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Emily Bazelon assembles the numbers to show that the four vacancies on the D.C. Circuit lead to too many Republican-dominated panels:

The D.C. Circuit had four open slots from 2006 (out of 11) until last month, when the Senate finally confirmed an Obama’s nominee, Sri Srinivasan, by a vote of 97–0. That came after the long and bitter filibuster of Obama’s first pick, Caitlin Halligan. With Srinivasan on the bench, there are four judges chosen by Democratic presidents, four chosen by Republicans, and six more senior judges who also hear cases. Five of those senior judges were chosen by Republicans (in fact, 15 of the past 19 vacancies have been filled by GOP presidents, according to Nan Aron of the liberal court-watching group the Alliance for Justice). The D.C. Circuit hears cases in panels of three. Because the senior judges pick up a sizable share of the workload, “almost 80 percent of the panels in 2013 were composed of exclusively or a majority of Republicans,” Moshe Marvit writes in Dissent. “The results of this partisan court are not surprising. Many of the D.C. Circuit’s recent decisions have skewed heavily to the right.”

Emily said out loud what the President obviously won’t, but is at the heart of his announcement to appoint three new judges to the court. Instead, the President justifies his appointments, because the court is short-staffed.

There are 11 seats on the D.C. Circuit Court.  When I first took office, there were two vacancies.  Since then, two more judges have retired.  That means there are four vacancies that needed to be filled.  And by February of this year, more than one-third of the seats on the nation’s second highest court were empty.  I mean, imagine if a third of the seats on the highest court — the Supreme Court — were empty.  We would rightly consider that a judicial crisis.  If we want to ensure a fair and functioning judiciary, our courts cannot be short-staffed.

This is not the case. The D.C. Circuit is notoriously underworked. The caseload, in contrast with all other courts of appeals, is dwindling. The problem isn’t that the court is lacking judges. The problem is that the existing judges, most of whom were nominated by Republican Presidents, are voting in ways that progressives do not like. Emily’s column makes that point abundantly clear.

Look no further than the Canning decision, which was argued, fittingly enough, by Miguel Estrada, himself filibustered back in the day. At the time, Jay Carney called the decision “unprecedented“:

“The decision is novel and unprecedented,” Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.”

The President hints at that problem with these comments:

The D.C. Circuit is known as the second highest court in the country, and there’s a good reason for that.  The judges on the D.C. Circuit routinely have the final say on a broad range of cases involving everything from national security to environmental policy; from questions of campaign finance to workers’ rights.  In other words, the court’s decisions impact almost every aspect of our lives.

Now there’s nothing wrong with taking this position. Presidents appoint judges who reflect their view of the law. I think that’s an important part of any presidency (something Obama did not focus much on in his first term, perhaps due to spending so much time on the ACA). But, let’s be real (as I noted in this post). Emily’s comments accurately reflect why the President wants to get these three judges confirmed to the D.C. Circuit, and is using the strategy of nominating three at once.

Now, I do not agree with efforts to move three seats from the D.C. Circuit to other courts. That smacks of politics that should be separate from our courts. Also, the three nominees should all be easily confirmed. Though most progressive groups support them, I can’t imagine they are enthused the same way conservatives were with nominees like Janice Rogers Brown or Brett Kavanaugh (maybe not after Obamacare).

Update:  A report from Politico makes a similar point:

To hear President Barack Obama tell it, the motives underlying his latest partisan fight have nothing to do with politics.

But there’s no question that the ideology of the courts, and of one particularly powerful court, are at the heart of the dispute.

…

Despite the president’s complaints about politics infecting the confirmation process, it’s beyond debate that his liberal supporters are eager to see more of his judges on the bench. Liberal activists are confident the addition of Obama appointees to the mix would temper the rulings of a court that, say some on the left, has been on a kind of conservative ideological crusade.

However, when asked Tuesday if concern about the direction of the influential court played into Obama’s decision to offer up a slate of three D.C. Circuit nominees, White House Press Secretary Jay Carney insisted that the driving factor was the largely logistical matter of making sure the court was firing on all cylinders.

“The president believes that this court, which is commonly referred to as the second highest court in the land, should be fully staffed,” Carney said.

 

It’s no secret that students are always irked at professor who take too long to grade. But usually, students keep these comments to themselves. Not with Twitter. A student in Adam Winkler’s ConLaw class at UCLA is asking him to grade faster if he/she goes out and buys a copy of Adam’s book, Gunfight (my review here). This is hilarious.

Winkler took it in stride.

Now, let me get back to grading 🙂 (120/150 done).

H/T @Greg51

Update: Thanks for the link ATL. I will be done grading all exams tonight.

Yesterday on a whim, I blogged that NJ Governor Chris Christie should appoint Justice Alito as the next Senator from the Garden State. I was familiar with the incompatibility clause, and knew that members of the Court had served in the executive branch, but for some reason, I didn’t think a Justice of the Supreme Court held an “office under the United States.” I had a few reasons, albeit not-too-fleshed out.

First, I reasoned that because the Supreme Court is created by the Constitution, in contrast with the inferior courts, and it could not be said that Alito’s office was under the authority of the United States. This position is organic law, straight from the Constitution, not from any statute of the United States.

Second, a Justice’s tenure (good behavior) is distinctly different from all other officers of the United States, who served some kind of fixed term.

Third, the appointments clause separates the “Judges of the Supreme Court” from “all other Officers of the United States,” suggesting that they are different things:

by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

Although, one argument going the other direction, as pointed out by the ever-resourceful Garrett Epps, is that  Article III refers to the position a Justice holds as an “office”–though not an “office under the United States” (unclear if this distinction makes any difference).

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour

Fourth, I noted yesterday an early opinion by John Jay (who had served in the Executive Branch while on the Court), as recited by Joseph Story, suggesting that a judge on a lower court was not an “inferior officer” to purposes of the appointment clause.

So, with the answer less than clear, I did what everyone should do to resolve obscure, but fascinating questions about the meaning of “office under the United States.” I asked Seth Barrett Tillman. Within a matter of hours, Seth provided me with a five-page reply, which he has posted on SSRN. Remarkable.

Seth offers a number of ways to distinguish an “Officer under the United States” from a holder of a “Public trust,” including the manner in which the person obtains that position (election v. appointment), how the position is created (not by statute), and whether the person is subject to supervision in their normal course of duties. Seth finds that under two of these tests, a Justice would not be an officer of the United States for purposes of the incompatibility clause.

I don’t know that I’m persuaded by his arguments, or even my own, and think the idea of a Justice serving in the Senate is ridiculous (sitting in judgment of laws one passesd is absurd), but, the answer isn’t as open and shut as I previously thought.

Does anyone else have any thoughts?

The glamorized vision of the internet as a free, unregulated medium has not been true for some time, due in large part to two fronts. One front is the fact that leading intermediaries, such as Google or Facebook, have great control over what we see. The other front is governments in many countries that limit what their people can see. The latter problem is not a problem we face in the United States, at least directly. However, I fully expect (and indeed am already seeing) attempts within the United States to use the regulatory arm of the government in efforts to minimize the ability of the intermediaries to control what is is that we see. FTC suits against Google for controlling search results are early previews of things to come. As well, efforts to clamp down on 3D printing through limiting access to files may become a necessity, as the Department of Homeland Security has already said it is “impossible” to contain 3D printed firearms.

When these attempts to regulate arrive, corporations like Facebook or Google (have and) will shield their efforts within the First Amendment. We saw that last year with Eugene Volokh’s white paper for Google that raised the First Amendment as a defense.

Earlier this year, Google commissioned Eugene Volokh to author a white paper laying out the position that information generated by algorithms, namely search results, are entitled to First Amendment protections. The Times picked up the story. Then, Google also commissioned a paper from Robert Bork (!) and Gregory Sidak arguing that Google’s policies are consistent with antitrust rules. These moves are a preemptive response to pending investigations by the FTC that Google’s search results violate antitrust rules. In other words, advancing defenses based on the First Amendment defense, as well as antitrust law.

Tim Wu was not persuaded. This wil remain a fertile ground for scholarship as these arguments become much more salient.

In addition to Andrew Tutt’s article that I blogged about last year, there are a few leading papers that explore the topic of Data and the First Amendment.

First, Jane Bambauer’s Is Data Speech in the Stanford Law Review.

Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other, more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what “speech” is.

This Article makes two bold and overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government’s motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with knowledge, that regulation should draw First Amendment scrutiny.

In combination, these theories show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform, and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to the privacy debates, data is speech.

Second, Stuart Benjamin writes Algorithms and Speech in the Pennsylvania Law Review.

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance—algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt a limiting conception of the First Amendment, but any nonarbitrary exclusion of algorithm-based decisions would require major changes in the Court’s jurisprudence. I believe that First Amendment coverage of algorithm-based decisions is too small a step to justify such changes. But insofar as we are concerned about the expansiveness of First Amendment coverage, we may want to limit it in two areas of genuine uncertainty: editorial decisions that are neither obvious nor communicated to the reader, and laws that single out speakers but do not regulate their speech. Even with those limitations, however, an enormous and growing amount of activity will be subject to heightened scrutiny absent a fundamental reorientation of First Amendment jurisprudence.

Third, Tim Wu writes Machine Speech, also in the Pennsylvania Law Review.

I will write more about these important works shortly.

 

In my random research to determine whether anyone has ever said that a Supreme Court justice holds an “office under the United States,” and is thus subject to the incompatibility clause, I came across this question from Story’s commentaries that I don’t think I have ever considered.

Article II provides an alternate route for the appointment of “inferior Officers”:

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments

In Section 1593 of the Commentaries, Story queries if the judges of the inferior courts are inferior officers:

Whether the Judges of the inferior. courts of the United Slates are such inferior officers, as the constitution contemplates to be within the power of congress, to prescribe the mode of appointment of so as to vest it in the president alone, or in the courts of law, or in the heads of departments, is a point, upon which no solemn judgment has ever been had. The practical construction has uniformly been, that they are not such inferior officers. And no act of congress prescribes the mode of their appointment. See the American Jurist for October, 1830, vol. 4, art. V.p. 298.

I found that edition of American Jurist on Google books–and guess what! It’s a citation to a letter that Chief Justice John Jay and the Associate Justices wrote to President George Washington! Washington had penned a letter to the Court on 4/3/1790.

The note suggests that the power to appoint Article III judges cannot be vested by Congress.

 

That would be really anomalous if the courts of law could receive the power from congress to appoint other judges.