The Volokh Conspiracy

President Biden has now made his fiftieth round of judicial nominees. The two circuit nominees stand out.

First, in January 2024, Judge Jane Branstetter Stranch of the Sixth Circuit announced that she would take senior status on the confirmation of her successor. Now, Biden has nominated Karla M. Campbell to fill Stranch's seat. Campbell  spent her entire career at the Nashville firm formerly known as Branstetter, Stranch & Jennings, PLLC. If those names look familiar, it should. Jane Branstetter also started her career at that firm, where her father, Cecil D. Branstetter, was a founding partner. And Jane's husband, James Stranch, also worked at that firm. And wouldn't you know it, Campbell was Judge Stranch's first law clerk on the Court of Appeals. It is very much a family affair! Did Judge Stranch have any say in picking her replacement? We know that the President nominated Judge Gibbons's former law clerk to replace her. As a general rule, I would offer a rebuttable presumption: whenever a Judge is replaced by a former law clerk, there were some backroom dealings.

Second, in November 2023, Judge William Kayatta of the First Circuit announced his intention to take senior status on October 31, 2024 (just before the election!), or upon the confirmation of his successor, whichever happens sooner. Kayatta, who was confirmed in 2012, has only been in the seat for about twelve years--a fairly short tenure on the court of appeals. He was nominated at the not-so-young age of 58, so quickly hit the Rule of 80. Twelve years ago, Kayatta filled the Maine seat of Judge Kermit Lipez. Who did President Biden nominate to fill Kayatta's seat? Julia M. Lipez on the Maine Superior Court. And if that name sounds familiar, it should. Julia Lipez is the daughter of Kermit Lipez.

I imagine that any father would be very proud that his daughter was nominated as a federal judge. But did the father have any role to play in the selection of his child for the court? I've seen what parents do to get their kids into elite kindergardens. I imagine a similar treatment would apply to the federal judiciary. Obviously, it was Judge Kayatta's decision to take senior status. But I the longtime judge in the circuit probably had some sway, and could have suggested to Kayatta, and the powers that be in Maine, that his daughter would be a good fit. I would offer another similar rebuttable presumption: when a federal judge is appointed to a court on which a close relative sits, there were some backroom dealings. Another family affair.

It should be easy enough for the First Circuit to avoid putting the Lipezs on the same panel. And the senior-status Kermit would generally not sit on the en banc court, but if Kermit is on a panel for a case that goes en banc, he would be entitled to sit on the same court as his daughter. Then again, the First Circuit, which has zero active status Republican appointees, will probably never go en banc because it is about ideologically diverse as Senator Whitehouse's private beach club in Newport.

What about the federal nepotism statute, you might ask? Doesn't federal law prohibit appointing a father-and-daughter to the same federal court? The Office of Legal Counsel construed the statute to not apply to judicial nominations, to avoid any constitutional doubts of whether the statute was unconstitutional. Thus William A. Fletcher could serve on the Ninth Circuit along with his mother, Betty Fletcher. There have been other relatives on the same federal court. Learned Hand and his cousin Augustus Hand both served on the Second Circuit. Morris Arnold and Richard Arnold both served on the Eighth Circuit. Diana Motz serves on the Fourth Circuit, while her husband serves on the District of Maryland.

I am working on an article now to deal with judges who time their senior status to hand-pick their successors. It is unseemly, and I think it happens more often than we know.

Update: Judge Kermit Lipez will fully retire if his daughter is confirmed. He cited the statute, a concern that did not bother Judge Betty Fletcher:

Update: Judge Kermit Lipez plans to fully retire if the Senate confirms his daughter to the court, the 1st Circuit's circuit executive tells me, as a federal statute would bar Julia Lipez as a close relative from joining it otherwise. https://t.co/kbAlqJrpMq

— Nate Raymond (@nateraymond) May 23, 2024

I've learned a few things this past week about the Alitos. It seems that they have flag poles at their homes, and use flags to convey messages. I'm not sure if the Alitos have taken classes on flag semaphore. What those messages are, exactly, I do not know.

At the Alito home in Virginia, Mrs. Alito flew the flag upside down as part of some neighborly spat. Was this some sort of secret symbol that Martha-Ann was trying to stop the steal? There is no actual evidence of this, but countless news stories, and politicians, accepted this insinuation as obvious. I think it far more likely that she was trying to signal distress with her neighbors.

Last summer, at the Alito home in New Jersey, an "Appeal to Heaven" flag was flown. I had never heard of this Pine Tree Flag before. The flag traces its roots to George Washington's Continental Army in 1775. (Before you read Wikipedia, review the changes made in the past 24 hours.)

According to the New York Times, the flag can now be seen as "a symbol of support [1] for former President Donald J. Trump, [2] for a religious strand of the 'Stop the Steal' campaign and [3] for a push to remake American government in Christian terms." A bit of a hodgepodge to be sure. Did Mr. or Mrs. Alito choose to fly this flag to "stop the steal" nearly three years after the election? That seems a stretch. Again, there is no actual evidence of this, but countless news stories, and politicians, will accept this insinuation as obvious.

I think it is far more likely that the Alitos used the flag to convey some sort of message about religion. Exactly what, I'm not sure. But let's assume that Justice Alito personally chose to fly this flag. Here, at least, he did not blame his wife, so we might infer that he was aware of the flag. Much of the New York Times articles focuses on whether Alito should recuse from any Trump-related case. But I'm surprised they missed a more obvious angle: if Alito is trying to endorse some kind of Christian nationalism, shouldn't he recuse in all Free Exercise and Establishment Clause cases? Why limit the recusal attacks to the election cases?

If you'd like to go down that road, there is plenty of other evidence you can use. Justice Alito has publicly attended mass at various churches throughout the country and given speeches that lamented how religious liberty has come under siege. Forget cryptic symbols about an arboreal flag. Alito has been quite overt with his views on the topic.

I know it is gauche to talk about Justice Ginsburg, but I will. In August 2013, she made headlines by being the first Supreme Court Justice to preside at a same-sex wedding. In January 2015, the Supreme Court granted cert in Obergefell v. Hodges, and in June 2014 Justice Ginsburg joined a majority opinion that found a right to same-sex marriage somewhere in the penumbras of the Fourteenth Amendment. The act of marrying a same-sex couple, far more than a cryptic flag, signaled Justice Ginsburg's views on the topic. She did not recuse. It is true enough that Ginsburg apologized for her comments about President Trump, but she did not recuse in Trump-related cases that turned on his conduct during the election. (Mark Paoletta makes these points in WSJ.)

The Times article observed that today, the Alitos' flagpole to heaven was "bare." Maybe they can still whisper their thoughts in the recesses of their homes.

Along with dozens of Title VI administrative complaints filed with the Office of Civil Rights, at least fourteen colleges and universities are facing lawsuits over their handling of antisemitism on campus since October 7. I asked around, and no one seems to have a compiled a list of defendants with links to the complaints, so I've created one, which I will update as needed. Let me know if I have missed any. UPDATE: It turns out that there is a website keeping up with the litigation, though it's currently missing a few of the ones I have listed below.

Art Institute of Chicago

Carnegie Mellon

Cooper Union

Columbia University I

Columbia University II

Columbia University III

Haverford College

Harvard University I

Harvard University II 

MIT

New York University

Northwestern

Rutgers I

Rutgers II

University of California Berkeley

University of California Los Angeles

University of Pennsylvania

University of Virginia

New, 5/22: UC Davis

UPDATE: The success in these cases will obviously depend on the individual facts, the judges involved, and in some cases on state law claims that provide for particularly onerous damages. On the civil rights claims, in general I find the double standard in how universities enforce their rules to be the most persuasive claim. To win those claims, the plaintiffs don't have to get into the borderline between harassment and free speech, or whether the university has done the minimum necessary to combat harassment to meet Title VI. They only need to show, as seems pretty clear in most instances, that Jewish students who complain about antisemitism and their complaints are treated differently than complaints of discrimination by other groups, and/or that universities enforce their disciplinary rules differently with regard to antisemitic acts than with regard to other violations off school rules.

I have spoken to a half dozen or so attorneys involved in litigation on behalf of plaintiffs who experienced antisemitism on campus. Universally, their concern is not whether claims are strong enough to get past motions to dismiss and summary judgment. Rather, they regret that students on many campuses feel so intimidated that it's hard to persuade them to sign up as plaintiffs. That's a major reason why there are so many administrative complaints as opposed to lawsuits, the former don't require a named plaintiff.

Since 2016, the Roman Catholic Diocese of Albany has been challenging a New York law that mandates that insurance policies must cover abortions. The state courts upheld this mandate as a neutral law under Employment Division v. Smith. In June 2021, the Supreme Court decided Fulton. Justices Thomas, Alito, and Gorsuch would have overruled Smith. But Justices Barrett and Kavanaugh had some questions. After Fulton was decided Roman Catholic Diocese of Albany wound its way to the Court.

In November 2021, after several relists, the Court GVR'd the case in light of Fulton. Justices Thomas, Alito, and Gorsuch would have granted the petition. There was no reason for a GVR, since Fulton did not actually change Smith. The options were grant or deny. At the time, I wrote "It is very obvious to me that Justices Kavanaugh and Barrett have no interest in deciding another Free Exercise Clause case now–especially after the denial of review in the Maine case."

Since that GVR, the case moved its way through the state courts. In June 2022, the New York Appellate Division ruled that Fulton did not change the relevant standard, so the Diocese lost again. I observed:

And why did Fulton not change the relevant standard? Because in Fulton, Justices Barrett and Kavanaugh declined to overrule Employment Division v. Smith, a decision that required courts to deferentially review laws that burden religion. Even when Justices Barrett and Kavanaugh joined a conservative majority opinion, they tempered its reach.

Today, nearly two years later, the case was decided by the New York Court of Appeals (the highest court in New York). And, no surprise, the court ruled against the Diocese. The court held that since Fulton did not overrule Smith, the prior New York precedent decided under Smith still stands.

When the Court GVRs a case, it may wipe the issue off a Justice's plate, and conscience. But the matter continues in the lower courts. Lawyers on both sides dutifully litigate the issue. Judges and clerks have to write opinions. The Diocese continues to operate under a sword of Damocles. Yet, throughout this entire process, the ending is preordained. In 2021, there was no reason to GVR the Albany case because it was decided under Smith, a precedent that Justices Kavanaugh and Barrett did not overrule. The GVR wasted everyone's time.

And here we are. Three years after Fulton and thirty months after the GVR, the case is ready for review. No doubt the Diocese will file a cert petition. It will probably come up for conference later this year. The Court could grant the case, and add it to its ever-shrinking docket for argument in February. If so, there would be a nearly four year gap between the GVR and the decision in June 2025. Or the Justices could stew on the petition for a while and grant in February, kicking the case to the OT 2025 term, with a decision by June 2026, five full years after Fulton. Or, the Court could deny cert altogether.

If after all of these deliberations, we are still left with three Justices dissenting from certiorari, what will we have to show for it? The Court should have put the case out of its misery in 2021 rather than wasting everyone's time.

I realize the symbol of the Court is a turtle--slow, deliberate, and careful. But these sorts of GVRs are not like the turtle. They are like the ostrich--sticking your head in the sand and hoping a problem goes away. But it never does.

For what it's worth, there is another case in the pipeline that would allow the Court to revisit whether to overrule Smith. New York compels Amish schoolchildren, living in remote communities, to receive vaccinations that conflict with their sincerely held religious beliefs and Amish way of life. The District Court ruled against the Amish plaintiffs in Miller v. McDonald, relying on Smith. The case was recently briefed before the Second Circuit. The plaintiffs squarely preserved the question of whether Smith should be overruled. There is a similar case pending up for conference next month from Connecticut involving K-12 education, though I tend to think the Amish case may be a better vehicle.