2.
SpaceX's S42 Launch Is Named "Don't Panic"
Various sources report this, and include this picture as corroboration:
Thanks to InstaPundit and @AaronGaalema for the pointer. And, while we're saying thanks, thanks for all the fish. (If you really need to ask, here's the answer.)
Living Today Without Email—Like Animals!
From the Stanford site; "degradation" indeed:
Degradation (started 9:53 AM Nov 12, 2026)
Vendor is reporting a service issue that may prevent users from accessing their Office 365 E-mail via Outlook and/or webmail.Outlook Email and Other Microsoft Services Experiencing Issues
Some users may be unable to access Microsoft Outlook email and calendar through the Outlook desktop client, webmail, and webcal. Other Microsoft services may also be affected.The vendor is reporting a service issue that may affect access to Microsoft services. University IT (UIT) engineers are monitoring the situation and will provide updates as more information becomes available.
Potentially impacted services include:
- Exchange Online
- Microsoft Teams
- SharePoint Online
- Microsoft 365 Copilot
- Microsoft Defender XDR
Services with email integration, including page to email, Mailman, and Cardinal Fax
We apologize for the inconvenience. Next update by 1:30 p.m
Arkansas S. Ct.: Legislature May Revive Cases Barred by Statute of Limitations
The court reverses its precedent, dating back to 1846, that held such revival unconstitutionally restricted the defendant's "vested rights" not to be sued, which had been created by the earlier statute of limitations.
From H.C. v. Nesmith, decided last week by the Arkansas Supreme Court, in an opinion by Justice Nicholas Bronni, joined by Justices Courtney Rae Hudson, Cody Hiland, and Rhonda Wood (note that other state courts are split on this question, see, e.g., this post and this one):
This case presents a particularly important question: Can the General Assembly extend the statute of limitations in cases where it has already run and afford child-sex-abuse victims an opportunity to hold their abusers accountable? … [T]his court's vested-rights precedent … categorically bars "expand[ing] a limitation period so as to revive a claim already barred." …
Revisiting our vested-rights precedent, we conclude that it lacks any constitutional basis and, as such, cannot stand. We therefore overrule our prior cases prohibiting the legislature from expanding a limitations period and thereby reviving time-barred claims [and] uphold the Vulnerable Victims of Sex Abuse Act against Nesmith's constitutional challenge ….
[Under] our vested-rights precedent …, "the legislature cannot expand a statute of limitation so as to revive a cause of action already barred." That doctrine rests on the assumption that when a civil statute of limitations runs, a tortfeasor has a vested right to the property that could have been the subject of a potential claim….
[But] our cases do not cite any constitutional basis for that doctrine. Far from it, when we first employed that principle to strike down legislation in 1933, we instead relied on a single legal encyclopedia published in 1915 assuring us that—at that sole moment in time—most jurisdictions held that legislatures could not revive a claim after a statute-of-limitations defense had run. Or, perhaps more generously, we relied on that legal encyclopedia plus an unreasoned extension of this court's prior case law suggesting that to retroactively alter an applicable statute of limitations, the legislature needed to speak clearly and show it had considered the consequences. That approach, unbound by actual text or constitutional history, is not consistent with our constitutional role….
To be sure, some later cases—perhaps recognizing that our earlier cases do not cite any constitutional language supporting our vested-rights precedent—suggest that precedent rests on due-process principles…. [But] that label does not work because the expiration of a statute-of-limitations period does not confer a property right—or any other right for that matter.
If You Run Social Media for a University, Don't Misprint the Nickname of Its Team
From Hinckley v. Univ. of Wyoming, decided Aug. 28 by Judge Scott Skavdahl (D. Wyo.), but just recently posted on Westlaw (appeal pending):
{Unless otherwise noted, these facts are uncontested.} Plaintiff … alleges that she was wrongfully terminated from her employment as a Marketing and Communications Specialist I at University of Wyoming because of her gender and in retaliation for protected workplace conduct….
Shortly after starting in her new role, Plaintiff began to display job performance issues, including being late to work, treating others poorly, and making mistakes. Some of these performance issues may have been due to the lack of oversight and direction supplied by [Marketing Manager] Cattelan, but Cattelan was not Plaintiff's supervisor. Nevertheless, Plaintiff made numerous mistakes that were not a result of Cattelan's lack of guidance or oversight.
If You Commit a Crime with a Gun, You Might Not Want to Use a Purple Gun with a Blue Laser Sight
And if you do plan on doing that, you might not want to make a rap video depicting that very gun.
From Commonwealth v. Ashford, decided two weeks ago by a Pennsylvania appellate court, in an opinion by Judge Mary Murray, joined by Judges Timika Lane and Kate Ford Elliott:
The trial court summarized the evidence adduced at Appellant's jury trial …
On February 11, 2023, … [(Ms. South)] was carjacked in Reading City, Berks County, Pennsylvania, by three men in black balaclavas[, one of whom] brandish[ed a] handgun[ ] with blue laser sights….
The evening prior, on February 10, 2023, a video [("the video" or "the YouTube video")] was uploaded to the online video sharing platform[,] YouTube[,] depicting Appellant and [two] other men in black balaclavas handling and displaying various firearms with blue laser sights, including a purple Glock handgun. [The video was admitted into evidence and played for the jury at trial, albeit without sound.] The video itself is undated, though Appellant appears to be around the same age [in the video and at the time of the offense,] and is depicted wearing the same sweatshirt in which he was apprehended ten days later.
Today in Supreme Court History: November 12, 1975
11/12/1975: Justice William O. Douglas resigns.
Open Thread
What’s on your mind?
Texans For Elliot Gaiser
I was very pleased to see that Elliot Gaiser was nominated to the Federal District Court for the Northern District of Texas. I've seen some suggestions that Elliot does not have sufficient ties to Texas to support the nomination. Federal district court judges are required to live in their district upon confirmation. Indeed, I can think a number of recent appointees who have been nominated to courts in districts where they did not live in, and may not have lived in since their childhood.
Still, I think it may be useful to lay out some of Elliot's ties to my adopted home state of Texas. You see, not all of us were fortunate enough to be born in Texas, but we all got here as quickly as we could.
For starters, I've known both Elliot and his wife Alexandra since before they started dating. He was at the University of Chicago and she was the University of Texas. (I spoke at both of their FedSoc chapters while they were students.) Indeed, Elliot and Alexandra started dating long distance with knowledge that they would both be clerking in Houston--Elliot for Judge Edith Jones and Alexandra for Chief Judge Jennifer Walker Elrod. I got to know both of them even better during their clerkship year.
Elliot's grandma has lived in Houston since Elliot was a child. Alexandra's immediate family is in Dallas, including her parents, brother, sister, and more. Alexandra's dad, Allen Harrison, is the president of Medical City Dallas and is the incoming chair of the Texas Hospital Association. Elliot and Alexandra were married in Texas, and their children were dedicated at that same chapel.
After clerking for Judge Jones, Elliot was at the D.C. Office of Gibson Dunn, and worked closely with the Dallas office. Elliot was on the briefing with James Ho and the First Liberty Institute for Sause v. Bauer before the Supreme Court. Elliot also worked on the Indian Child Welfare Act litigation in the Northern District of Texas. He represented Texas families who were seeking to adopt children of Indian descent. Elliot worked on the case in Judge Reed O'Connor's courtroom in the Northern District of Texas and before the Fifth Circuit. That case was also litigated in Texas State Court. In the Interest of Y.J. (also referred to as Y.R.J.), a Child, Trial Court Cause No. 323-107644-18, 323rd District Court, Tarrant County, Texas (Honorable Alexander Han Kim / Judge Alex Kim). Elliot also worked with the Dallas-based trial team at Gibson Dunn in the AT&T/TimeWarner antitrust suit.
Elliot and Alexandra have been closely connected to the Texas conservative legal movement. Alexandra interned for Sen. Cornyn's judiciary committee staff under Chief Counsel Matt Johnson and later Chief Counsel Noah Phillips. Alexandra is on the Steering Committee of the Texas Review of Law & Politics, where she served as Editor in Chief. Alexandra and Elliot are regular attendees at the annual TROLP banquet dinners. (Both of the Texas Senators are recipients of the coveted "Jurist of the Year" bobblehead, though mine is the most glamorous.) Elliot has spoken at the Texas Chapter Conference, and routinely attends Texas FedSoc happy hours and other gatherings.
Elliot is deeply respected by members of the Texas conservative legal movement. This evening, he attended the Texas FedSoc gathering at the Mayflower and we are all pulling for him. He would make a stellar judge and fill a seat that cannot be left empty.
Judge Richard Posner, RIP
Posner was one of the greatest legal scholars of all time, a founder of law and economics, and an enormously influential judge.
Judge Richard Posner passed away yesterday. Posner was one of the greatest legal scholars of all time, one of the founders of the field of law and economics, and probably the most influential lower-court federal judge of the last several decades. His contributions across a wide range of fields are so great, that no obituary can possibly do them justice.
As a longtime professor at the University of Chicago Law School, Posner was a pioneer of the application of economics to legal issues. His book Economic Analysis of Law, (which has gone through numerous editions since the first one in 1973), was and is the best overview of the field. His classic articles on antitrust law, regulation, the economics of common law, and many related issues were pathbreaking applications of economics to law that continue to influence economists, legal scholars, and policymakers even many decades later.
In addition to his many contributions to law and economics, Posner also published enormously influential books and articles on a dizzying array of other issues. I can only mention a few here. His book Sex and Reason is a tremendously insightful analysis of legal regulation of intimate relationships. How Judges Think and Reflections on Judging shed light on a variety of issues relating to judicial behavior, and legal philosophy. Law and Literature is one of the greatest books on the depiction of law in classic literary works. This list of pathbreaking Posner works can be extended almost endlessly!
Posner became a federal appellate judge in 1981 (appointed to the US Court of Appeals for the Seventh Circuit). There, he became perhaps the most influential federal lower court judge of his time, writing a variety of widely cited opinions. He was famous in legal circles for drafting almost all of his opinions himself, rarely relying on law clerks to do it.
A few of my own experiences with Posner and his work may shed some small additional light on the man and his achievements.
As a first-year law student, I was required to take an early-morning Contracts class. Not being a morning person, I periodically overslept and missed class (Posner, I'm sure, would never have done such a thing!). As a result, I was confused about some issues when final exam time came around. The class textbook was only of limited help in clearing up my confusion. So I decided to read the contracts chapter of Economic Analysis of Law. In a relatively few pages, Posner made everything much clearer, and I came to a much better understanding of a wide range of contracts issues than I had before, from studying the much longer textbook. Thanks to Posner, I did much better on the exam than I had any right to expect. He had a gift for distilling complex issues of law and public policy and making them readily understandable even to late-sleeping slackers!
A few years later, I was a law clerk for a federal appellate judge. Usually, when courts cite legal precedents, they do not indicate the name of the judge who wrote the decision. But my judge - who is more conservative than Posner and has a very different judicial philosophy - made clear that, when citing a Posner opinion, I should make sure to indicate Posner was the author. It's a small, but telling, indication of the respect Posner commanded from jurists across the political and jurisprudential spectrum.
Early in my academic career, I was co-editor of the Supreme Court Economic Review. One of the more difficult duties of academic journal editors is dealing with peer reviewers, who often procrastinate, submit inadequate reviews, or both. One time, on a Friday afternoon, I e-mailed Posner an article submission, asking him to review it. Due to his simultaneous work as legal scholar and judge, Posner was almost certainly much busier than most of our other reviewers. Still, on Saturday morning, I woke up to find a message from Posner in my e-mail inbox. I expected the message would indicate whether he accepted the assignment or not. But instead, I found an extremely thorough and insightful review of the article I had sent him - one of the best peer review reports I have ever seen. In addition to his many other achievements and talents, Posner was extraordinarily hard-working and efficient. He made most of the rest of us seem lazy and indolent by comparison.
I was privileged to know Posner over a period of many years, though we interacted only occasionally. Most of my professional writings related to his work were critical, as in the case of my review of his book Law, Pragmatism, and Democracy, (to which he wrote a solid response, and I in turn did a short rejoinder), and my criticism (in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain) of his defense of the Supreme Court's controversial ruling in Kelo v. City of New London.
In retrospect, I fear these writings did not always sufficiently convey the enormous respect - even awe - that I had for Posner's many achievements. But I did support his longstanding campaign to get rid of the Bluebook, the ridiculously overcomplicated system of legal citation. In general, I am not a fan of book-burning. But I was happy to follow Posner in making an exception for the Bluebook! For a time, we even collaborated on an effort to persuade law journal editors to rethink the system.
Much, much more can be said. No words of mine can even come close to doing justice to Judge Posner's many achievements, or to his generosity to students and younger colleagues, of which my own experiences with him were just small examples. Thus, I will close by offering my profound condolences to those of his friends, family, and colleagues, who might read this post.
UPDATE: For more on Judge Posner's life and achievements, see this obituary on the University of Chicago Law School website.
Who Is Left On The Bench For 2033?
Even if a Republican wins the 2028 presidential election, it will be virtually impossible for the Senate to flip red during his term. In all likelihood, there will not be a Republican President with a Republican Senate until 2033. As a result, it is unlikely that any conservatives are appointed to the Supreme Court, or the lower courts, over the next six years. A friend suggested, mostly in jest, that Chief Justice Roberts should resign to allow his seat to be filled during divided government. But I suspect the Democrats would just keep the seat open for two, four, even six years.
Ed Whelan writes, "The number of current Trump appellate appointees who will be 55 or younger in 2033 will be 18, and only 6 of those will be 50 or younger." Here is my (approximate) list of judges who Trump circuit appointees who were born after 1977. The six judges in blue at the end are the only ones who would be under 50--none from Trump's first term.
- Andrew Oldham 1978
- Britt Grant 1978
- Patrick J. Bumatay 1978
- Matthew Schwartz 1978
- Eric E. Murphy 1979
- Daniel Bress 1979
- Steven Menashi 1979
- Robert J. Luck 1979
- Andrew L. Brasher 1981
- Emil Bove 1981
- Allison Jones Rushing 1982
- Justin R. Walker 1982
- Rebecca Taibleson 1983
- Joshua Dunlap 1983
- Eric Tung 1984
- Justin D. Smith 1985
- Whitney Hermandorfer 1987
- Benjamin M. Flowers 1987
Of course, this all assumes there is no Court "reform" and there will still be a Supreme Court to worry about in six years.
I would make one other observation. Several of the judges who are accused of "auditioning" will likely age out of the Supreme Court short list by 2033. Can we finally exit the audition trap? Let's treat each opinion they write as a reflection of their best judgment, and not some attempt to secure higher office.
The President Nominates Circuit Judges, Not Senators
Circuit seats belong to the circuit, and not to the state.
There has been a momentous shift in the relationship between the President and the Senate, and most people have missed it.
Let's start with the Eighth Circuit. The Trump Administration interviewed Justice Cody Hiland, but determined he was not up to the task of being a circuit judge, so they offered him a federal district court seat as a consolation prize. Hiland shot back at the White House Counsel and refused the seat. He even wanted to rub it in Trump's face. The White House made a stellar nomination with Judge Lee Rudofsky. Hiland then told an entire room of law students about his experience as a lesson that should be learned. But Hiland had a friend in a high place. Senator Boozman of Arkansas lobbied Senator Tillis of North Carolina and Senator Cornyn of Texas to block Judge Rudofsky.
Apparently there were some discussions between the President and Boozman, and the President folded. Maybe Trump determined that he needed as many judges confirmed before January, so the identity of the judge didn't matter. Maybe Trump didn't want to create more problems with his caucus. Maybe Trump just didn't care. Who knows? Trump withdrew Rudofsky and nominated Hiland. There is no guarantee that Hiland gets a hearing and makes it through the process. We are so late in the game. And frankly, I wouldn't blame some of the other conservative senators from the Eighth Circuit for putting Hiland through the paces at the hearing. It's not clear to me he'll be able to answer all the questions. But regardless of what happens, Senator Boozman won and President Trump lost.
Now, onto my home, the Fifth Circuit. It is painfully clear there was some sort of deal between Judge Southwick and Senator Wicker. In no universe would the White House have picked Todd Butler without that deal. I've yet to hear anyone provide me a single shred of evidence that he is conservative beyond saying "All southern lawyers are conservative. Plus he's a Christian." What about Nathan Johnson and James Talarico? Moreover, Southwick announced on September 29 that he would take Senior Status, making it virtually impossible for another nominee to be selected.
Yesterday, I watched Butler's confirmation hearing with interest. He received a few softballs from Senator Grassley, a very warm welcome from Senator Kennedy, and some surprisingly nice questions from Senator Booker about representing police officers. Butler did not seem to understand departmentalism and mis-cited Marbury v. Madison. His answers were not particularly articulate--roughly on par with his oral argument before the Supreme Court. There was no depth or curiosity conveyed. I actually think Butler tripped up on Senator Blumenthal's questions about January 6 and the election, but it didn't matter. He sailed through. Members of the conservative legal movement have raised doubts about Butler. But there were no tough questions asked by Senators Cruz, Lee, Hawley, Schmidt, or others. Only they know why they stayed out. Senator Wicker prevailed, and the President lost.
Then there is the bizarre situation in Oklahoma. Someone yesterday asked me if I knew what Senator Armstrong was doing. My response was, "Who is Senator Armstrong?" He is the temporary senator appointed to fill Senator Mullins's seat. As Mike Fragoso relays, Armstrong is blocking the nomination of Zach West to the District Court in Oklahoma. This is all about some sort of squabble between West and defeated-AG Drummond. Armstrong returned a blue slip but is now trying to take it back. That's not how things work. If Armstrong prevails here, the President will lose.
Circuit seats belong to the circuit, and not to the state. It bothers me that "home state" senators introduce circuit court nominees. That pageantry reinforces the wrong message. Hiland's seat does not belong to Arkansas and Butler's seat does not belong to Mississippi.
Unfortunately, Trump's surrender here has created a terrible precedent. Should the Republicans ever again return to power, I would hope this entire process is reconsidered. Circuit court nominees should be treated as "at large" seats. Senators can make recommendations, but they cannot dictate who is picked. Worse, judges (like Southwick) should not be allowed to make these deals. We should not tolerate incentive structure where motivated actors can control who represents an entire circuit. Maybe the better approach is to start consulting with all the Senators in a given circuit on possible picks, and then pick the best athlete.
School Board Can Order High School Teacher to Remove "Hate Has No Home Here" Rainbow Poster
From McIntyre v. Little Miami School Dist., decided Monday by Judge Matthew McFarland (S.D. Ohio) (appeal pending):
Plaintiff George McIntyre is a teacher at Little Miami High School, a school within Defendant Little Miami School District ("District"), where he teaches American History and Advanced Placement European History. McIntyre placed a poster in his classroom displaying the slogan "Hate Has No Home Here" ("Poster"), depicted below:
As shown above, the Poster features five hands holding hearts filled with distinct symbols, including the American flag, a peace sign, the rainbow pride flag, and the transgender pride flag. McIntyre hung up the Poster to remind his students to "treat all their classmates with mutual respect, regardless of personal opinions or beliefs." …
The District's "longstanding practice" has been to permit teachers to decorate their classrooms and display personal items. That latitude, however, is "defined by" the District's Little Miami School Board ("Board") policy.
Why Not Seek the Win/Win?
Religious Freedom and LGBTQ Rights
"Why not seek the win/win?" Justice Brett Kavanaugh posed that question to Colorado's attorney during last week's oral argument in St. Mary Catholic Parish v. Roy, a case involving Catholic preschools and the state's nondiscrimination requirements. His question raises a broader issue: Why is compromise so difficult in conflicts between religious freedom and LGBTQ rights?
Some background: Colorado operates a universal preschool program that provides public funding for children attending participating schools, including religious schools. But participating schools must agree not to discriminate on several grounds, including sexual orientation and gender identity. Catholic preschools argue that these requirements interfere with their religious mission, which includes teaching Catholic doctrine about marriage and requiring families to support that teaching. Colorado maintains that religious schools may participate, but must comply with the same nondiscrimination requirements as other schools.
During oral argument, Kavanaugh noted that approximately 2,000 preschools participate in Colorado's program, while only 34 Catholic preschools are involved in the dispute. The record does not identify any family headed by a same-sex couple that has sought admission for a child to one of these schools and been rejected. Why couldn't Colorado accommodate these schools while ensuring that other families had ample preschool options?
Colorado's attorney responded that equal access to publicly funded education requires more than the availability of alternative schools. The Catholic schools have a principled position as well. Why should they have to compromise their religious identity to participate in a generally available public program? They aren't asking Colorado to endorse Catholic doctrine, only to permit them to maintain their religious mission.
So why is compromise so elusive? St Mary illustrates a dynamic I wrote about in an article several years ago on Masterpiece Cakeshop, another Colorado religious freedom controversy. I argued that conflicts over religious freedom and LGBTQ rights reflect profound cultural divisions in American society. These controversies implicate competing understandings of identity, dignity, and equality.
For traditional religious believers, marriage and sexuality implicate fundamental religious convictions. Requiring religious schools to disregard those convictions in their admissions policies seems like an intrusion on religious autonomy. For supporters of LGBTQ rights, allowing publicly funded schools to exclude children because of their parents' relationships seems like a denial of equal dignity and citizenship. Each side regards the other's position as demanding a concession on something fundamental. Besides, each side may think it has compromised enough. Colorado doesn't prohibit religious instruction in funded schools; the schools don't ask Colorado to endorse their position on same-sex marriage.
This isn't the first time the Court has confronted such a problem. About a decade ago in Zubik v. Burwell, Justice Elena Kagan explored possible accommodations in a contraception mandate controversy, and the Court subsequently sought additional briefing on a compromise.
Kavanaugh's question makes practical sense. The difficulty is that the parties don't understand the controversy primarily in practical terms. Each sees fundamental principles at stake. The Court will resolve the legal dispute in St. Mary. But it cannot resolve the deeper social divisions that make compromises in these cases so difficult.
I discuss these questions in a new episode of Legal Spirits, available here.
Indirectly Inciting "Followers to Flood" Business "with False Reviews, Calls, and Emails" May Be Tortious
From Couture v. Noshirvan, decided Tuesday by Judge Kyle Dudek (M.D. Fla.):
[T]he story begins with a viral video of a parking-lot argument. Convinced that one of the women [Couture] had broken the law, Noshirvan set out to uncover her identity. He deployed a "sock puppet" social media account, posing as a concerned bystander to gain her trust. The ruse worked, and Couture unwittingly confirmed her involvement. Armed with that info, Noshirvan published a TikTok video broadcasting both Couture's name and her employer—Garramone Plastic Surgery.
Noshirvan's followers quickly took to the comments with ideas for how to retaliate. One suggested to "schedule appointments and not show up[.]" Another pitched calling Garramone Plastic Surgery to ask about Couture. And two users went so far as to agree that "we are now working on reviews for his business[.]" Just as the comments suggested, Garramone Plastic Surgery received emails, voicemails, and fictitious reviews….
Apparently having endured enough of this negative publicity, patients cancelled their scheduled procedures, a physician left the practice, and Garramone Plastic Surgery hired security personnel and installed an enhanced security system. Garramone Plastic Surgery now seeks to recover those damages….
The court held that Garramone's tortious interference claim against Noshirvan could go forward:
Prosecution for Alleged Threats to ICE Officer's Children (Sent to Officer's Wife) Can Go Forward
In U.S. v. Alexander, decided yesterday by Judge Paul Engelmayer (S.D.N.Y.), the criminal complaint (which yielded an indictment) alleges:
[O]n or about August 20, 2025, [Alexander] sent threatening electronic messages via a social media application … to the spouse ("Victim-1") of a U.S. Immigrations [sic] and Customs Enforcement ("ICE") deportation officer ("Officer-1"). The first message stated, "Are these your kids you had with your Nazi murder rapist husband. They will get it too. Never think that his whiteness will protect them." The second message consisted of a photograph of Victim-1's and Officer-1's children….
Defendant argued her speech was protected the First Amendment, but the court declined to dismiss the indictment:
