Judges relying on Bostock v. Clayton County to interpret statutes

The Supreme Court’s recent decision in Bostock v. Clayton County, interpreting the language “because of . . . sex” in the Civil Rights Act of 1964, has already yielded extensive debate and discussion, but particularly within politically conservative legal communities, as Justice Neil Gorsuch drafted a majority opinion over the dissenting opinions of Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh.

In part, there is a debate about what “textualism” means and what tools of statutory interpretation are or are not appropriate. In another part, there is a debate over the result, concerning a federal anti-discrimination statute and its application to cases involving sexual orientation and gender identity.

The en banc Fifth Circuit recently issued a brief opinion in Thomas v. Reeves, concluding that a dispute over legislative district maps in 2019 was moot. But the case spawned 50 pages of essentially dicta concerning the proper scope and application of 28 U.S.C. § 2284(a), or the scope of authority for three-judge courts to hear election law cases.

Of note—to me, at least—was some language in Judge Don Willett’s opinion, joined by Judges Jerry Smith, Jennifer Elrod, Kyle Duncan, and Kurt Engelhardt, on statutory interpretation. In doing so, Judge Willett’s opinion pulls quotations from Justice Gorsuch’s opinion in Bostock:

Just this week, the Supreme Court issued a landmark decision, holding that the 56-year-old Civil Rights Act forbids workplace discrimination on the basis of sexual orientation or gender identity. Specifically, the Court declared that “because of sex” encompasses “because of sexual orientation or gender identity.” The latter is not distinct from sex discrimination, but a form of it. Hearteningly, all nine Justices applied textual analysis to Title VII, as we do today with § 2284(a), but, just like us, they reached polar-opposite conclusions. In dissent, Justices Alito and Thomas charged the majority with “disregarding over 50 years of uniform judicial interpretation” and protested that “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.” The Bostock majority did not—indeed, could not—dispute those facts. It just deemed them immaterial, insisting that what matters (all that matters) is the literal text within a statute’s four corners—what it called “Title VII’s plain terms.”

A time traveler from 1964 would doubtless express astonishment that Congress had, unwittingly and unbeknownst to everyone, equated sex discrimination with sexual orientation discrimination (much less with gender identity discrimination)—and that it had done so by adopting a one-word amendment (inserting “sex”) from a representative who was cynically trying to scuttle the entire Civil Rights Act. But the Bostock majority focused on the “broad language” that Congress adopted, not on the ripple effects, however unforeseen, that flowed from it five decades later. The Court thus gave no interpretive weight to the fact that not a single drafter of Title VII in 1964 intended, noticed, or anticipated that “because of ... sex” would cover discrimination against homosexual or transgender persons. The Court remarked that resorting to “expected applications” or only those “foreseen at the time of enactment ... seeks to displace plain meaning of the law in favor of something lying beyond it.” Text is paramount—“only the words on the page constitute the law”—and if those words lead to “unexpected consequences,” so be it.

Settled practices matter not, nor does the “unanimous consensus” among the courts of appeals stretching across a half-century. As the Court put it: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” In the Bostock majority’s view, language codified by lawmakers is like language coded by programmers. A computer programmer may write faulty code, but the code will perform precisely as written, regardless of what the programmer anticipated. Courts, no less than computers, are bound by what was typed, and also by what was mistyped. What this means for Title VII: “When a new application emerges that is both unexpected and important,” said the Court, it is no answer to “have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.” We are bound by Bostock, whose ascetic interpretive rules for Civil Rights Act cases apply with equal force to Voting Rights Act cases.

Judge Costa’s opinion asserts virtually the same arguments as the Bostock dissenters, appealing to “venerable” understandings, “widely accepted meaning,” and “uniform caselaw.” He labels the State’s § 2284(a) argument “unprecedented,” invoking Justice Scalia’s colorful elephants-hiding-in-mouseholes aphorism. . . .

(Emphasis added.) It’s interesting—to me, at least—that Judge Willett, who was one of the original eleven names on then-candidate Donald Trump’s “list” of Supreme Court nominees—has quickly and readily embraced Justice Gorsuch’s approach in Bostock, and critiqued Judge Gregg Costa for adopting the approach (as he saw it) of Justices Thomas, Alito, and Kavanaugh.

It’s also notable, I think, to see who signed onto this interpretation—Trump-nominated Judges Duncan and Engelhardt signed onto it, but Judges James Ho and Andy Oldham (who wrote separately on a different issue) did not. Judge Edith Jones also did not join Judge Willett’s opinion. (Others joined Judge Gregg’s opinion, didn’t participate, or didn’t weigh in.)

Was Justice Gorsuch’s approach in Bostock right? We already have several members of the Fifth Circuit who think so. We’ll see whether Bostock’s approach holds sway over other judges in the years ahead.

Federal Judicial Clerkship Report of Recent Law School Graduates, 2020 Edition

I’ve updated my Federal judicial Report of Recent Law School Graduates, which is now available via SSRN. It tracks recent federal judicial clerkship hiring tends by school and by region, “elite” legal employment placement rates, and trends within the federal judiciary in hiring recent law school graduates. Most data is a three-year average for the Classes of 2017, 2018, and 2019 to smooth out any one-year outliers. Here’s one chart, judicial clerkship placement rate of recent graduates for these three classes: 31 schools had at least 5% placed into federal judicial clerkships.

View fullsize

For more charts, figures, and analysis, check out the entire report.

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?

A pair of faithless electors cases from 2016 have made their way to the Supreme Court. (Disclosure: I filed an amicus brief on behalf of myself in support of neither party here.) SCOTUSblog posts for Chiafalo v. Washington and Colorado Department of State v. Baca are here and here.

The Tenth Amendment argument unfolded in a curious way because of the Court’s new format of oral argument, where justices asked questions one by one.

The framing here is important before we get to the questions. In 1995, the Supreme Court decided U.S. Term Limits v. Thornton. That case held that states cannot add to the qualifications enumerated in the Constitution for members of Congress, because the Constitution fixes the qualifications and states have no power to add to them.

It was a 5-4 decision (written by Justice Stevens, joined by, among others, Justice Kennedy). Among the arguments rejected by the majority was that the Tenth Amendment empowered states to add qualifications. The majority, relying on the work of Justice Story and others, argued that the states had no reserved powers over federal elections, because there were no federal elections prior to the enactment of the Constitution. Instead, all state power over federal elections must come from an affirmative grant in the Constitution. I think that’s the right argument, as I lay out, in part, in Weaponizing the Ballot.

Justice Thomas dissented on behalf of four justices. He argued that the Tenth Amendment did include such a power. He lost, but still—he had four justices who agreed with him.

Fast forward to today. Justice Thomas asked Professor Larry Lessig, who represented petitioner Chiafalo in the first argument, about a reserved powers of the states claim. Washington did not raise a Tenth Amendment, Professor Lessig notes, but regardless the Constitution empowers electors to have certain discretion, which states cannot take away.

Questions when down the line until it reached Justice Kavanaugh, the most junior justice. He also raised the Tenth Amendment argument with Professor Lessig. Professor Lessig notes that Washington didn’t raise it, and there’s no tradition of state power to control presidential electors.

Now, this is a moment. Justice Kennedy had rejected the Tenth Amendment argument in Thornton. Justice Kavanaugh has replaced him and seemed receptive to the Tenth Amendment.

So, oral argument goes back to the top, to the Solicitor General of Washington. And on down the line until it comes to Justice Sotomayor, who takes the opportunity to push back on the Tenth Amendment claim. In a real-time argument, this would probably have happened when Justice Kavanaugh spoke. But she emphasized, “two of my colleagues” raised it, but Washington never did, and it seems a strange reserved power when states never knew they had it.

Then, on back to Colorado’s oral argument. Colorado did raise a Tenth Amendment claim. Justice Kagan pressed, “Why doesn’t Thornton foreclose that argument?”

So Justices Sotomayor and Kagan, in my view, were very much pushing back against the concerns raised by Justices Thomas and Kavanaugh (and, speaking with more speculation, specifically Justice Kavanaugh) on the Tenth Amendment.

Justice Gorsuch didn’t weigh in on the Tenth Amendment piece, but I want to highlight n.60 of a law review article he wrote in 1991 on term limits, expressly reserving addressing the Tenth Amendment question that would later be address in Thornton. Not that his former views would offer any insight, but, there, he did believe that term limits are a “manner” of holding elections and within state power. It’s unclear whether his views (or reserved views) from that day would carry over here.

A few other highlights from oral argument.

Limiting principles. It’s hard to overstate how many times the justices asked either side about limiting principles—do electors have unfettered discretion? Can states condition electoral appointments however they want? Both sides continued to exert fairly maximalist interpretations, in my view, rather than a claim more closely hewing to the facts presented. That said, it’s in part because the justices are looking for larger principles. But the frustration was palpable. Chief Justice Roberts asked about casting a vote for a giraffe, and Justice Thomas about a vote for Frodo Baggins. Pressing Washington about the limits of its power, claims like “the Equal Protection Clause” and the like were the boundaries. It’s hard to know if either side made much headway here.

Bribery. Professor Lessig made an important—and, I’m not sure entirely necessary—claim during argument, one that multiple justices later seized upon. If an elector was bribed, could that elector be removed? Only after a criminal conviction, Professor Lessig noted. That seemed a bridge too far for many members of the court, who seemed concerned that a bribed elector could still vote if the wheels of justice hadn’t moved swiftly enough.

Manufactured case. The justices at a few points wondered about Baca in particular as a manufactured case. Justice Breyer pressed both sides on the claim that Section 1983 did not allow a state to be sued, so why should a court hear the case? Both sides argued it was non-jurisdictional and how they wanted to strategically present the case. Justice Alito went a step farther, questioning Professor Lessig’s motivations in helping invite chaos in the 2016 presidential election.

Pragmatism. Many justices—particularly Justices Breyer, Alito, and Kavanaugh, but also in strains of Justices Kagan and Gorsuch—echoed practical concerns of two kinds. First, if a judicial decision would render significant uncertainty or unpredictability, perhaps that decision should not be issued—as Justice Kavanaugh put it, the “avoid chaos” theory of judging. Second, in the absence of very clear guidelines from the Constitution, perhaps the courts should just defer to the state judgment, which sometimes binds electors and sometimes doesn’t. Justice Kagan openly floated this possibility, as she seemed unconvinced by either textual or historical arguments, suggesting deference would be warranted.

In the end, there’s plenty of uncertainty in the two cases. And the justices have… six or seven weeks to sort it all out….

Washington Post significantly overstates Supreme Court's role in RNC v. DNC absentee ballot dispute

The headline at the Washington Post in the aftermath of the Wisconsin presidential primary election (and, among other elections, state supreme court election) is a bit curious: “Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after Election Day were counted, thanks to court decisions.” Why “unexpected”? Well, unexpected if you didn’t read what the lower courts were doing and only focused on certain opposition to the Supreme Court’s decision in RNC v. DNC.

A three-journalist by-line offer some of these takes:

But in the end, tens of thousands of mail ballots that arrived after the April 7 presidential primaries and spring elections were counted by local officials, a review by The Washington Post has found — the unexpected result of last-minute intervention by the U.S. Supreme Court.

…

The surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

…

Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order.

…

In Wisconsin, the Supreme Court’s ruling opened the door to a surge of valid absentee ballots that officials would have otherwise rejected under a state law requiring them to be received by Election Day.

…

The five conservative justices sided with the GOP, issuing an opinion on the eve of in-person voting that a blanket extension of the deadline would improperly allow voters to cast their ballots after April 7. Instead, they said ballots had to be postmarked by Election Day — effectively imposing a new standard.

…

When Republicans appealed to the Supreme Court, they challenged the decision of lower courts to extend the ballot deadline but did not explicitly seek a postmark deadline.

In bold, in the last portion of my excerpt, is a line that appears in the 45th paragraph of the piece.

What’s “surprising,” “unexamined,” and so on is because the obsessive focus was never on the lower courts’ proceedings, but instead on one aspect of the Supreme Court’s decision (highlighted by the dissenting justices, which cued how many journalists framed the litigation).

The Supreme Court concluded that an April 2 District Court order, effectively extending the election from April 7 to April 13 (refusing to count ballots until then, counting all ballots received until then, and so on), was too dramatic a departure too late in the election process. Four dissenting justices focused on disenfranchised voters—i.e., those who wanted to vote by mail but would have difficulty doing so by April 7. That’s what many journalists “examined.”

But the District Court did extend the deadline for receiving absentee ballots. Some states authorize jurisdictions to count ballots received days after Election Day, as long as they were postmarked by Election Day. Other states, like Wisconsin, require absentee ballots to arrive by Election Day to count. The District Court, as a part of the litigation, determine that the present circumstances required extending the absentee ballot deadline beyond Election Day, as long as it was postmarked by then. (It made other changes, too, like extending the deadline to require absentee ballots.)

Republicans expressly opted not to challenge this portion on appeal. Indeed, while the Washington Post’s 45th paragraph says that Republicans “did not explicitly seek a postmark deadline” (which, I think, means “did not seek to challenge the postmark deadline rules”), it’s actually more than tacit acquiescence: Republicans expressly did not appeal that part of the order. From its emergency application in the Supreme Court:

The relief that Applicants seek here is exceedingly modest. Applicants appreciate the challenges that the current pandemic creates for voters and election officials. They have not appealed other adjustments made by the district court, such as its extension of the deadlines to remotely register to vote and to request an absentee ballot. And although Applicants maintain that the issue of late-arriving ballots is premature and could be addressed when and only if the predicted mail delays actually materialize, Applicants only ask for a partial stay of the portion of the district court’s order, making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7. This would give the Respondents the relief they actually requested, respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.

Republicans affirmatively did not appeal this aspect of the District Court’s order. They wanted modest relief. They acknowledged remaining disputes on the facts but also acknowledged the tradeoffs of changing rules prior to the election (essentially, an inversion of the Purcell principle).

Additionally, the Washington Post is overstating it to say that the Supreme Court “effectively impos[ed] a new standard.” It did no such thing. The standard was one created by the District Court. And it was one the parties never litigated, from the very opening of the the Supreme Court’s opinion:

Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case.

One more line later in the opinion:

The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

In short, the Supreme Court never examined the extended absentee ballot receipt deadline. While it’s “important[]” that that issue was not appealed, that’s because it makes its per curiam decision not effectively extend Election Day to April 13, as it opens, a “narrow, technical” question.

It would be remarkable if the Supreme Court overturns a lower court decision that neither party challenges on appeal. To say that failure to do so is “effectively impos[ing] a new standard” is something of an overstatement.

Now, I don’t doubt that litigants will seize on the District Court’s action to seek opportunities—frankly, on thin records at the moment ahead of the November election—to claim that absentee ballots received after Election Day but postmarked by then should be counted in those states that require receipt by Election Day. The NCSL reports that 42 states and DC require mail-in ballots to be received by Election Day. So it would be a fairly significant departure for district courts to start revising election laws right now—particularly given that (1) legislatures have ample opportunity to address the matter ahead of November, and (2) there is deep uncertainty about what voting in November 2020 looks like. That said, there will undoubtedly be increased requests for vote-by-mail opportunities, increased snafus in trying to meet demand, and increased challenges in the Post Office trying to deliver ballots by Election Day. How individual district court judges handle these requests—how quickly, and with what kinds of appeals—remains deeply uncertain.

That said, I don’t think RNC v. DNC tells us very much, if anything, about these matters. It’s hardly a “game-changing precedent.” If anything, it indicates that, with a thin record, a decision close to the election, and a properly-framed appeal, the Supreme Court would find such a judicial order unwarranted. But we’ll see how the litigation unfolds in the months ahead.

Note: I’m fairly sloppy with my use of “absentee” and “vote-by-mail” in blog posts, often using them interchangeably, so please forgive me!

Supreme Court amicus brief in Chiafalo v. Washington

I’ve filed an amicus brief on behalf of myself in support of neither party in Chiafalo v. Washington and Colorado Department of State v. Baca. The PDF is here. (Other documents from the case are here.)

The brief makes four points. The first two are reasons federal courts should not hear the case. First, the Twelfth Amendment commits to Congress, not the federal courts, about when and how to count electoral votes. Congress counted the votes cast by Colorado’s and Washington’s electors, and courts should not second-guess Congress’s judgment. Second, Micheal Baca, Colorado’s elector who was replaced, failed to avail himself of political remedies—he never submitted his vote to Congress to consider or asked Congress to count his vote.

The third and fourth points address the scope of the Court’s decision if it reaches the merits. The Court must identify circumstances in which vacancies may arise in the meeting of electors and in which fines can be imposed, because such statutes have been on the books since the Founding. And the Court should not conclude that electors have a right to cast an anonymous ballot, because early state practices and the internal logic of the Twelfth Amendment do not require anonymous ballots.

Law schools and faculty roles mentoring students in judicial clerkships

There’s a lot to say about this testimony of Olivia Warren and her experience of sexual harassment during her clerkship with Judge Stephen Reinhardt. It is a difficult thing to write and to say, and I’m glad she did. Jacqueline Thomsen at the National Law Journal is reporting about a congressional hearing on judicial misconduct, and Ms. Warren’s testimony is a part of that.

But I wanted to focus on one part where she describes some of the ways she tried to report the harassment. Here’s an excerpt when she went to her alma mater:

My first attempt to formally report the harassment occurred on August 1, 2018, when I met with several members of the Harvard Law School administration, including the Dean. A friend and mentor who is a tenured Harvard Law faculty member helped arrange the meeting and encouraged me to communicate my concerns so that more accurate information and better support could be provided to current and future students. During the meeting, I described my experience clerking for Judge Reinhardt and the harassment to which I was subjected. I also shared my view that I thought there was a risk this was happening with other clerkships. I emphasized that students rarely hear about negative clerkship experiences for many of the systemic reasons that I have explained, and described how misled I felt by the institutional push to clerk. Nobody has communicated to me since that meeting what, if any, steps Harvard has taken to address the issues I raised.

Law schools and law faculty have critical roles in mentoring and advising students. This includes learning about students’ interests and preferences, providing them clear-eyed and realistic advice about costs and benefits of career choices, and ensuring that the best interests of the students are pursued.

These are, I think, all distinct concepts. One is to recognize that there’s not a one-sized-fits-all solution for student employment. Optimal outcomes may vary for many law students, but not all, and not all opportunities, even elite opportunities, are equally suitable for all students.

Another is to provide clear-eyed and realistic advice. Clear in that some language can mask negatives—Professor Ed Swaine noted that “intense” is often coded for unarticulated negatives in employment. Not unduly negative, because many jobs are hard work. But not rosy and unusually optimistic, either. Every job has costs and benefits. Providing students with those tradeoffs and helping them make a decision is an important role for faculty. And in some cases, it’s not just providing tradeoffs, but making a recommendation about a preferable path to take—or to avoid—for specific reasons.

Finally, it’s about pursuing the best interests of the student. It’s the result of the first two—thinking of students first and providing them with the best advice to ensure that their interests are sought. Singular focuses or “institutional push[es]” can cloud that. That’s undoubtedly true as we think of “ranking” law schools by the number of federal clerkships or “big law” placement. Determining whether students are satisfied with their employment outcomes may not help schools in the “rankings,” but it’s the moral imperative of legal educators. Clerkships, after all, may just be another job.

In another sense, these are “first world” problems for some law schools. Many law students at many law schools would appreciate any opportunity to get gainful legal employment, much less to choose among options, let alone elite options! But the imperative remains in advising students at all levels and in all capacities.

I’ve had the pleasure of serving as a clerkship advisor (and sometimes externship advisor) to many students over many years, and I hope to continue to do so in the past. I’ve tried to heed these principles, and I’ll offer a couple of practical examples.

One student was weighing two options—he’d received an offer from a “less” prestigious judge but hoped to have an opportunity from a “more” prestigious judge within the next few days, and he asked me what I thought. Of course, turning down an offer from a judge is deemed taboo among law school career development offices, and I noted that to him—then I followed up with, “But what’s important is your career, and we’re going to talk about that.” The “more” prestigious judge, in my view, would not provide the mentoring role that I thought would be better for his career for a host of reasons, knowing the reputation of both judges and the student’s career interests. Ultimately, he took my advice to heart and accepted the offer from the “less” prestigious judge. And at the end of the work experience? He gushed about his experience, told me the mentoring he’d received was invaluable, and deeply appreciated my frank advice.

Another student had accepted an offer for a judicial clerkship when a problem arose that would counsel toward withdrawing from the clerkship. She called me to figure out what to do. Once again, I noted that yes, it might be “bad form” to withdraw an offer from a clerkship, but, again, I emphasized we ought to talk through her career options—the problem, whether she ought to withdraw or take other steps, if she withdrew how to approach it, and so on. We had some lengthy conversations to figure out the best solutions, and all was resolved amicably.

Of course, I select a couple of good anecdotes with students where I’d built up good relationships! In others I could give more limited advice, or I referred them to other faculty who might give them better advice. And I haven’t had to experience horrible allegations of sexual assault from a clerk.

For students out there, seek out mentors who will provide you with this kind of advice. And importantly, seek them out early to help avoid making mistakes or entering problems. I’ve always been happy to help in whatever small way I can.

For law professors out there, encourage one another to think this way, and to advise students with this approach.

For me, I’m thinking about how to institutionalize some of this—training students before they head to clerkships, encouraging them to report concerns to us, and so on. It needs to be more than just faculty individually doing it. I only hope I can take my own advice and do a better job in the future.

Federal judicial clerks can be registered members of the Republican or Democratic Party, but not the Federalist Society or the American Constitution Society

That’s from a recent—and, in my view, hard to reconcile—interpretation from the Committee on Codes of Conduct in a recent guide to judiciary policy draft.

For a little background, see this Bloomberg piece; for a little commentary, see pieces by Gail Heriot, Josh Hammer, and Mark Pulliam.

I want to focus less on what judges may or may not do, and more about how the principles extend to their law clerks:

As we discussed in Advisory Opinion 116, the relevant portions of the Code of Conduct for Judicial Employees, although not identical to the Code of Conduct for United States Judges, lead to similar conclusions on issues regarding outside activities, particularly for law clerks and staff attorneys. As we have noted, law clerks are perceived by the public as members of a judge’s staff. Although we have not addressed the issue as frequently, the advice we have given law clerks on involvement in outside activities, particularly law-related activities, is consistent with the advice we give here. Accordingly, we also conclude that law clerk and staff attorney membership in the ACS or the Federalist Society is inconsistent with the Code of Conduct for Judicial Employees

Impermissible “law-related” activities are discussed in AO 116: “judicial participation in organizations that advocate particular causes rather than the general improvement of the law is prohibited.” That concern in particular arises when the activity “is generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.”

But there is a separate provision for “political activities,” in Canon 5. Covered employees (including judicial clerks) “may,” for instance, “register and vote in any primary or general election, including register as a member of a political party” (Advisory Op. 92, I.a, emphasis added), and “participate in caucuses in those states where caucuses substitute for primary elections” (Id., II.c.).

A judicial clerk, then, could, under existing advisory opinions, be a “member” of the Republican or Democratic Party. Indeed, a law clerk could attended the Iowa presidential caucuses next month and stand in a corner of the room to cast a vote for Bernie Sanders or Elizabeth Warren. (But, under the rules, they “may not . . . attempt[] to influence other voters”).

Admittedly, one might distinguish law-related organizations that are “generally viewed” as political from other law-related organizations. But it is hard to endorse membership in some overtly political organizations like political parties but prohibit membership in organizations that are not overtly political.

Then again, when the right to vote is at stake—as it would be in states with closed primaries (i.e., requiring membership in a party) or caucuses (with public appearances at party events)—perhaps the Committee is willing to be more flexible.

I don’t know what will arise from the draft, and maybe others think the distinctions are more important than I do. But it was unusual enough to highlight.

ICWA and me

Our family became foster parents in 2018 to a little girl (for privacy, I’ll call her Alice) who, at the time, was about to turn 2 years of age.

She’s nearly 3 and a half.

She’s still not adopted, despite our desire to adopt her.

It’s in no small part because of ICWA.

*

When a state terminates parental rights, several things must happen, including a number of prior hearings and notices given. One such notice involves the Indian Child Welfare Act (ICWA), a federal statute that places obligations on state government officials and state courts in child custody disputes if there is reason to believe the child may be of tribal descent.

Alice was born in late 2016 at 26 weeks and lived in the hospital for several months. I won’t chronicle her health troubles or complications here, except to note they were (and are) extensive.

Shortly after birth, the biological mother represented that there was Indian ancestry on her mother’s side, naming a small tribe. That triggered ICWA obligations on county officials to investigate and file notice with the tribe. If the tribe doesn’t respond after sufficient notice, the hearing proceeds.

The notice included some information about the mother’s ancestors, but not some other information. The tribe never responded to the notice.

This all predated our involvement in Alice’s life. She came into our home in 2018. In early 2019, parental rights were terminated. The parents appealed.

And on appeal (after a lengthy briefing process that took the better part of a year), the state court concluded that the county failed to comply with ICWA’s notice requirements (and with California’s requirements implementing ICWA). The case was sent back for further proceedings. Notice was re-issued. Hearings remain pending. Further appeals remain possible.

The county’s investigations have been challenging for a variety of reasons—the biological family’s ancestors were resistant to disclosing information. There was never evidence of tribal enrollment of any ancestral family member. It’s not clear that the investigation led to much additional information to notice the tribe.

My own (entirely amateur) research revealed that this particular tribe only enrolls members who were born to enrolled members and born on tribal reservation lands—Alice meets neither condition.

But ICWA requires county officials to investigate and provide notice so that the court can assess whether it is in the best interest of the child to be adopted in a tribal family or outside of it.

*

Intellectually, I understand ICWA. Given some dubious historical behavior surrounding some adoptions of children from tribal lands, providing additional guarantees to tribal relatives in adoption proceedings undoubtedly does great good for many children who would otherwise be separated from relatives and from their cultural heritage.

But in our case, like those of others, it is a deeply frustrating encounter, one that we wait patiently to navigate through.

Alice has been in state care since her birth. Ideally, disputes like hers are resolved before she turns 2 to provide her stability and security. It’s not clear that her case will be resolved before she’s 4.

From health care to child care, we navigate deep administrative challenges as a family each day that Alice is not legally adopted.

I write this not because I have strong thoughts on the litigation in Brackeen v. Bernhardt, the case makes its way through the Fifth Circuit on the constitutionality of ICWA. (It is interesting, however, how the case is characterized for certain constitutional issues, sometimes in ways that I don’t consider entirely accurate now that I’ve actually experienced it.)

Instead, I write it as someone witnessing the law in a decidedly non-lawyer-ly role of a foster parent. Despite being a licensed attorney and a teacher of law, I am pretty much an observer in this process, as things are largely outside our control.

ICWA as a statute—regardless of its constitutionality—is, I think, sadly not working as intended. I’m far from an expert in this area (again, a reason I’m not inclined to weigh in the constitutional issues in dispute). But simply directly experiencing the operation of a law like this offers me the small insight that there must be better ways—rules that can be better tailored to advance the best interests of children and Indian tribes, and rules that give children like Alice speedier placement into safe homes. Maybe those happen through improved administration and education (including improving counties’ abilities to more easily comply, or streamlining the notice process through tribes). Maybe they happen through Congress updating laws. I’m not sure. I can only experience some of the frustration and wait it out.

I have only seen a small piece of what the foster system looks like, and an even smaller piece of how Indian tribes are affected by the foster system. But I’m increasingly aware of how laws might affect children like Alice, and my awareness comes from this unique exposure in a non-legal setting.

I’ve assuredly had my eyes opened in other ways looking at our legal system as a relative outsider in the fostering process. And maybe I’ll write more about it in the years ahead.

"Lists" of potential Supreme Court nominees and judicial recusals

Senator Bernie Sanders recently stated that he’d consider making a “list” of potential Supreme Court nominees, which would imitate a move that then-candidate Donald Trump made during the 2016 presidential campaign. (Mr. Trump was specifically eyeing prospective nominees to fill the vacancy left by the late Justice Antonin Scalia; Mr. Sanders, presumably, would use the list for any future vacancy.)

Of course, listing names of sitting judges as potentially reaping the benefit of a Supreme Court nomination has consequences.

Justice David Stras of the Minnesota Supreme Court was on Mr. Trump’s list, and he recused himself when a ballot access issue concerning Mr. Trump arose in state court. (Justice Stras was later appointed to the Eighth Circuit.)

Likewise, when a recount issue arose in Michigan after the election, Chief Justice Robert Young (named to a second list of Mr. Trump’s potential nominees) and Justice Joan Larsen (later appointed to the Sixth Circuit) recused themselves—Chief Justice Young with a saltier recusal than Justice Larsen.

For more, see Professor Josh Blackman’s take back in 2016.

The recusals likely didn’t affect the outcome of either strand of election-related litigation (more on that in a moment). But it’s worth considering a couple of things.

First, to what extent should being named as a prospective Supreme Court nominee of a presidential candidate disqualify a sitting judge from hearing cases relating to the election of that candidate? The three recusals mentioned above occurred perhaps out of an abundance of caution than required by judicial ethics—perhaps.

Second, might naming sitting judges ultimately affect the course of litigation in the future in the event of recusals? We saw two cases where it didn’t ultimately affect the litigation—at least, we don’t think so. In Minnesota, the decision was unanimous. In Michigan, however, it was a divided decision in favor of the position advocated by Mr. Trump’s campaign—and one, conventional wisdom suggests, the recused justices would have been inclined to support. And it was a fairly low stakes decision involving a recount by Green Party candidate Jill Stein in a state with little likelihood of any recount changing the outcome.

But if high-profile sitting judges favored by Mr. Sanders (or other Democratic candidates) are named, and they are compelled to recuse in potentially higher-stakes election litigation, it might actually be a real problem in the 2020 election. All something to watch in the event any lists are released.

UPDATE: Helpful feedback also suggested I should distinguish between the situation in 2016 where there was an existing Supreme Court vacancy, and the situation in 2020 where there is only a potential Supreme Court vacancy. That might also affect whether judges feel obliged to recuse.