Complete Deck Flashcards
1
Q
Core message
A
I’ve been on the bench for 12 years. The best evidence of the type of District Judge I will be is how I have been for the last 12 years as a Magistrate Judge.
2
Q
Judicial Philosophy
A
I consider the text first. I look for Supreme Court precedent and any 9th Circuit precedent. I look to the methods of interpretation those court used. And in cases like Heller and Crawford, they used originalism and I follow the higher courts to know which canons of construction or which methods to use.
In my view, trial judges play an important but limited role, so in my 12 years on the bench, I have approached the cases with an open mind. I have sought to decide them based upon the evidence presented, keeping in mind the importance of judicial restraint and without attempting to answer broader questions. To the extent I have a judicial philosophy, this is it.
I am reluctant to adopt any particular label for my approach, because the ones commonly used can mean different things to different people.
3
Q
Statutory Construction
A
I begin with the text. If it is clear, my job is done. If it is not, I would consider statutory context, including analogous contexts, then the canons of construction, and, if necessary, to the legislative history.
4
Q
Role of Advocate v. Role of a Neutral
A
A judge must set aside the kind of partisanship and the loyalty to client that we were duty bound to have as an advocate. The judge must instead apply neutrally and evenhandedly the precedents of the U.S. Supreme Court to the case at hand.
5
Q
Why is diversity important?
A
Diversity enhances the credibility of the court. It tells people also that the courts are for all people and not just for some people. It says that we, as a country, “We judge ourselves,” because we are all part of it and no one is excluded.
Astronaut Sally Ride said, “You can’t be what you can’t see.” Diversity serves an important role-modeling function. It also increases discussions between people
6
Q
Do we need more judges?
A
I can’t speak to the system as a whole, but in my 12 years on the bench in the CAED, I’ve seen judges become exhausted, to become sick, and, ultimately, to leave the court, because the massive workload isn’t sustainable. For the last 20 years, the caseload in Eastern California has been 213% of the national average. For more than 40 years, CAED has received no new judgeships, despite the population explosion. So, yes, we need more judges.
7
Q
Why is the jury system important?
A
The Founders of our Country viewed juries as an essential protector of liberty. A jury stands between the accused, who is faced with the loss of their liberty, and the government, which seeks to take that liberty.
8
Q
When originalism does not apply?
A
Questions involving cruel and unusual punishment, searches and seizure of information held on a cell phone are situations when the court does not use originalism.
9
Q
What test will a judge use to determine whether a right exists that is not explicitly stated in the Constitution?
A
Courts look to the Due Process clause, according to Wash. v. Glucksberg to consider whether the claimed right was “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
10
Q
Should courts consider international law when interpreting the Constitution?
A
In general, I would look to the text and structure of the Constitution, rather than international law. There may be circumstances in which it plays a role, but, at most, it would be merely informative, rather than dispositive.
11
Q
Legislative intent
A
The best evidence of what a legislature intended is what it wrote in the statute. If the text is clear and unambiguous, courts are duty-bound to apply it as written.
12
Q
Judicial activism
A
In my view, this is when a judge interjects the judge’s personal view into decision-making rather than adhering to the law as written.
13
Q
Living Constitution
A
The Constitution has survived for more than 230 years, and it is indisputably the supreme law of the land. This suggests to me that it will survive for as long as our nation exists not because it has a life unto its own, but because we, the American people, have an abiding and unwavering commitment to its fundamental dictates. (Consider the preamble.)
14
Q
Agree with a case?
A
Brown v. Board of Education, Bolling v. Sharpe, Loving v. VA, Marburg v. Madison
In the context of this process, I join with numerous other nominees who agree that it would be inappropriate to comment on the correctness of any precedent, except I will faithfully follow them.
For a trial judge, all precedents must be followed, and any personal feelings are irrelevant.
15
Q
Quasi-suspect classes
A
The Court has identified, for example, sex as a quasi-suspect class and subjects laws impinging on these classes to intermediate scrutiny.
16
Q
Strict scrutiny
A
The governmental interest must be compelling and the law at issue must be narrowly tailored to further the interest.
17
Q
Intermediate scrutiny
A
The governmental interest must be important and the law at issue must be substantially related toward furthering the interest.
18
Q
Suspect classes
A
- Race
- Religion
- National origin
- Alienage (non-citizenship)
A suspect class has:
- An immutable trait
- Has suffered historical discrimination
- A discrete and insular minority (politically powerless)
19
Q
Rational basis
A
The law will be upheld if it is rationally related to a legitimate governmental interest.
20
Q
Separation of powers
A
Ensures that governmental power is not concentrated in any one person or any one branch as a check on the government’s power over the people
21
Q
Importance of federalism
A
Federalism helps to further individual liberty in the sense of additional protection. State law may provide greater protection of individual liberty for the people of the state. For example, it ensures that the government entities, which have most day-to-day impact on people, can pass laws, which protect them in the way the people want. In doing so, it ensures more direct accountability and responsiveness.
22
Q
Tenth Amendment
A
All power not delegated to the federal government is reserved to the state.
23
Q
Ninth Amendment
A
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people.”
Laurence Tribe believed that it was not so much as a source of rights as a rule of interpretation. Until the Supreme Court confronts a case raising only 9th Amendment claims, I can’t say that I know for certain what it means.
24
Q
Younger abstention
A
Under Younger, Federal courts must abstain from deciding a cases if:
- There is an ongoing state proceeding;
- the claim raises important state interests; and
- The state proceedings provide an adequate opportunity to raise the federal constitutional claims.
25
Pullman abstention
"Questions of state law Pulls the court off the federal constitutional questions of the case"
Federal courts should avoid issues of federal constitutional questions when the case may be decided on questions of state law.
26
Erie Doctrine
When the court sits in diversity, it applies federal procedural law and the state substantive law.
27
Is the federal judicial system systemically racist?
When I think of “systemic racism,” I think it concerns a pervasive and ongoing practice of intentional racist conduct.
I think we all now understand that certain laws have had a disparate impact on people of color, for example, the sentencing disparities for crack and powder cocaine. I know that this Committee, specifically Chairman Durbin and Ranking Member Grassley, have worked very hard to address these disparities because we all agree that sentences should not depend upon the color of a person’s skin.
28
What is Justice?
Justice occurs when everyone is treated equally.
29
McCullough v. Maryland
The federal government may establish a federal bank, and the states may not tax it. Marshall interpreted the Necessary and Proper Clause to mean that Congress could employ appropriate and legitimate means to further the objective covered by the enumerated powers.
30
Test to overturn precedent
Must have “strong grounds” to do so and may consider (QWDeFactR):
1. the quality of the reasoning of the precedent;
2. Whether the standards established by the precedent are unworkable;
3. Whether the precedent departs from other decisions on similar constitutional questions;
4. Whether the underlying facts have undermined the authoritativeness; and
5. Whether there has been reliance on the precedent
(Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31 (2018))
31
Standards for nationwide injunction
FRCP 65 governs injunctions.
In Califano v. Yamasaki, the Court held that "the scope of injunctive relief is dictated by the extent of the violation" rather that the geographical location. In Lewis v. Casey, the Court held that only where the constitutional violation has been shown to be "systematic" should the corresponding injunctive relief be given that scope. Justice Thomas has criticized the practice. Justice Gorsuch noted last year in Dep't of Homeland Security v. New York, that the Court had not yet addressed "the underlying equitable and constitutional questions raised" by national injunctions.
The Ninth Circuit has held that though “there is no bar against . . . nationwide relief in federal district court or circuit court,” but such broad relief must be “necessary to give prevailing parties the relief to which they are entitled. (California v. Azar, 911 F.3d 558, 582–84 (9th Cir. 2018))
“[N]ationwide injunctive relief may be inappropriate where a regulatory challenge involves important or difficult questions of law, which might benefit from development in different factual contexts and in multiple decisions by the various courts of appeals.” California v. Azar, 911 F.3d 558, 582–84 (9th Cir. 2018)
32
Penumbras
A penumbra is a right tangential to or implicated by another right that is explicit in the bill of rights.
Griswold v Connecticut (1965) found that the right of privacy was implicated by other explicit rights in the Bill of Rights.
I believe the Court has used this word only in one case, Griswold v. Connecticut.
33
Fundamental Rights
In general, they are rights that are so deeply rooted in our Nation's history and traditions." They are found in the Bill of Rights or under the Due Process Clause of the 14th Amendment and include, for example:
1. marriage;
2. privacy;
3. interstate travel;
4. having custody of own children;
34
Independent and adequate state grounds
When the petition for review to the US. Sup. Ct rests upon both federal and state grounds the Court lacks jurisdiction if:
1. the state grounds is adequate to decide the case; and
2. the state grounds is independent of federal law.
35
Affirmative action
Racial quotas are unconstitutional. The question of the extent to which race can be considered in college admissions, is an active question.
36
D.C. v. Heller
and
McDonald v. City of Chicago
Individuals have the right to have an operational gun. This is a "core" purpose of the 2nd Amendment.
37
Burwell v. Hobby Lobby
Religious Freedom Restoration Act (of 1993) applies to for-profit corporations, so they are protected from the government’s attempts to burden the exercise of religion unless it uses the least restrictive means, and the government interest is compelling. The Court concluded that ACA’s mandate to provide health care coverage for employees, which includes contraception, is not the least restrictive means of achieving the governmental interest that people are provide health care.
38
Espinoza v. Montana Dept of Revenue
The Free Exercise Clause protects those practicing their religions from government action, which imposes disabilities on the basis of religious status. Any such law that does this must be narrowly tailored to achieve a compelling interest. (In this case, the state sought to prohibit recipients of state provided scholarships, from using them at private, religious schools.)
39
Our Lady of Guadalupe School v. Morrissey-Berru
The government may not intrude on the autonomy of religious organizations with respect to their management decisions essential to the institution’s central mission, including who plays key roles. This forms the “ministerial” exception to courts adjudicating employment claims based upon federal law, first announced in Hosanna Tabor.
40
Masterpiece Cakeshop v. Colorado Civil Rights Commission
The government must evaluate neutrally the religious justification for the refusal to provide a service for homosexual people, which constitute” a form of art through which the faithful may honor God. Failure to do so violates the Free Exercise Clause of the First Amendment.
41
Is discrimination based upon sex a violation of Title VII?
In Bostock v Clayton County, the Court held that Title VII protects against discrimination based upon “sex,” which includes sexual orientation and gender identity
42
Planned Parenthood v. Casey
The law may not place an “undue burden” (which is a substantial obstacle) on a woman seeking an abortion before the fetus attains viability.
(At issue was a 24-hour waiting period, consent of one parent if a minor, and notice to the husband, if the woman was married. The requirement of notice to the husband was stricken, but the other two requirements were upheld.)
The Court discussed that the fact that there has been significant reliance on Roe.
43
June Medical Services v. Russo
Whole Woman’s Health v. Hellerstedt
Courts must conduct an independent review of the legislative findings given in support of an abortion-related statute and weigh the law’s “asserted benefits against the burdens.”
44
Whole Woman’s Health v. Jackson
TX law prohibits an abortion after 6 weeks if the doctor can detect a heartbeat and delegates enforcement of the law to the citizens—thus, insulating the State from responsibility for implementing and enforcing the law. The Sup Ct denied injunctive relief, finding there was no showing of irreparable harm, because there was no evidence the defendant would seek to enforce the law
45
Religious Land Use and Institutionalized Persons Act (RLUIPA)
No land use regulation may impose a substantial burden on the exercise of religion exercise of a person, and a prison or jail cannot substantially burden a prisoner’s exercise of religion unless there is a compelling interest that cannot be achieved through any other less restrictive means.
46
Batson Challenge
Use of peremptory challenges in a racially discriminatory manner, violates the Equal Protection Clause.
1. The objecting party must make out a prima facie case of discrimination based upon the totality of the relevant facts. If there is an inference that discrimination has occurred, it is enough. Akin to probable cause or "some evidence" finding;
2. If the prima facie case is made, the burden of production shifts to the other party to come forward with a nondiscriminatory explanation the strike (i.e., gender or race-neutral reason).
3. Court must then decide whether the objecting party has proved purposeful discrimination.
47
Beyond a reasonable doubt
Evidence that leaves the jury firmly convinced the defendant is guilty.
48
Hypothetical questions
If confronted with these facts, I would fairly and impartially evaluate them. I would survey the law in the area and determine whether there is precedent on point or legal authority which guides my analysis.
49
If confronted with a quote and asked opinion
“I don’t know the context of that quote, but I would follow precedent in the area, as I have in the cases I have handled while on the bench”
50
Implicit bias
As I understand it, our human brains use unconscious assumptions to assist us to make quick decisions. This is our brains noticing patterns and making generalizations so that it can work more efficiently, more quickly.
It is incumbent upon judges to slow down and think about the decision being made and to consider whether it is based upon a past experience or whether it is based upon the specific person or circumstance before them.
Having unconscious assumptions doesn’t mean that anyone is discriminatory, it is simply a function of how our brains work.
51
Powerpoint slide re: “Can comply with both”
The slide should have been worded differently, but it was attempting to make a difficult topic more easily understood.
The discussion I had with the group was that federal law and state law both prohibited the use of marijuana. In this way, the state law did not mandate anything that the federal law prohibited. This was the rationale of the courts interpreting the validity of the state law at the time.
The discussion also included the fact that the state law immunity was no defense to charges for possession of marijuana brought in federal court.
52
Feelings about marijuana use
My loyalty is to the law. As long as Congress says that the use of marijuana or any other drug is prohibited, that is the law I will apply.
For the last 12 years, I have faithfully enforced Congress' laws related to illegal drugs and I will continue to do so. On dozens of occasions, I have found defendants guilty for possession of marijuana and other drugs and sentenced them. I have never dismissed these types of charges unless the government urged me to do so.
53
Opinion in Vazquez v. Anderson - Sexual harassment of inmates
The facts were quite troubling. In the order, I noted that the conduct was "absolutely unacceptable." I was required, however, to consider whether the conduct rose to the level of a constitutional violation. In doing so, I relied upon the precedent from the Ninth Circuit, which had held repeatedly that acts significantly more egregious than those alleged in the case before me, did not state a constitutional violation.
On appeal, the Ninth Circuit clarified the standard for determining cases in this context. Consequently, if I am confronted with such a case in the future, I will apply the 9th Circuit precedent.
54
Daubert standard
It is designed to assess whether the expert’s scientific testimony is based on scientifically valid reasoning:
1. Can it be tested?
2. Has it been peer reviewed/published?
3. What is its known or potential error rate?
4. Are there standards controlling its operation? and
5. Does it have widespread acceptance within a relevant scientific community?
55
Jurisdiction – Criminal Law
Any crime that impacts interstate commerce, it occurs over state, country or territorial lines or impacts our nation, it is investigated by federal law enforcement.
56
Privileges and Immunities
Restrains the power of states to discriminate against out-of-state citizens as to fundamental rights
57
Supremacy Clause
In general, it establishes that the US Constitution and federal law take precedence over state law.
58
28 USC 2254 – Habeas
May be used by a person in custody pursuant to a state court judgment to challenge the fact of the conviction or the length of the sentence.
59
28 USC 2241 - Habeas
May be used by a person who is not being held pursuant to a state court judgment, such as a pretrial detainee, civil detainee, or a federal inmate, to challenge the confinement.
60
Enumerated Powers of Congress
1. To tax and spend for the general welfare and common defense
2. To borrow money
3. To regulate commerce with states, other nations and Native American tribes
4. Establish citizenship naturalization laws and bankruptcy laws
5. Coin money
6. Power to punish counterfeiters of money and stocks
7. Power to establish post offices and roads
8. Power to regulate patents and copyrights
9. Power to establish lower courts from the Supreme Court
10. Power to establish piracy laws of the sea
11. To declare war
12. Power to raise and support Army
13. Provide and maintain the Navy
14. Make rules for the Government and regulation of naval forces
15. Power to call a militia (National Guard today)
16. Power of regulating a militia
17. Power to govern the District of Columbia and properties for federal government purposes
18. Authority to create laws that are necessary and proper to carry out the laws of the land (Necessary and Proper Clause)
61
What are the primary sources of a federal district court's jurisdiction?
(Fun Divas Sing Right)
28 USC 1331 (Federal question)
28 USC 1332 (DIVersity)
28 USC 1367 (Supplemental)
28 USC 1441 (Removal).
62
Ex Parte Young, 209 US 123 (1908)
Holds that sovereign immunity does not protect state official who act unconstitutionally.
63
Apprendi v. New Jersey, 530 U.S. 466 (2000) (Stevens)
Held that the Sixth Amendment right to a jury trial, incorporated against the states through the Fourteenth Amendment, prohibited judges from enhancing criminal sentences beyond statutory maximum based on facts other than those decided by the jury beyond a reasonable doubt.
64
When does a court have personal jurisdiction over a defendant?
1. Defendant waives personal jurisdiction
2. Defendant is served with process while in the state (Pennoyer v. Neff)
3. Defendant consents to jurisdiction, such as in a contract or
4. The coercive exercise of jurisdiction complies with the Due Process Clause.
General jurisdiction--jurisdiction over a case unconnected to the defendant's case-specific actions in the state--is generally reserved to residents of a State, but also extends to instances where a defendant's contacts with the state are "so continuous and systematic as to render it essentially at home in the forum state."
Specific jurisdiction may be exercised when the defendant has "minimum contacts" with the forum state such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
65
What is the political question doctrine?
First recognized by Baker v. Carr (1962) (Brennan), the doctrine holds that a federal court should not decide the issue when:
1. there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department; or
2. a lack of judicially discoverable and manageable standards for resolving it," Zivitofsky v. Clinton (2012)(Kennedy).
(In Zivitofsky, the plaintiff sought to have "Jerusalem, Israel" listed on his passport as his place of birth. Because it raised sensitive issues bearing on the US's attempt to facilitate a peace process between Israel and Palestine, the court dismissed the case on "political question" grounds.
66
What are the four abstention doctrines?
Please Call Your Boyfriend
| Pullman, Colorado River, Younger, Burford
67
What is Pullman abstention?
Abstention is appropriate where a case "presenting a federal constitutional issue" "might be mooted or presented in a different posture by a state court determination of pertinent state law."
68
What is Burford abstention?
Burford allows a federal court to dismiss a case only if:
The case presents:
1. "difficult questions of state law"
2. raising substantial policy questions
3. which are important beyond the parties " or
1. The federal decision would disrupt state efforts to establish a coherent policy about the matter of substantial public concern.
69
What is Colorado River abstention?
Colorado River= Exceptional CONCURRENT
Abstention is appropriate in "exceptional circumstances" due to the presence of a concurrent state proceeding for reasons of wise judicial administration.
70
What is the Rule 12(b)(6) standard?
Pursuant to Ashcroft v. Iqbal (2009) (Kennedy), a complaint must be dismissed unless the non-conclusory facts it alleged, if taken as true, present a prima facie claim for relief. The complaint must contain sufficient nonconclusory factual allegations to support a reasonable inference that the conduct occurred.
71
What are the two primary mechanisms by which an individual can seek relief against government actors for violations of their constitutional rights?
42 USC 1983 allows claims against state officers.
Bivens v. Six Unknown Fed. Narcotics Agents (1971)(Brennen) allows a private right of action against a federal officer who violates the claimant's Fourth Amendment rights
72
Which case held that the line item veto is unconstitutional?
Clinton v. New York (1998) (Stevens) held that the line item veto violated the Presentment Clause of the United States Constitution because it impermissibly gave the President of the United States the power to unilaterally amend or repeal parts of statutes that had been duly passed by the United States Congress.
73
What is a legislative veto? And is it constitutional?
A legislative veto occurs when a legislative chamber purports to invalidate executive action with a resolution. In INS v. Chadha (1983)(CJ Burger), SCOTUS held that Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch (agencies) because such a veto is inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.
74
Can Congress limit the President's ability to remove inferior officers who determine policy and enforce laws?
No. In Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd. (2010)(Roberts), SCOTUS held that such congressional limitations intrude upon the President's obligation to "take Care that the Laws be Faithfully executed."
75
First Amendment?
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof:
1. Freedom of speech
2. Freedom of peaceable assembly
3. Freedom to petition the government
4. Freedom of press
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
76
Second Amendment?
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
77
Third Amendment?
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
78
Fourth Amendment?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
79
Fifth Amendment?
No self-incrimination;
No double jeopardy;
No deprivation of life, liberty, or property without due process of law;
No taking of private property for public use without just compensation.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
80
Sixth Amendment?
Speedy trial by jury; notice of crime of which charged; right to confront witnesses; right to counsel
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
81
Seventh Amendment?
In suits over $20 there is a right to a jury trial and facts found by the jury can't be reexamined except as allowed by common law.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
82
Eighth Amendment?
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
83
Ninth Amendment?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
84
Tenth Amendment?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Federal government violates this when it commandeers the states.
85
Eleventh Amendment?
State sovereign immunity - forbids actions involving damages payable from the state treasury. Does not protect local governments and does not cover actions seeking to enjoin state officials from violating federal law.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
86
Twelfth Amendment?
Electoral college - one vote designated for the president, the other for the vice president.
87
Thirteenth Amendment?
Abolished slavery
88
Fourteenth Amendment?
Section 1:
All persons born in the US are citizens.
State's can't make laws abridging the "privileges or immunities" of citizens of other states;
A person cannot be deprived of "life, liberty, or property, without due process of law";
The people in the country are entitled to "equal protection of the laws.
Section 2: Apportions representation based on number of citizens, blacks included.
Section 3: Bars those who aided the South from serving in the federal government.
Section 4: deals with debt incurred as result of the war.
Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
89
Fifteenth Amendment
Extends right to vote to the freed slaves.
90
Sixteenth Amendment?
Income tax
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
91
Seventeenth Amendment?
Senators are elected by the people, not state legislatures.
The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, it allows the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.
92
Eighteenth Amendment?
Passed in 1917 and repealed by 21st Amendment in 1933
93
19th Amendment?
Women's right to vote.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.
94
Twenty Sixth Amendment?
Everyone over 18 can vote.
95
What are Congress' primary enumerated powers?
The Next Best Money Is RAD, No Problem
Tax, Naturalization, Bankruptcy, Money, Interstate commerce, Roads, Armies, Declare war, Necessary and Proper laws,
The power to tax and spend, to make laws on naturalization and bankruptcy, to coin money, to establish roads and post offices, to declare war, to raise and support armies, to make all laws that are necessary and proper for carrying into execution its powers, and to regulate interstate commerce.
96
Describe Congress' power to regulate interstate commerce.
CIT(E) with the E being an aggregate substantially affecting interstate commerce.
1. the channels of interstate commerce
2. the instrumentalities of interstate commerce
3. persons or things in interstate commerce,
4. economic activities that in the aggregate substantially affect interstate commerce.
It does not extend to intrastate non-economic activity where regulation of such activity is not "an essential part of a larger regulation of economic activity" (Lopez and Morrison), nor to intrastate inactivity (NFIB v. Sebelius).
97
What is the dormant commerce clause?
It is not found in the constitution, but has nonetheless been invoked to:
1. invalidate state laws that discriminate against interstate commerce, or
2. impose excessive burdens on other states
(under the rationale that such laws were "one of the chief evils that led to the adoption of the constitution." Comptroller of Treasury of Maryland v. Wynne (2015) (Alito)).
Inferred from Congress's power to regulate interstate commerce - the power to (1) regulate and (2) limit state/local regulation
Pike v. Bruce Church (1970)'s balancing test governs laws that merely burden, and says that the burden must be weighed against the local benefits.
98
What framework typically governs challenges to the exercise of presidential power?
The tripartite framework established by Justice Jackson's concurring opinion in the Steel Seizure cases (1952):
(1) when the President acts pursuant to an express or implied authorization by Congress, "the strongest of presumptions and the widest of latitudes of judicial interpretation attaches to his action;
(2) when the President acts in the absence of congressional authorization or prohibition, "there is a zone of twilight in which the President and Congress may have concurrent authority, or in which its distribution is uncertain";
(3) when the President acts contrary to the express or implied will of Congress, his power is "at its lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional powers of Congress over the matter."
99
What are the key features of the APA?
Requires agencies wishing to create rules governing private conduct and having the force and effect of law to:
1. give the public notice of proposed rules,
2. give them an opportunity to comment on the rule, and,
3. only then to finalize the rule through publication in the Federal Register.
100
What is the case that established the doctrine of inevitable discovery as an exception to the exclusionary rule?
Nix v. Williams, 467 US 431 (1984) (Burger)
(Because, inevitably, the body would have been found by the volunteer search teams, there was no need to exclude the un-Mirandized statements of the defendant indicating where the body was located.)
101
When is it okay for Congress to delegate rule making power to administrative agencies?
According to Whitman v. American Trucking Assn. (2001) (Scalia), only where Congress provides an "intelligible principle" to guide the agency.
102
When can a court set aside an agency interpretation under the APA?
1. When it's arb/capricious;
2. The agency has acted contrary to law; OR
3. The agency acted in a manner that cannot be attributed to agency expertise.
Generally, only where the agency has acted "arbitrarily and capriciously," which means that the agency RIFE:
1. Relied on factors Congress didn't intend it to consider,
2. acted so Implausibly that its action cannot be ascribed to mere difference in views of the product of agency expertise,
3. Failed to consider an important part of the problem, or offered an explanation of its decision that runs
4. counter to the Evidence before the agency.
103
What is Chevron deference?
The Chevron 2-step!
(1) ambiguity
(2) reasonableness
It's the doctrine whereby courts defer to administrative agencies. It comes from Chevron v. NRDC (1984) (Stevens), and more precisely says that when a statute is ambiguous, indicating congressional intent to leave the matter to the agency, a court will uphold agency action so long as it is reasonable.
104
What is Booker?
United States v. Booker, 543 U.S. 220 (2005)
The United States Supreme Court held that the mandatory sentencing guidelines violated defendants’ Sixth Amendment right to a trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury’s finding alone would support. A different majority concluded that the constitutional deficiency could be remedied if the guidelines were treated as discretionary or advisory rather than mandatory.
105
What did Ring v. Arizona hold?
RING in the death by jury
Ring v. Arizona, 536 U.S. 584 (2002) (Ginsburg), held that held that the Sixth Amendment requires a jury to find the aggravating factors necessary for imposing the death penalty. Ring overruled a portion of Walton v. Arizona, 497 U.S. 639 (1990), that had previously rejected this contention.
106
What case held that indigent criminal defendants have a right to counsel?
Gideon v. Wainwright, 372 U.S. 335 (1963) (Black), held that states are required under the Sixth Amendment to the U.S. Constitution to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys.
The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.
107
What pleadings are allowed?
1. Complaint
2. Answer to complaint
3. Answer to a counterclaim
4. Answer to a crossclaim
5. Third party complaint
6. Answer to third party complaint
7. Reply to an answer
FRCP 7(a)
108
What federal law creates the federal sentencing system?
The Sentencing Reform Act of 1984 (SRA), 18 USC 3551 et seq.
109
What seven factors does the SRA say that a judge must consider when sentencing?
No Person Kicks Red Pigeons At Rest 18 USC 3553:
1. the Nature and circumstances of the offense and the history and characteristics of the defendant;
2. the need for the sentence imposed to reflect the four primary Purposes of sentencing, i.e., retribution, deterrence, incapacitation, and rehabilitation;
3. the Kinds of sentence available;
4. the sentencing Range provided by the guidelines;
5. any relevant "Policy statements" promulgated by the Sentencing Commission;
6. the need to Avoid sentencing disparities; and
7. the need to provide RESTtitution to victims.
110
What has SCOTUS described as the "starting point and the initial benchmark" in the sentencing process?
The guideline range.
111
When must a presentence report be provided to the prosecution and defense?
At least 35 days before the sentencing date.
Objections must be made at least 14 days prior to the sentencing date.
112
What is the difference between a "departure" from the sentencing guidelines, and a "variance" from the sentencing guidelines?
A “departure” whether upward or downward from the calculated sentence is for reasons contained in the Guidelines.
A “variance” is where the change from the calculated sentence is due to an exercise of the court's discretion under § 3553(a).
Reviewed on appeal for procedural reasonableness (de novo on legal Qs and clear error on facts) and substantive reasonableness (rebuttable presumption of reasonableness for sentences within the guidelines range)
113
Do normal evidentiary rules apply at a sentencing hearing?
No. Neither the FRE nor constitutional evidentiary rules (e.g., the Confrontation Clause) apply.
114
What is the Rooker-Feldman doctrine
Federal courts—except for the Supreme Court—should not sit in direct review of state court decision unless Congress has specifically authorized such relief.
115
What must happen after the court orally pronounces sentence?
The court must complete two documents:
(1) the "Judgment in a Criminal Case," which is filed as part of the public case, and
(2) a "Statement of Reasons," which is part of the sealed record and which provides information about whether the sentence was within the guideline range, and if not, the reasons for the departure.
The court must also advise the defendant of his right to appeal, and his right to counsel for that appeal.
116
What two types of sentence are available by statute?
Probation or prison.
117
What is the maximum allowable term of probation?
5 years
118
What are the three primary types of financial penalties a court can impose?
Special assessments, restitution, fines
119
Is parole available?
No. The SRA abolished parole, and replaced it with "supervised release," which, unlike parole, is served in addition to the term of imprisonment.
120
What is the three-step sentencing process required by Booker?
1. Calculate the sentencing range,
2. consider policy statements or commentary in the guidelines (in deciding whether to depart from the range), then
3. consider all of the 18 USC 3553 factors to decide the sentence to impose, including whether a departure or variance is appropriate.
121
What is the cornerstone of the federal sentencing system?
"Relevant conduct" encompasses a defendant's "real offense conduct" before, during, and after the commission of the offense. It is the conduct that is relevant to determining the applicable offense level.
Relevant conduct must be found by a preponderance of the evidence.
122
In a civil matter, when must the judge issue a scheduling order?
According to Rule 16, within 60 days after the appearance of a defendant, or within 90 days after the complaint has been served on a defendant.
123
What dates must the court set at the Rule 16 conference?
DAMP
1. Deadlines for discovery
2. Amending the pleadings
3. Motions deadlines
4. joining other Parties
The judge may also modify the times for Rule 26 disclosures and set dates for the pretrial conference and trial.
124
What rule of civil procedure generally governs discovery?
Rule 26
125
Who conducts voir dire?
Rule 47 allows either the judge or the lawyers to perform void dire. Most judges do it themselves.
126
What is an Allen charge?
An instruction given to a deadlocked jury to encourage further efforts to reach a verdict.
An Allen Charge has also been referred to as a “nitroglycerin charge,” “the third degree instruction” and a “shotgun instruction.”
On appeal, Allen charges can sometimes be overturned if they are determined to have had an “impermissibly coercive” effect on the jury.
For example, judges are generally not supposed to tell juries that they “must” reach a verdict.
Also, judges have been advised not to give an Allen charge after inquiring into the numerical division of the jury, because holdout jurors could interpret the charge as directed specifically at them.
127
When must the Rule 26 meet and confer occur?
According to Rule 26(f), at least 21 days before the Rule 16 conference or the scheduling order is due (60 days after the appearance of a defendant, or 90 days after the complaint has been served on a defendant).
The parties must also prepare a joint discovery plan report and file it with the court within 14 days of the conference.
128
What may be obtained by discovery?
According to Rule 26(b)(1), "any non-privileged matter that is relevant to any party's claim or defense," so long as it appears "reasonably calculated to lead to the discovery of admissible evidence."
129
What case holds that a criminal defendant has a right to waive assistance of counsel and proceed pro se?
Faretta v. California (1975) (Stewart).
The defendant must knowingly and willingly waive the right to counsel.
The right is not absolute; a court may revoke it in certain circumstances, such as when it is untimely, and when the pro se litigant is obstructionist or dilatory.
130
Can a criminal defendant waive his right to a jury trial?
Yes. According to FRCrP 23(a), the waiver must be in writing with the approval of the court and consent of the government. The waiver must also be knowing and intelligent and voluntary.
131
Can a criminal case be tried with less than twelve jurors?
Yes. According to FRCrP 23(b), the parties can stipulate in writing, with the approval of the court, to any number less that twelve. The waiver must be knowing and voluntary.
132
What is a peremptory challenge?
A striking of a juror without cause.
FRCRrP 24(b) bases the number of peremptory strikes available to each party on the seriousness of the offense.
1. Capital case = 20 strikes
2. Non-capital, felony case, 6 for USA, 10 for the defense
3. Misdemeanors = 3 per side
133
Can a peremptory challenge be used by prosecutors to exclude a juror based on gender?
No. J.E.B. v. Alabama (1994) (Blackmun).
134
Are parties entitled to all discovery that is relevant to the claims and defenses?
No. The judge has a duty to ensure that discovery is proportional to the needs of the case.
Under Rule 26(b)(2)(C), the court must limit:
1. unreasonably cumulative or duplicative discovery, and,
2. discovery the burdens of which outweigh its likely benefit.
135
What is a "non-waiver order" or a "claw-back order" re: privileges?
Under FRE 502(d), an order--which does not require party agreement, that precludes the assertion of a waiver claim based on production in discovery. It reduces the need for pre-production review.
136
Is it permissible for a party to use summaries of exhibits at trial?
Yes. FRE 1006 provides that a "proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place."
137
How many jurors must there be in a civil trial?
FRCP 48. No less than 6, and no more than 12.
The verdict must be unanimous unless the parties stipulate otherwise.
After a verdict is returned, if a party wants the jury polled, the court must, but can also do it on its own initiative.
138
Must voluntary dismissal be granted?
FRCP 41(a)(2): no. Only by court order, on terms that the court considers proper.
139
Can jurors be excluded based upon their race in a civil trial?
No. Edmonson v. Leesville Concrete Co. (1991) (Kennedy).
140
What rule governs the procedure for the submission and consideration of request for specific jury instructions?
FRCP 51(b)
141
What judicial canon governs the avoiding the appearance of impartiality?
Canon 2
142
Can judges engage in political activities?
No. Canon 5 of the Code of Conduct for United States Judges says that a judge should refrain from political activity.
143
What is Canon 1 of the Code of Conduct for United States Judges?
"An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."
144
What is the case that articulates the "adequate and independent state law grounds" doctrine of appellate jurisdiction?
Michigan v. Long (1983) (O'Connor)
145
Are DUI checkpoints constitutional?
Yes. In Michigan Dept. of State Police v. Sitz (1990) (Rehnquist), the Court held that there was a "substantial government interest" and DUI checkpoints were rationally related to that goal.
The impact on drivers (delay) was negligible, and that the brief questioning to gain "reasonable suspicion" also had a negligible impact on Fourth Amendment right from unreasonable search
146
What is Griswold v. Connecticut?
1965 case invalidating the Connecticut law banning contraceptives on the grounds that it violated the "right to marital privacy", establishing the basis for the right to privacy with respect to intimate practices.
This and other cases view the right to privacy as a right to "protect[ion] from governmental intrusion." Authored by William O. Douglas.
147
Eisenstadt v. Baird (1972)?
Is a United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples (Brennan)
148
What duties may a magistrate judge perform?
All phases of a civil case, with the written consent of the parties. 28 USC 636; FRCP 73.
Pretrial matters, such as the Rule 16 conference and non dispositive pretrial matters.
A magistrate may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as summary judgment motions.
A magistrate can conduct voir dire, if the parties consent, and any other duties not inconsistent with the constitution or statute.
149
What are the differences between civil and criminal contempt?
The purpose of criminal contempt is to punish a person for a past act of contempt--it has the characteristics of a crime and thus is cloaked with the safeguards that accompany criminal prosecutions. 18 USC 401; Fed. R. Crim. P. 42
Civil contempt, on the other hand, is intended to compel someone to do or not to do a certain act. Other than 28 USC 1826, which applies only to recalcitrant witnesses, there is no statute or Fed. R. Crim. P. that applies to civil contempt. Thus, a judge should follow the portions of 18 USC 401 and Fed. R. Crim. P. 42 that translate to civil contempt proceedings.
150
Which FRCP governs injunctions and restraining orders?
FRCP 65.
151
Which rule governs grand juries?
Fed. R. Crim. P. 6.
A grand jury must contain between 16 and 23 people. Typically, 4 to 6 alternates are also chosen. The names of all jurors are kept confidential.
152
What is the oath required of a judge?
28 USC 453: "I, ___, do solemnly swear (or affirm) that I will
administer justice without respect to persons, and
do equal right to the poor and to the rich, and
that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States.
153
Canon 2C?
Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired. Canon 2C refers to the current practices of the organization.
154
Which FRE governs the form of objections?
In general, Rule 611 provides that leading questions should not be allowed in direct examination except as to preliminary issues, and, in general, they may be used in cross-examination
155
Which FRE governs the authentication of evidence?
FRE 901. "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."
156
What is FRE 404?
"Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait."
157
When is character evidence admissible?
FRE 405:
When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.
On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
158
Which article of the FRE governs opinions and expert witnesses?
Article VII. FREs 701-706.
159
What is FRE 602?
Requires that a witness have personal knowledge.
160
Which FRE governs admission of pleas?
FRE 410. Withdrawn guilty pleas and no-contest pleas are generally not admissible as evidence. Two exceptions:
in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together;
or in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
161
Which FRE governs evidence of habit?
FRE 406. Evidence of habit is admissible to show that on a particular occasion a person or organization acted in accordance with their habit.
162
Which FRE generally prohibits hearsay?
FRE 802.
Hearsay is not admissible unless any of the following provides otherwise:
a federal statute;
these rules;
other rules prescribed by the Supreme Court.
163
What is hearsay?
FRE 801: “Hearsay” means a statement that:
the declarant does not make while testifying at the current trial or hearing; and
a party offers in evidence to prove the truth of the matter asserted in the statement.
164
What does Article I of the FRE govern?
General provisions (101-106)
165
Which article of the FRE governs judicial notice?
Article II (201)
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
is generally known within the trial court’s territorial jurisdiction; or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court: may take judicial notice on its own; or must take judicial notice if a party requests it and the court is supplied with the necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
166
What does article III of the FRE govern?
Presumptions in civil cases (301-302)
Rule 301 – Presumptions in Civil Cases Generally. In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
Rule 302 – Applying State Law to Presumptions in Civil Cases. In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.
167
Which article of the FRE governs relevance?
Article IV (401-415)
Rule 401. Test for Relevant Evidence
Rule 402. General Admissibility of Relevant Evidence
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
Rule 404. Character Evidence; Crimes or Other Acts
Rule 405. Methods of Proving Character
Rule 406. Habit; Routine Practice
Rule 407. Subsequent Remedial Measures
Rule 408. Compromise Offers and Negotiations
Rule 409. Offers to Pay Medical and Similar Expenses
Rule 410. Pleas, Plea Discussions, and Related Statements
Rule 411. Liability Insurance
Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition
Rule 413. Similar Crimes in Sexual-Assault Cases
Rule 414. Similar Crimes in Child-Molestation Cases
Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
168
Which article of the FRE addresses procedures regarding witnesses?
Article VI (601-615)
Rule 601. Competency to Testify in General
Rule 602. Need for Personal Knowledge
Rule 603. Oath or Affirmation to Testify Truthfully
Rule 604. Interpreter
Rule 605. Judge’s Competency as a Witness
Rule 606. Juror’s Competency as a Witness
Rule 607. Who May Impeach a Witness
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
Rule 609. Impeachment by Evidence of a Criminal Conviction
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
Rule 612. Writing Used to Refresh a Witness’s Memory
Rule 613. Witness’s Prior Statement
Rule 614. Court’s Calling or Examining a Witness
Rule 615. Excluding Witnesses
169
What does article V of the FRE govern?
Privileges (501-502)
Rule 501 – Privilege in General. The common law governs a claim of privilege unless federal law or a Supreme Court rule provides otherwise. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
Rule 502 – Attorney-Client Privilege and Work Product; Limitations on Waiver
170
Which article of the FRE governs opinions and expert testimony?
Article VII (701-706)
171
What does article VIII of the FRE govern?
Hearsay (801-807)
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
Rule 802. The Rule Against Hearsay
Rule 803. Exceptions to the Rule Against Hearsay–Regardless of Whether the Declarant Is Available as a Witness
Rule 804. Exceptions to the Rule Against Hearsay–When the Declarant Is Unavailable as a Witness
Rule 805. Hearsay Within Hearsay
Rule 806. Attacking and Supporting the Declarant’s Credibility
Rule 807. Residual Exception
172
Which article of the FRE governs authentication and identification?
Article IX (901-903)
Rule 901. Authenticating or Identifying Evidence
Rule 902. Evidence That Is Self-Authenticating
Rule 903. Subscribing Witness’s Testimony
173
What does Article X of the FRE govern?
Contents of Writings, Recordings, and Photographs (1001-1008)
Rule 1001. Definitions That Apply to This Article
Rule 1002. Requirement of the Original
Rule 1003. Admissibility of Duplicates
Rule 1004. Admissibility of Other Evidence of Content
Rule 1005. Copies of Public Records to Prove Content
Rule 1006. Summaries to Prove Content
Rule 1007. Testimony or Statement of a Party to Prove Content
Rule 1008. Functions of the Court and Jury
174
Where are the FRE's miscellaneous rules located?
Article XI (1101-1103)
175
What is the Erie doctrine?
A federal court sitting in diversity jurisdiction (or in general, when hearing state law claims in contexts like supplemental jurisdiction or adversarial proceedings in bankruptcy) must apply state substantive law to resolve claims under state law and federal procedural law
176
When is evidence relevant?
FRE 401: Evidence is relevant when:
| it has any tendency to make a material fact more or less probable
177
What is FRE 403?
Rule 403 says that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
178
Which FRE governs character evidence?
FRE 404. Rule 404 prohibits use of evidence of a person's character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait.
179
Is evidence of subsequent remedial measure admissible?
FRE 407. Generally no, at least not to prove negligence, culpable conduct, product defect, or a need for warning. It can be used for other purposes, however, such as to prove who owned the property.
180
Which rule governs the admissibility of compromise offers and negotiations?
FRE 408. Such evidence is generally not admissible to prove or disprove the validity or amount of a disputed claim or to impeach.
181
Is evidence of offers to pay medical expenses admissible?
No.
FRE 409 – Offers to Pay Medical and Similar Expenses Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
182
Which rule governs use of evidence of a victim's sexual behavior or predisposition?
FRE 412. In civil and criminal cases, evidence of a victim's other sexual behavior or sexual predisposition is generally inadmissible. In a criminal case, evidence of (1) specific incidences of sexual behavior ARE admissible to prove that someone other than the defendant committed the sexual assault, and (2) specific incidences of sex with the accused ARE admissible in order to prove consent.
183
What does FRE 413 say?
Rule 413 is an exception to the general rule against character evidence. It allows a court to admit evidence of a defendant who is charged with sexual assault's prior commission of sexual assaults.
184
What does FRE 414 say?
Rule 414 is virtually the same as 413, but applies to child molestation cases.
185
What does FRE 415 say?
It says that Rule 413 and 414 evidence can also be admitted in a civil case involving sexual assault or child molestation.
186
What governs a witness's competence to testify?
FRE 601, which says that every witness is competent to testify unless the FREs say otherwise. But in a civil case, state law governs competence regarding a claim or defense for which state law supplies the rule of decision.
187
What is FRE 602?
Says that a witness must have personal knowledge of the matter.
188
What is required by FRE 603?
That the witness be sworn to testify truthfully.
189
Is the presiding judge competent to serve as a witness?
No. FRE 605.
190
Who may impeach a witness?
Any party, including the one who called the witness. FRE 607.
191
Does the Free Exercise Clause require a state to provide unemployment compensation benefits to an employee who quit because of a belief that his religion prohibited him from engaging in the employer's line of work?
Yes. Thomas v. Review Board of the Indiana Employment Security Division (1981) (Burger). The Court's decisions in Everson v. Board of Education and Sherbert v. Verner had established that "[a] person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program."
192
Which canon of judicial conduct requires that a judge should perform the duties of the office, fairly, impartially, and diligently?
Canon 3: The duties of judicial office take precedence over all other activities.
193
What is the holding of Burwell v. Hobby Lobby?
Alito delivered the opinion for the 5-4 majority. The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends. Because the contraceptive mandate forces religious corporations to fund what they consider abortion, which goes against their stated religious principles, or face significant fines, it creates a substantial burden that is not the least restrictive method of satisfying the government's interests. In fact, a less restrictive method exists in the form of the Department of Health and Human Services' exemption for non-profit religious organizations, which the Court held can and should be applied to for-profit corporations such as Hobby Lobby.
194
Which case held that compulsory recitation of the Pledge of Allegiance in K-12 schools violates the First Amendment?
West Virginia State Board of Education v. Barnette (1943)(Jackson). In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional.
The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values.
Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
195
What is the RFRA test?
If the government action substantially burden the free exercise of religion:
1. there must be a compelling interest
2. and the means to achieve it must be narrowly tailored to achieve these means
3. the government action must be the least restrictive means possible to further that compelling interest.
196
Which case established the Fourth Amendment's third party doctrine?
Smith v. Maryland (1979)(Blackman)
The Court held that Fourth Amendment protections are only relevant if the individual had a reasonable expectation of privacy.
This reasonable expectation of privacy does not apply to the numbers recorded by a pen register because those numbers are used in the regular conduct of the phone company's business, a fact of which individuals are aware. Because the Fourth Amendment does not apply to information that is voluntarily given to third parties, the telephone numbers that are regularly and voluntarily provided to telephone companies by their customers do not gain Fourth Amendment protections.
197
What is the holding of Ledbetter v. Goodyear Tire and Rubber Company?
(2007)(Alito). The Court held that a claim of gender discrimination in salary was time-barred by Title VII's limitations period. The opinion held that "current effects alone cannot breathe life into prior, uncharged discrimination."
For a timely claim, the claimant must file a claim within 180 days of a discriminatory salary decision; the Court did not consider it significant that paychecks she received during the 180 days prior to her claim were affected by the past discrimination.
198
Can the U.S. government require payment of Social Security taxes from those who religiously object to the receipt of the attached benefits?
Yes.
In United States v. Lee, the Court held that the tax was not unconstitutional as applied because it satisfied strict scrutiny.
199
Free Exercise Clause
The free exercise clause cannot be used to challenge a neutral law of general applicability, i.e., no matter how much a law burdens religion, it is constitutional under if it does not single out religious behavior for punishment and was not motivated by a desire to interfere with religion.
Employment Division, Department of Human Resources of Oregon v. Smith (1990) (Scalia).
But see RFRA, which requires a compelling state interest and the least restrictive means used to achieve the objective, including whether the law treats any comparable non-secular activity more favorably than the secular activity.
200
What is the role of precedent in making important or difficult legal decisions? And how would you balance the importance of respect for precedent versus personal experience or other sources of information or insight in making difficult judicial decisions?
As a district court judge, I am bound by Supreme Court and 9th Circuit precedent, regardless of my personal experience. Precedent, the law, and the facts are the drivers of judicial decisions.
201
Would you tell us why you think gender diversity, as well as diversity in terms of race or other forms of background, is vital for the judiciary, and, if seated on the bench, you would be the voice of the rule of law without regard to background or personal experience or faith or other critical features?
I think diversity of all kinds is valuable in our judicial system. I believe it increases public confidence in the justice system because it increases the courts' credibility. It ensures it isn't just a particular demographic judging the rest of us.
202
In the federal court system, in the criminal process, at what point are the scales balanced? At what point does the criminal defendant really believe they have as much power as the prosecutor in terms of asserting their constitutional rights and asserting their innocence, which most do? What is your observation having been witness to and as part of that process for so many years?
You raise important questions of policy. As a trial court judge, I am bound by the law Congress makes and by precedent. I think it would be inappropriate for me to opine on policy matters or let them influence my decisions to the extent they are not embodied in precedent or the applicable statute before me.
203
Could you comment a little bit on your view on the role of the American jury both as a pure judicial institution and in the broader context of its role within the American system of government given its history?
I think the jury has an extremely important role to play in our system of government. It is one of the reasons why the right to jury trial was protected in the Bill of Rights. The Founders viewed it as an essential protector of liberty.
The 6th and 7th (the amt in controversy exceeds $20) Amendments guarantee a right to trial by jury.
204
Who has the responsibility to ensure that laws are faithfully executed like the Constitution requires? Do the courts have any role to play?
The President is duty-bound to ensure the laws are faithfully executed. The courts have a role in deciding cases and controversies relating to that responsibility and the separation of powers as well as determining whether the laws comply with the Constitution.
205
I would like to have you describe for us some traits or judicial philosophy that you would like to emulate as a judge if confirmed. Is there are particular justice that you admire?
Many justices have traits that I admire. I admire Justices Ginsburg and Scalia for their collegiality despite having very different views of the law at times. They were examples to us all how to discuss important issues in a civil and productive manner.
206
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.?
(1995)(Souter) A unanimous court held that the State Court's ruling to require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey violates the First Amendment by making private speech subordinate to the public accommodation requirement.
Such an action "violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."
207
Has the Supreme Court ever recognized a "reporter's privilege"?
No. In Branzburg v. Hayes (1972)(White), the first and only case to discuss such a privilege, the Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment.
Because the case involved no governmental prior restraint and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.
208
What is Cruzan's holding?
Cruzan by Cruzan v. Director, Missouri Dept of Health (1990)(Rehnquist),
The Court held that though individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights.
Absent "clear and convincing" evidence that an incompetent person desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional.
Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.
209
What case held that the federal RFRA cannot be applied to the States?
City of Boerne v. Flores (1997) (Kennedy). The Court held that the 14th Amendment's provision allowing Congress to pass laws to "enforce" it did not allow Congress to create new constitutional rights or expand the scope of rights. Instead, Congress may act only to prevent or remedy the violation of rights recognized by the courts. Such laws must be narrowly tailored and proportionate and congruent to prevent and remedy the constitutional violations.
210
What is a fundamental right and examples of such rights?
According to Washington v. Glucksberg (1997) (Rehnquist), a fundamental right is one that is:
(1) deeply rooted in our nation’s history and traditions, and (2) can be clearly defined.
Standard of review for most fundamental rights is strict scrutiny. For example:
right to bear arms (2nd Amendment)
refusing medical care (due process clause)
right to travel (equal protection and privileges/immunities clause)
right to vote (privileges/immunities and 15th Amendment)
right to privacy (due process and equal protection)
right to marry (due process)
211
What is the holding of Marbury v. Madison?
(1803)(Marshall). Established judicial review of laws.
Held that a provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, because it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established. Congress did not have the power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws. The court therefore did not have jurisdiction.
Matters entirely within the executive's discretion are not justiciable but when the executive has a legal duty to act, the judiciary can provide a remedy, including a writ of mandamus.
212
What is the holding of Brown v. Board of Education?
(1954)(Warren). The Supreme Court held that “separate but equal” facilities are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment.
The Court also held that the segregation of public schools based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children.
213
What is the holding of Plessy v. Ferguson?
(1896)(Brown). Justice Brown conceded that the 14th Amendment intended to establish absolute equality for the races before the law, but held that separate treatment did not imply the inferiority of African Americans when the treatment was equal.
Justice Harlan's famous dissent stated that "the Constitution is colorblind, and it neither knows nor tolerates classes among citizens."
214
What is the holding of Dred Scott?
Dred Scott v. Sandford (1857) (Taney).
The Court held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves,” whether enslaved or free, could not be an American citizen and therefore, did not have standing to sue in federal court. Because the Court lacked jurisdiction, the Court dismissed the case on procedural grounds. The Court held also that the Missouri Compromise of 1820 was unconstitutional and foreclosed Congress from freeing slaves within Federal territories.
The opinion showed deference to Missouri courts, which held that moving to a free state did not render Scott emancipated. Finally, the Court ruled that slaves were property under the Fifth Amendment, and that any law depriving a slave owner of that property was unconstitutional.
215
What is the holding of Korematsu?
Korematsu v. United States (1944) (Black).
The Court upheld Korematsu’s conviction and the constitutionality of the exclusion order. The need to protect against espionage outweighed Korematsu's rights. Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril." Korematsu has never been expressly overruled, though in Trump v. Hawaii, Chief Justice Roberts, expressed disapproval of it.
In 2011, the Solicitor General confessed error, namely the suppression of evidence that, had it been disclosed to the Court, likely would have caused a different result.
216
What are the Slaughterhouse Cases?
(1873) Early case construing 14th Amendment.
Involved a Louisiana law giving one company a monopoly over slaughterhouses for 25 years - prohibiting the butchering of animals anywhere else. Butchers argued this caused them to be unable to practice their trade and earn a livelihood and created "involuntary servitude," abridged "privileges and immunities," denied "equal protection of the laws," and deprived them of "liberty and property without due process of law" by depriving the right to pursue one's profession.
The Court held that the 13th Amendment applied only to grant equality to those who had been enslaved. The Court held the 14th did not guarantee equal economic privileges to all citizens by the state. The Court held also that the butchers were not deprived of property without due process because they could still slaughter animals at the remaining slaughterhouse.
217
What is Lochner?
Lochner v. New York (1905)(Peckham).
The court held that a New York law limiting the number of hours bakers could work interfered with the freedom of contract, and thus the Fourteenth Amendment's right to liberty afforded to employer and employee. The Court viewed the statute as a labor law; the state had no reasonable ground for interfering with liberty by determining the hours of labor.
218
What is the well-pleaded complaint rule?
The Supreme Court's interpretation of the "arising under" language from 28 USC 1331.
Federal question jurisdiction must appear on the face of a properly pleaded complaint. It cannot be based upon an defense based on federal law or by anticipation of such a defense in the complaint.
219
Which case held that parents have the right to teach their children the languages of their choice?
Meyer v. Nebraska (1923) held that a Nebraska statute outlawing the teaching of the German language violated protected liberty protected under the Due Process Clause of the Fourteenth Amendment.
The legislative purpose of the law was to promote assimilation and civic development. These purposes were not adequate to justify interfering with the right of a teacher to teach or the rights of parents to raise their children as they saw fit.
Liberty means more than freedom from bodily restraint. State regulation of liberty must be reasonably related to a proper state objective.
220
What is RLUIPA?
Passed in 2000, the Religious Land Use and Institutionalized Persons Act was a legislative reaction to Boerne v. Flores' holding that RFRA was unconstitutional as applied to states.
Prohibits government from placing a substantial burden on the exercise of religion --through land use regulation or on institutionalized people--unless there is a compelling state interest and law or regulation is the least restrictive means of furthering that interest.
Holt v. Hobbs (2015)(Alito) is the most recent RLUIPA case - SCOTUS unanimously ruled that an Arkansas prison policy which prohibited a Muslim prisoner from growing a short beard in accordance with his religious beliefs violated RLUIPA.
221
Do you personally believe the meaning of the Eighth Amendment has changed over time?
Graham v. Fla., 560 U.S. 48, 58 (2010): To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008)
222
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC?
(2012)(Roberts). Held that both the establishment clause and the free exercise clause are violated if a religious institution is held liable under an employment discrimination law for its decision to fire a minister.
Court should defer to religious school's judgment of who is a "minister" - otherwise it would violate the free exercise clause by imposing an unwanted minister and would violate the establishment clause by entangling the government in ecclesiastical decisions
223
In ADEA cases, does the "motivating factor" test apply?
In Gross v. FBL Financial Services, Inc. (2009)(Thomas), the Court held that in an ADEA discrimination case, the plaintiff must prove age was the "but-for" cause of the defendant's action.
If it did not cause the adverse employment action, there is no liability, even if it was one motivating factor in the decision.
224
When evaluating a Title VII retaliation claim, what the causation test do courts use?
No, in University of Texas Southwestern Medical Center v. Nassar (2013)(Kennedy), the Court held that the retaliation provision of Title VII requires the plaintiff to prove than an employer would not have taken an action "but for" the existence of improper motives.
225
What is the primary source of federal law on disqualification?
28 USC 455
226
In addition to 28 USC 455, what statute allows a district court to be disqualified when a litigant files an affidavit alleging bias or prejudice?
28 USC 144
Whenever a party makes and files a timely and sufficient affidavit that the judge has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
227
What is the IDEA?
The Individuals with Disabilities Education Act ensures students with disabilities are provided with Free Appropriate Public Education, which is tailored to their individual needs. The goal of IDEA is to provide the same opportunity for education as students who do not have a disability.
(IDEA was previously known as the Education for All Handicapped Children Act from 1975 to 1990. In 1990, the United States Congress reauthorized EHA and changed the title to IDEA (Public Law No. 94-142).)
228
Which case created the framework for evaluating IDEA claims?
Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) (Rehnquist) actually involved IDEA's predecessor statute, the Education of All Handicapped Children Act of 1975, but created the test used under the IDEA:
1. Has the State complied with the procedures set forth in the Act?
2. Is the individualized educational program reasonably calculated to enable the child to receive educational benefits?
If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more."
229
Which case establishes a person's ability to bring a qui tam action under the False Claims Act?
Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000). (Scalia)
A private individual has standing to bring suit on behalf of the federal government in federal court against "any person" who presents a false or fraudulent claim for payment.
The Court concluded that the False Claims Act does not include states as "persons" who can be sued under the law.
230
Does the Fair Labor Standards Act apply to public employers?
Yes. Though considering the issue of federalism, the Court held that Congress has the authority under the Commerce Clause to require states to comply with the FLSA.
Garcia v. San Antonio Metro. Transit Authority (1984).
231
Must States provide a free public education to undocumented children?
Yes. In Plyler v. Doe (1982) (Brennen), the Court held that denying the right to attend public school violates the Equal Protection Clause of the Fourteenth Amendment.
The Court noted that the children were not members of a suspect class, because, though aliens are a suspect class, illegal aliens are not.
The Court found that any state restriction imposed on the rights afforded to children based on their undocumented status must be examined under an intermediate scrutiny standard to determine whether it furthers a "substantial" government interest
232
Can employers require employees to agree to arbitrate claims arising out of their employment on an individual basis?
In Epic Systems Corp. v. Lewis (2018) (Gorsuch), the Court held that the Federal Arbitration Act requires “courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.”
Thus, the Court held that employers can require employees to submit all work-related disputes to individual arbitration.
It rejected the argument that the NLRA creates a right to group arbitration and thus prohibits such a requirement. It thus rejected the argument that the NLRA in this way trumps the FAA.
233
Sessions v. Dimaya (2018) - the violent felony case
5-4 (Kagan). Affirmed the 9th circuit and held that 18 U.S.C. §16(b), which defines “violent felony” for purposes of the Immigration and Nationality Act’s removal provisions, is unconstitutionally vague.
The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. An aggravated felony includes “a crime of violence.” One provision of the INA defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.”
234
Can the federal court decide cases asserting partisan gerrymandering?
In Rucho v. Common Cause and Lamone v. Benisek (2019), the Court held that partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts.
Though federal courts can resolve “a variety of questions surrounding districting,” including racial gerrymandering, it cannot decide when political gerrymandering gone too far.
235
American Legion v. American Humanist Assn (2019)
Cross at intersection did not violate the Establishment Clause. Even if the meaning of a monument was originally religious, that meaning can change or expand through time. The cross is a symbol of World War I and removing it would not be neutral or advance First Amendment ideals of respect and tolerance.
236
Espinoza v. Montana Department of Revenue (2020)?
Free exercise/strict scrutiny case. Montana SC's application of the MT Constitution's no-aid rule to prohibit families from using scholarships for private school tuition at religious schools discriminated against religious schools and the families in violation of the Free Exercise Clause, because it “impose[d] special disabilities on the basis of religious status” and “condition[ed] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.”
237
Law on the right to petition on private property?
In Lloyd Corp., Ltd. v. Tanner (1972) (5-4), SCOTUS held that a shopping center owner's prohibition on the distribution of handbills within a shopping center did not violate the First Amendment because the mall retained its private character even though it was open to the public.
But in PruneYard Shopping Ctr. v. Robins, (1980), the court held that the CA Constitution's provision of more expansive free speech rights than those conferred by the Federal Constitution permitting individuals to exercise free speech and petition rights in privately owned shopping centers did not violate the owner's free speech rights under the 1st and 14th Amendments
Depends on the facts & balancing of the 5th/14th Amendment rights of private property owners with the 1st Amendment rights of all citizens, and SCOTUS has said that "the drawing of lines to assure due protection of both" are not always easy.
238
What are unenumerated rights and examples of such rights?
Rights not expressly enumerated in the Constitution, such as:
refusing medical care (due process clause)
right to travel (equal protection and privileges/immunities clause)
right to vote (privileges/immunities and 15th Amendment)
right to privacy (due process and equal protection)
right to marry (due process)
239
What is the "adequate and independent state grounds" doctrine?
Michigan v. Long (1983).
The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. It will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision.
240
What is a federal question?
A claim that arises under the Constitution, treaties, or laws of the United States. (Includes not only federal statutes but federal common law—i.e., case law interpreting federal statutes.) 28 USC § 1331.
"Arises under" means that either federal law creates the cause of action or the plaintiff's complaint requires resolution of a substantial question of federal law.
241
Do you know what a motion in limine is?
Luce v. United States, 469 U.S. 38, 40 n.2 (1984):
A motion in limine is a motion made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.
Usually, this is a pretrial motion to limit or exclude evidence, or to obtain a ruling to include evidence.
242
What are some hearsay exceptions?
Rule 803. Exceptions to the Rule Against Hearsay
(1) Present Sense Impression.
(2) Excited Utterance.
(3) Then-Existing Mental, Emotional, or Physical Condition.
(4) Statement Made for Medical Diagnosis or Treatment.
(5) Recorded Recollection.
(6) Records of a Regularly Conducted Activity.
(7) Absence of a Record of a Regularly Conducted Activity.
(8) Public Records.
(9) Public Records of Vital Statistics.
(10) Absence of a Public Record. Testimony
(11) Records of Religious Organizations Concerning Personal or Family History.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies.
(13) Family Records.
(14) Records of Documents That Affect an Interest in Property.
(15) Statements in Documents That Affect an Interest in Property.
(16) Statements in Ancient Documents.
(17) Market Reports and Similar Commercial Publications.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets.
(19) Reputation Concerning Personal or Family History.
(20) Reputation Concerning Boundaries or General History.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
(22) Judgment of a Previous Conviction.
(23) Judgments Involving Personal, Family, or General History, or a Boundary.
(24) [Other Exceptions .]
243
In your opinion is all legislative history equal? Or are there some kinds of legislative history--some legislative history data points that are more reliable or less reliable than others?
Reports of the congressional committees, which considered the proposed legislation and recommended its enactment, are more valuable.
Other documents generated prior to enactment, including statements made on the floor of Congress in legislative debate, statements or testimony at committee hearings, and earlier or alternative versions of the bill, are more valuable.
Statements made and reports written after enactment are usually found to be less persuasive, and are not considered part of the “legislative history.”
244
Tandon v. Newsom, 593 U.S. ___ (2021).
Government regulations, which treat any comparable secular activity more favorably than religious exercise, are not neutral and generally applicable. These laws trigger the Free Exercise Clause and are subject to strict scrutiny.
Granted injunctive relief against a CA regulation that restricted at-home gatherings in private homes to no more than 3 households. CA was treating secular and religious activities differently, by permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting event and concerts that brought together more than three households at a time.
First, governmental regulations “are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”
Second, the comparability of secular and religious activities should be determined “with the risk various activities pose, not the reasons why people gather.”
Third, the government has the burden to satisfy strict scrutiny: “narrow tailoring requires the government to show” that less restrictive means would not address the spread of the virus or that religious activities are more dangerous than secular counterparts.
Fourth, the government cannot moot a case simply by changing current regulations if harsher regulations remain a possibility.
245
Do governmental legislative bodies violate the Establishment Clause by opening its session with a prayer given by a chaplain paid by the State?
In Marsh v. Chambers (1983), the Court held that though historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress.
Because Congress has opened with a prayer for 200 years, there was no doubt that the practice has become part of the fabric of our society.
In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret the Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government
246
Lawrence v. Texas (2003) - overruled Bowers v. Hardwick
A Texas law that criminalized same-sex sodomy was unconstitutional under the liberty component of the Fourteenth Amendment’s Due Process Clause - liberty from unwanted governmental intrusion into the private home.
Disputed the Bowers court’s view that the country had historically criminalized gay sodomy; early anti-sodomy laws were not directed specifically at homosexual conduct but at all non-procreative sex.
The law branded homosexuals as presumptive criminals, making it much more difficult for them to be treated like other members of society. Laws targeting homosexual sodomy—but not heterosexual sodomy—were “born of animosity” toward homosexuals and therefore are “an invitation to subject homosexual persons to discrimination both in the public and the private sphere.”
247
To what extent can a university consider race with regards to admission?
The question is before the Supreme Court, and it would not be appropriate for me to opine.
In general, laws that prefer a race in college admissions must meet strict scrutiny.
University of CA v. Bakke (1978) - set-aside of minority seats for medical school violated equal protection. School's interest in having a diverse study body was probably compelling but the set-aside was not necessary to achieve it
Grutter v. Bollinger (2003) - UM Law School's policy in looking at entire admissions file and considering diversity as a plus did not violate equal protection. A diverse student body is a compelling govt interest and individualized review, including race, helped ensure that race was not the defining feature and was narrowly tailored toward achieving the compelling sate interest.
Gratz v Bollinger (2003) - UM undergrad's points system with auto 20 points for minorities violated equal protection
Fisher v UT (2016) - same result as Grutter
248
Can the government require clinics to inform people of publicly funded family planning services, including contraception and abortion?
No. In Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361 (2018) the Court held that the FACT Act (Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act)--which required the provision of these notices (licensure, state sponsored pregnancy services including contraception and abortion) --violates the First Amendment.
Content-based, compelled speech is “presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
249
Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council (2018)
States and public-sector unions may no longer extract agency fees from employees who choose not to join the union but are, nonetheless, represented by the union in collective bargaining.
250
What are the exceptions to the warrant requirement?
6 major exceptions - SPACES
1. Search incident to lawful arrest - wingspan
2. Plain view exception
3. Automobile exception - those areas that might contain evidence of the type suspected to be present
4. Consent
5. Exigent circumstances/hot pursuit
6. Stop and frisk - suspect armed and dangerous
251
In the U.S., do you think acts of violence are committed more on the political right than on the political left?
I don’t have an opinion on that and in light of the judicial canons and the fact that my personal views cannot and will not play a role in my judicial decisions, I do not think it would be appropriate to discuss any personal views I may have.
252
Do you believe that crime is a -- is a disease that needs a cure, or is it antisocial behavior that deserves punishment?
I lack the qualification to speak to the social science aspect of the question. What I do know is that there is the law and the obligation to comply with it. The Sentencing Guidelines seem to incorporate both, as a judge is to consider the need for a sentence to provide punishment as well as rehabilitation.
253
Are you a textualist or a purposivist?
Both of these methods may have a role, depending upon the circumstances of the case presented.
In the last 12 years, when I have been presented with a statute about which there is debate, I start with determining whether there is any precedent on point or any analogous precedent. of the parties. I examine the text of the statute, and if there is no ambiguity, the job is done.
If there is ambiguity, I look to statutory context and the canons of construction.
254
Suppose that there’s an academic study done that says that one of the stimulating effects of young men engaging in mass shootings is the internet. Suppose it says that if you eliminate all the postings on social media with the words “kill,” “murder,” “dead,” and “gun,” then that would help reduce mass shootings. Government says in response that any postings using these words must be approved by the government first. Is that constitutional? How do you analyze the issue?
Since you are dealing with speech this deals with a fundamental right that would trigger strict scrutiny. A court would analyze the issue by evaluating whether the government has proven that it has a compelling interest in the law and that the means it has chosen are narrowly tailored to achieve that interest.
255
Roe v Wade (1973)?
Relying on the liberty protected in the 14th Amendment's due process clause, the court held that women have a fundamental right to abortion meriting a strict scrutiny analysis
Right to abortion not absolute - adopted a trimester approach
1st: no prohibition, only regulation the same as regulation of other medical procedures
2nd: no prohibition but regulation in ways reasonably related to maternal health
3rd: can outlaw and regulate except if necessary to preserve life/health of mother
256
Explain to me the status of the law regarding what laws I have to comply with and don’t have to comply with due to religion?
Religious liberty (federal and state action):
1. a neutral law of general applicability only has to meet rational basis review, but
2. laws that are directed at religious practices or are based upon religious animus implicate the Free Exercise Clause and have to meet strict scrutiny
RFRA (applies only to federal action):
1. courts must use strict scrutiny in analyzing free exercise clause claims, even as to laws of neutral applicability and
2. must determine whether the law uses the least restrictive means to achieve the goal
257
Can I discriminate based on my religion? What if my religion doesn't allow me to be around black people?
In Bob Jones Univ v US (1983), SCOTUS held that the denial of tax-exempt status to private, religious schools that racially discriminated did not violate the free exercise clause.
Govt has an "overriding interest" in eradicating racial discrimination in education that substantially outweighs whatever burden the denial of tax benefits placed on petitioners' religious beliefs
258
Are there rights that are fundamental that haven’t been determined?
That is a question that may come before me so it would be inappropriate for me to respond to that question
259
How would you prepare to handle criminal law matters?
I would take advantage of every resource available to me through the federal judicial center, as well as the materials put out by the US Sentencing Commission and the Criminal Law Committee. I would also rely upon my colleagues as a resource I would certainly take advantage of as well.
260
Is legislative history something that can be considered in Constitutional issue adjudication? What are some examples?
The text is the best reflection of the drafters' intent, but the court has looked to legislative history in interpreting the constitution.
INS v Chadha - in considering bicameralism and presentment in considering constitutionality of legislative veto
Rucho v Common Cause - in determining that partisan gerrymandering was a political question
261
How do you determine original public meaning?
I consider the text first. I look for Supreme Court precedent and any 9th Circuit precedent. I look to the methods of interpretation those court used. And in cases like Heller and Crawford, they used originalism and I follow the higher courts to know which canons of construction or which methods to use.
I would take my cues from the Supreme Court regarding where to look. Since laws are written for the people, the text is very important. I would first look to the text of the law and the statutory context. I might also look to time-period dictionaries, how the term may have been used in other federal or state laws at the time, and legislative history (minutes from Constitutional Convention, federalist papers).
262
What is the state of the law on the extent to which the government can or cannot burden my religious beliefs?
Under the establishment clause, government cannot prefer one religion over others. If a law is neutral (non-discriminatory among religions), it is subject to the Lemon test: (1) law must have a secular government purpose, (2) its principal effect must be one that neither advances nor inhibits religion, and (3) the law must not foster an excessive government entanglement with religion
Under the free exercise clause, a neutral law of general applicability that burdens religion is not unconstitutional unless it fails rational basis review, but a law that is not neutral or of general applicability is unconstitutional unless it survives strict scrutiny.
Note that under RFRA, even a federal law of general applicability cannot substantially burden religious freedom unless it survives strict scrutiny. RFRA doesn’t apply to states per City of Boerne v. Flores, but RLUIPA does with respect to land use laws and laws affecting institutionalized persons.
263
Can a court bind parties that are not before it?
FRCP 65 allows the court to enjoin people "in active concert or participation with" the parties.
The 9th Circuit has held that nationwide injunctions may issue when necessary and to the extent necessary to accord the plaintiff complete relief.
264
Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council (2018)
Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Nonmembers are required to pay what is generally called an “agency fee,” i.e., a percentage of the full union dues. The state law authorizing agency fees from nonconsenting public-sector employees violates the First Amendment bc it forces free and independent individuals to endorse ideas they find objectionable.
Agency fees cannot be upheld on the ground that they promote an interest in “labor peace” or preventing free riders. Experience shows that unions can be effective even without agency fees.
Overruled Abood
States and public-sector unions may no longer extract agency fees from nonconsenting employees.
265
What is Auer deference?
Deference to an agency's interpretation of its own ambiguous regulation.
Reaffirmed/clarified in Kisor v. Wilkie (2019). The new Kisor five-step doctrine for deference to agency regulatory interpretations:
The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one).
The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two).
The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context.”
The agency’s regulatory interpretation must implicate the agency’s substantive expertise
The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise.
266
What is substantive due process?
Substantive due process allows courts to prevent governmental interference with fundamental rights.
Substantive due process protects:
1. Right to marry
2. Right to raise one's own children, for example
267
What are quasi-suspect classes?
Classifications subject to intermediate scrutiny (laws that are substantially related to an important govt interest)
E.g.:
1. Gender
2. Illegitimacy
268
In the U.S., do you think acts of violence are committed more on the political right than on the political left?
This question may raise important policy questions, but I have not read a study which documents the political affiliation of those who are charged with or convicted of committing acts of violence. So, I can't speak to that.
269
What is a taking?
A taking occurs where there is a:
possessory taking (govt confiscates or physically occupies property), or
regulatory taking (where the regulation leaves no reasonable economically viable use of the property).
Relevant factors to determine whether there has been a regulatory taking include:
economic impact of the regulation on the party protesting it extent to which the regulation interferes with distinct investment expectations the nature of the governmental action, e.g., a physical occupation of the property
270
Is solitary confinement cruel and unusual punishment?
Inappropriate for me to answer because this question may come before me.
I would evaluate 8th amendment cruel and unusual punishment claims based on precedent and the record before me relating to the particular solitary confinement practice at issue.
1. Whether there is an objectively serious deprivation, which equates to a denial of “the minimal civilized measures of life's necessities"
2. The governmental official acted with deliberate indifference to the deprivation
271
What is the test in the 9th Circuit to analyze whether a statute violates the Second Amendment?
In Young v. Hawaii, the Court recognized that Heller, the determined that:
1. If the law destroys 2nd Amendment rights, it fails under any level of scrutiny;
2. If it implicates a core 2nd Amendment right, the court evaluates it with strict scrutiny;
3. If it does not implicate the core 2nd Amendment right, it is subject to intermediate scrutiny.
However, Young found that open carry is not within the core rights and applied intermediate scrutiny.
272
"Explain to me the status of the law regarding what laws I have to comply with and don’t have to comply with due to religion?"
As to state laws, a neutral law of general applicability only has to meet rational basis review, but laws that are directed at religious practices or government actions based on religious animus have to meet strict scrutiny.
As to federal laws, under RFRA courts must use strict scrutiny in analyzing free exercise clause claims, even as to laws of neutral applicability, and the government must use the least restrictive means to achieve the interest.
273
Can I discriminate based on my religion? What if my religion doesn't allow me to be around black people?
In Bob Jones Univ v US (1983), SCOTUS held that the denial of tax-exempt status to private schools that racially discriminated because of sincere religious beliefs did not violate the free exercise clause.
Govt has a compelling interest in eradicating racial discrimination in education that substantially outweighs whatever burden denial of tax benefits placed on petitioners' religious beliefs.
274
How do you think the mens rea requirement is consistent with principle that ignorance of law is no excuse?
The maxim that “ignorance of the law is no excuse" normally applies where a defendant possesses the required mental state when committing the crime but claims to be unaware of a law forbidding his conduct.
That maxim does not normally apply when a defendant's mistaken impression about a collateral legal question causes him to misunderstand the significance of the acts constituting the crime, thereby negating an element of the offense.
In Rehaif v. U.S., the Court held that the government must prove that he knowingly possessed a firearm and knew that he was in the country illegally at the time.
(Rehaif knew he had flunked out of school and that he was in the country on a student visa. Within days of dropping out of school he went to a shooting range and rented a gun. His visa was terminated two months later, due to his no longer being in school.)
Rehaif v. United States, 139 S. Ct. 2191 (2019)
275
What is the test used to determine whether the law has violated the establishment clause?
In evaluating whether the law has violated the the establishment clause, courts consider whether:
1. the primary purpose is unrelated to religion
2. whether it promotes or inhibits religion
3. whether it fosters excessive government entanglement with religion
(Lemon v. Kurtzman)
276
What is the substantive due process analysis?
1. Is a fundamental right at issue?
2. Does the law substantially impair the right?
3. Then, subject the government action to strict scrutiny
277
Standard for preliminary injunction?
LIEP
The movant has shown a:
1. likelihood of success on the merits
2. likelihood irreparable harm
3. The equities tip in favor of the moving party
4. The injunction is in the public interest.
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)
278
What if an inmate was denied sexual reassignment surgery? How are you going to evaluate that lawsuit?
Brought under section 1983 for violation of 8th Amendment rights, the plaintiff must show:
1. The plaintiff suffered from a serious medical condition
2. The defendant was deliberately indifferent to the serious medical condition:
a. The defendant was subjectively aware of the serious medical condition
b. The inadequate response was objectively unreasonable
279
Which rights do prisoners lose?
For example:
Freedom of association
Right to privacy
Searches and seizure
Right to bear arms
Free speech can be limited if necessary for maintaining security or some other important governmental interest
280
Do laws enjoy a presumption of constitutionality?
Yes. Under this presumption, courts should, if possible, interpret ambiguous statutes to avoid rendering them unconstitutional and to resolve cases on other, statutory grounds, if it can.
281
June Medical Services v. Russo, 140 S. Ct. 2103 (2020).
To determine if the law imposes an undue burden on the right to abortion, courts weigh the law’s “asserted benefits against the burdens.”
The evidence supported the District Court’s conclusion that the law was unconstitutional because the admitting-privileges requirement would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in the State and imposing substantial obstacles on those who could.
(Almost identical facts as in Whole Woman’s Health v. Hellerstedt.)
282
In your view, what limitations exist on searches of computers or information stored by an electronic device in a cloud server? What role do you believe the exclusionary rule should play in these types of searches?
The 4th Amendment applies to these types of searches. Courts evaluate whether there is a reasonable expectation in the thing searched. If so, a warrant is required.
The Court found in Riley v. California, that officers could not search a cell phone even incident to arrest.
The third party doctrine is still evolving, but, for example, in Carpenter v US the Supreme Court held that law enforcement must obtain a warrant for cell site location records
283
What is your view of the extent to which the Bill of Rights continues to operate and protect our liberties even in a time of crisis? [Ted Cruz]
The Bill of Rights continues to operate and protect our liberties always, but in times of crises, they must be weighed against government interests and military discretion.
284
Now, just as an opportunity to have you think about if we're a government based on enumerated and limited powers, and the federal government is limited by the Tenth Amendment, could you give an example of an activity that the federal government does not have the authority to regulate? {Chuck Grassley|
The federal government cannot commandeer the state, as for example what it did in requiring states to have anti-gambling laws that the Supreme Court invalidated in the PASPA case.
As another example, in the federal govt’s commerce clause authority it can generally not regulate intrastate non-activity or intrastate economic activity that doesn’t discriminate against interstate commerce or otherwise run afoul of interstate commerce
285
What is the 9th Circuit's view of the Second Amendment?
We have previously held that individuals do not have a Second Amendment right to carry concealed weapons in public. Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).
The question presented in this case is whether individuals have a right to carry weapons openly in public. In order to answer that question, we ask, first, whether Hawai‘i’s law affects conduct protected by the Second Amendment. If so, we then determine if the law can survive the appropriate level of scrutiny.
After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.
286
Do we have a fundamental right to travel? Why don’t we have a fundamental right to travel internationally? What’s the reason for that? Assuming Great Britain says it’s okay to come, how can the U.S. restrict my right to travel to Great Britain in a way they can’t block my travel to Mississippi? Give me one more shot on why I can travel state to state but not internationally? What’s the legal basis for my fundamental right to travel to Mississippi?
In US v. Guest (1966), the Supreme Court expressly declared that there is a fundamental right to interstate travel. (It is subject to strict scrutiny review.)
The right to free movement among the states has been acknowledged as a basic liberty and is historically seen as a method of breaking down state provincialism and facilitating creation of a true federal union
Facilitates federalism interests as well - the right to relocate to a place with a different political climate and environment
The same considerations aren't present with foreign travel; the foreign policy aspects of international travel make it different, and it is subject to rational basis review. Matters relating to the conduct of foreign relations are so exclusively entrusted to the political branches as to be largely immune from judicial inquiry or interference. The reason for this is that the State Department is best suited to determine who places our nation's security at risk. The DC Circuit said, "The Secretary [of State] may preclude potential matches from the international tinderbox."
(In Zemel v Rusk (1965), the Supreme Court upheld the constitutionality of the secretary of state's refusal to issue passport for travel to Cuba around the time of the Cuban missile crisis)
287
Let’s suppose a state passed a statute that said that all state printing must be bid out, and then the state wanted to take the printing in house. Could it do so?
That analysis would involve a factual inquiry into whether the state had created a property right protected by the 14th amendment, and the court determines this based on the expectations created by the relevant state action.
288
Do federal judges have inherent authority to enjoin state court actions without authority from statutes or the constitution?
Not without authority from statutes or the constitution. Under the Anti-Injunction Act, 28 U.S.C. § 2283 (2008), federal courts are prohibited from enjoining state court proceedings except in three narrowly defined cases:
1. Congress expressly authorizes the enjoinment. 28 U.S.C. § 2283.
2. Where it is necessary for the federal court to aid its jurisdiction. Id.
3. Where it is necessary for the federal court to protect or effectuate its judgments. Id.
289
Can you share with this committee your views on why separation of powers matters, and what it does for the average American citizen? [Ted Cruz]
The separation of powers protect liberty. If we didn't have separation of powers, we could have a great bill of rights, but with no mechanism to enforce it, it would have little value.
290
What is the general rule on government regulation of speech?
Content-based restrictions of speech must meet strict scrutiny, while content-neutral regulation only need meet intermediate scrutiny content-neutral viewpoint neutral (no regulation based on ideology) AND subject matter neutral (no regulation based on the topic of the speech) there might be secondary effects considerations that render a non-neutral regulation neutral, e.g., banning nude dancing to eliminate gang activity associated with it, not the dancing
291
Describe the government's power to regulate speech in public forums
If the governmental action is content neutral, time, place and manner restrictions are upheld if they meet heightened intermediate scrutiny:
1. the restriction is narrowly tailored to serve the substantial governmental interest (it does not have to be the least restrictive);
2. there must be ample alternative channels for communicating the speaker's message
If the governmental action is content based, it will be upheld only if they meet strict scrutiny:
1. there is a compelling state interest;
2. restriction is narrowly tailored; and
3. it is the least restrictive means
292
Describe my associational rights
The right of Freedom of Association includes the right to associate with groups of likeminded people, and includes:
1. The right to join or leave a group
2. To take collective action to pursue the group's collective interests
3. The right of the group to accept or reject membership in the group
It also includes intimate associations such as:
1. The right to marry
2. To raise your children
3. To live with relatives
The right is an individual and collective right. It is a fundamental right, but the government may infringe on the right if the action survives strict scrutiny.
Cases:
Boy scout case- can exclude a gay scout master, because it forces a communication that the group is tolerant of homosexuals
Hurley - can exclude homosexual group from joining a parade put on by the group
Abood- unions can't force employees to pay fees for ideological and political activities not relevant to the group's collective bargaining activities
293
At another point in the article you state that diversity on the bench “increases the likelihood that justice is meted out.” Do you believe that a bench that is not diverse, either intentionally or unintentionally, cannot mete out justice?
At this point in the article, I was discussing the inconsistent training that was given to Merit Selection Panels. Some Panels received almost no training and the topics of the training varied from panel-to-panel. It appeared to me that this was a possible problem in the selection of MJs because it could work to improperly exclude quality candidates.
I concluded that until there is uniform training given to these panels and there is a data collection effort, that whether the inconsistent training caused quality candidates from being excluded could not be known.
294
If diversity is not a "silver bullet for justice," what is the point?
Diversity enhances the credibility of the court. It increases the likelihood the people will accept as valid the court's judgments. Diversity tells the people, that "this is your court," "this is the court of your community." It isn't just a limited few who sit in judgment on the rest of us, "we judge ourselves."
Unfairness can be imposed by people of every demographic just as, in my view, fairness can be issued by every type of person too. Diversity ensures that the decisions made are accepted by the public and that the decisions themselves have the benefit of full and robust discussion.
295
Since taking the bench in 2009, you have been appealed 43 times and you have been reversed by the Ninth Circuit eight times. Why have you been appealed and reversed so often?
I have issued more than 3,000 decisions over the last 12 years. When considered in this context, my reversal rate is less than 1/4 of 1%.
(SCOTUS has reversed itself about 1/2 of 1%.)
296
The Ninth Circuit held that you erred in granting summary judgment in Vazquez, in part, because you applied the plaintiff’s Fourteenth Amendment, Right to be Free From Punishment claim, under the same standards as an Eighth Amendment claim. What was your reasoning there?
The facts of the case were troubling. In my order, I stated that the conduct was “absolutely unacceptable.” However, in considering my judgment, I was bound by 9th Circuit precedent, Frost v. Agnos and Gibson v. County of Washoe, which requires courts to consider 8th Amendment cases when evaluating 14th Amendment cases arising out of a custodial context. I considered these precedents, which determined the outcome of the case before me. I understand now the 9th Circuit precedent is to no longer consider 8th Amendment cases, and I will apply this precedent.
297
The Ninth Circuit also reversed you in Vazquez because they found that the alleged conduct rose to the level of a Constitutional violation and that the officer was not entitled to qualified immunity. Why did you hold otherwise?
On appeal, the Ninth Circuit held, in essence, that when the officer acts knowing his conduct is wrong--regardless of whether he knows the acts are unconstitutional--he is not entitled to qualified immunity.
Consequently, if I am confronted with such a case in the future, I will apply the 9th Circuit precedent.
298
It seems like the point of the presentation was that it is legal to use marijuana in California as long as you don’t use marijuana on federal land. Is that you were saying as part of your presentation?
Absolutely not. The discussion was that federal law and state law both prohibited the use of marijuana but that the state law provided an immunity from prosecution for possession of medical marijuana.
Around this time, I was seeing a flood of cases in which people were charged with possession of marijuana who were shocked to learn that the state law immunity was a defense to the federal charge. Thus, the discussion served two goals: to remind the group that possession of marijuana is illegal under federal law and to educate them that the state law immunity was no defense to federal charges.
(Because the group had no legal training, the reference to federal lands in the hypothetical was intended only to make it an easier question for them to answer and understand.)
299
On slide 83, you state, “Why can you smoke medical marijuana anywhere in California except on federal lands?” What did you mean by that statement?
The slide was intended to break down a difficult topic for the group who lacked legal training. What it was intended to convey and what I did convey orally, was that both federal ad state law prohibited the possession of marijuana.
Around the time of the presentation, I was seeing a flood of cases in which people were charged with possession of marijuana and who were shocked to learn that the state law immunity was a defense to the federal charge. So, point of the discussion was for two reasons:
to make sure the group understood that under federal law and state law possession of marijuana was illegal; and to educate them that the state law immunity was no defense to federal charges.
(Schedule 1 drug)
300
On slide 83, you write, “state law granted broader rights to use marijuana than the federal law = not a void law”. What did you mean by that statement?
The slide was intended to break down a difficult topic for the group who lacked legal training. What it was intended to convey and what I did convey orally, was that the state law mandated no action that the federal law prohibited, which was the rationale courts used to uphold the CA law.
301
Do you believe that the question of when life begins is a religious question, legal question, scientific question, philosophical question, political question, or some other category that I have not mentioned?
I am not asking you the question in the context of deciding a case. I’m asking you what your personal opinion is about when life begins and whether it is a religious, legal, scientific, philosophical, or political question. What is your answer to that question?
I’m now asking you a legal interpretation question, is the question of when life begins relevant to a legal discussion about abortion rights?
I'd guess that you would receive a different answer depending upon whether you asked a priest, a philosopher, a doctor or a lawyer.
From the perspective of a trial judge, my personal opinion about this issue would have no impact on how I would decide a case raising this issue. However the Supreme Court answers this question will be law that I will follow.
302
President Biden pledged that he would nominate judges who “respect foundational precedents like … Roe v. Wade.” Do you pass President Biden’s litmus test requiring that his nominees be pro-choice?
I am unaware of that statement or the context in which that statement was made. This is the first time throughout this entire process that anyone has asked me my views on this topic, so I can't imagine that President Biden has any idea of my thoughts on the topic. That being said, I will follow the law.
303
Do you believe in the principle and constitutional right of religious liberty?
Can you tell us your view of the importance of the First Amendment and, in particular, the protections of free speech and religious liberty?
Do you agree with me that Americans have the constitutional right to exercise their faith openly—not just at home, but in the public square as well?
The 1st Amendment guarantees our right to religious liberty and to freedom of speech. Freedom of speech means a person can express their feelings on the topics of their interest--whether it is religion or otherwise--at home, or in the public square. The ability of the government to limit that speech must meet the appropriate level of scrutiny.
As a judge for the last 12 years, whenever I have had a case raising 1st Amendment grounds, I have decided the cases based upon the binding precedent, and I will continue to do so.
304
Do you believe it’s appropriate for policy makers to impose restrictions on faith-based activities that do not apply to secular activities like shopping or dining?
How would you approach a case in which a church, synagogue, or other faith-based organization challenged restrictions imposed ostensibly to curb the spread of covid-19?
How would you address the similarities between the secular and religious activities at issue?
How would you decide if a law is appropriately tailored?
In keeping with Tandon v. Newsom, I would consider:
1. whether it was a neutral law of general applicability
2. whether there was a compelling interest behind governmental interest
3. whether the governmental action was the least restrictive means for achieving the interest
4. whether the law treated any comparable secular activities in a more favorable manner
Relevant precedents: Tandon v. Newsom and Roman Catholic Diocese of Brooklyn v. Cuomo.
305
On September 9, 2021, President Biden signed what I believe is an unconstitutional executive order requiring all federal employees and federal contractors to be vaccinated.
First off, you are a federal employee, are you vaccinated?
Do you agree with me, and most Americans, that President Biden’s executive order was unconstitutional?
Since you won’t answer that question, what about an easy one, do you believe a federal government vaccination mandate without religious exemptions would be constitutional? Why or why not?
Yes, I am vaccinated.
Because this issue may be presented in a case before me, I am not permitted to answer this question directly, but I am able to say that, of course, I would follow the relevant precedents.
306
Are you familiar with the Occupational Safety and Health Act of 1970? If so, what does it say?
Do you think the courts should be skeptical when the federal executive branch attempts to use a 50-year old statute, meant to protect workers against chemical spills, to find sweeping authority to implement its own partisan objectives?
I don't recall being confronted with a case in this area during my 12 years on the bench, but I believe it was designed to require employers to provide workplace safety by preventing unsafe working conditions rather than waiting for an injury to occur.
It applies to all private employers but not to federal or state agencies. Upheld in Whirlpool Corp v Marshall, the Court has upheld the Occupational Safety and Health Act of 1970.
307
Is there any Supreme Court precedent that allows the federal executive branch to mandate individuals get vaccinated?
In Jacobson v. Massachusetts, the Court determined that a small pox vaccine mandate did not violate the 14th Amendment.
However, it applied to a state law mandate and did not consider acts by the legislative branch.
308
Yes or no: Do you agree with me that the Supreme Court has ruled that gun ownership is an individual right?
Yes or no: Is the right to bear arms a fundamental right?
Heller/McDonald determined that individuals have the right to have a gun and that this right is fundamental.
309
Under the guise of a “public health crisis” President Biden recently announced a slate of gun control executive actions. During his announcement, President Biden said “the Second Amendment is not absolute.” Do you agree with that statement?
Do you agree with President Biden that the United States is facing an epidemic of gun violence?
Do you believe that modern-day gun violence trends should be considered in deciding cases about the Second Amendment?
I am unfamiliar with President Biden's statement and I do not know the context of the statement, so I can't speak to what he meant.
I don't have sufficient information to have formed an opinion as to whether there is an epidemic of gun violence.
I will consider whatever evidence the parties submit. If submitted, I would consider it.
310
Lawful gun ownership is our right as Americans but for many years the courts denied it. Activist judges treated the Second Amendment like a “second-class right,” to quote Justice Alito and a “constitutional orphan” to quite Justice Thomas. Do you agree that the Second Amendment is a right that’s central to who Americans are as free people?
What test should be applied in deciding whether a state-level regulation violates the Second Amendment?
Heller/McDonald determined that the right to have a gun is a core purpose of the 2nd Amendment.
Level of scrutiny:
1. If the law “amounts to a destruction of the Second Amendment right,” it is unconstitutional under any level of scrutiny;
2. A law that “implicates the core of the Second Amendment right and severely burdens that right” receives strict scrutiny;
3. A law that affects Second Amendment "in some lesser way," intermediate scrutiny applies.
(Young v. Hawaii, 992 F.3d 765, 784 (9th Cir. 2021)- Young found that open carry did not implicate a core 2nd Amendment right, and applied intermediate scrutiny)
311
Young v. Hawaii
Do you believe that the holding by the Ninth Circuit in Young v. Hawaii is consistent with the holding in District of Columbia v. Heller and McDonald v. City of Chicago?
o The Hawaii law that is being challenged requires citizens to show “an exceptional case” and a “reason to fear injury to [his or her] person or property” before being granted a concealed carry license. That sounds a lot like an unconstitutional infringement on a citizen’s Second Amendment right. So, now that you know the details of the Hawaii law, do you believe it will withstand a challenge before the U.S. Supreme Court, despite the Ninth Circuit recent decision in Young v. Hawaii?
Heller/McDonald left open the question whether the 2nd Amendment allows people the right to bear arms in public.
Heller/McDonald determined that the right to have an gun is a core purpose of the 2nd Amendment.
Level of scrutiny:
1. If the law “amounts to a destruction of the Second Amendment right,” it is unconstitutional under any level of scrutiny;
2. A law that “implicates the core of the Second Amendment right and severely burdens that right” receives strict scrutiny;
3. A law that affects Second Amendment "in some lesser way," intermediate scrutiny applies.
(Young v. Hawaii, 992 F.3d 765, 784 (9th Cir. 2021)- Young found that open carry did not implicate a core 2nd Amendment right, and applied intermediate scrutiny)
312
What role does race play in the kind of judge that you have been and the kind of judge you will be?
My race has never played a role in my determinations over the last 12 years that I have been a judge, and it will not in the future.
313
If confirmed, would you take past racial inequities or ongoing disparate impact into account in your decisions?
If the case I am deciding raises this as an issue, or it is probative of an issue before me, I would consider it. (One example may be college admission policies or the Voting Rights Act/ Section 2 of the 15th Amendment.)
Otherwise, I will consider only the evidence presented and the law that applies.
314
Are racial disparities evidence of systemic racism?
| o Is any law that results in a racial disparity racist?
I think we know, for example, of the disparate impact on people of color caused by the crack versus powder sentencing laws. This Committee, specifically Chairman Durbin and Ranking Member Grassley, has worked hard to eliminate these disparities. I commend that effort.
My understanding is these sentencing laws were enacted without knowing that they would cause a disparate impact.
Racial disparities may be evidence of discrimination, but whether it is racism would depend on whether it was intentionally designed to treat those of different races differently.
315
Would you agree or disagree with someone who said that most racial disparities in criminal convictions and sentences result from an unconscious racial bias of judges, juries, and other judicial decision makers?
We know from experience that the law imposing mandatory minimums in powder and crack cocaine cases, caused a disparate impact on people of color. My understanding is that the law was enacted to attempt to stop crack cocaine, which was believed to be a much more dangerous drug, and, lawmakers simply did not know the demographics of those committing these types of offenses and did not know the disproportionate impact on people of color that the law would have. Thus, I don't believe this law was enacted with racial bias.
316
Would it ever be appropriate to sentence a defendant who belongs to a historically disadvantaged group less severely than a similarly situated defendant who belongs to a historically advantaged group to correct systemic sentencing disparities?
A person should not receive a sentence based upon their skin color.
317
Have you had any conversations with individuals associated with the group Demand Justice, including but not limited to Brian Fallon, or Chris Kang, in connection with this or any other potential judicial nomination? If so, please explain the nature of those conversations.
I have had no communication with Demand Justice or anyone associated with it.
318
Suppose that there’s an academic study done that says that one of the stimulating effects of young men engaging in mass shootings is the internet. Suppose it says that if you eliminate all the postings on social media with the words “kill,” “murder,” “dead,” and “gun,” then that would help reduce mass shootings. Government says in response that any postings using these words must be approved by the government first. Is that constitutional? How do you analyze the issue?
Because it appears the law is content based, in evaluating it, I would apply strict scrutiny to determine the constitutionality of the law and I would consider whether their were other alternatives for the speaker to communicate their message.
(I could read these words on most ads for bug spray.)
319
On an issue like that—a right that’s not expressly stated in the Constitution but that’s very important—which branch of government do you think is better suited to make that decision? The decision being if I have a fundamental right to education: the judicial branch or the legislative branch?
It is the Court's job to articulate what the Constitution means and to express the rights found in the Constitution, whether explicitly or implicitly.
Congress can create constitutional rights through amendment, and, according to City of Boerne v. Flores, it can act to enforce a constitutional right. However, it cannot alter the meaning of a constitutional right.
(The Court has found in San Antonio v. Rodriguez, that there is not a fundamental constitutional right to public education. Seemingly, then, Congress may not enact a law, which says that, indeed, education is a fundamental constitutional right.)
320
Can judges take intent into account when evaluating the constitutionality of a law?
In Trump v. Hawaii, the Court did not exclude consideration of "intent" when evaluating an Presidential Proclamation. However, the Court held that the Proclamation will be upheld "so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds."
(The Court used the rational basis test because a foreign national has no constitutional right to entry into the US. The dissent notes that the Proclamation should have received strict scrutiny review because of the implications the comments made for the Establishment Clause.)
321
What are your general thoughts about justice in America today? How has it changed in your time?
In the 12 years on the bench, I have seen my colleagues work tirelessly to assure the litigants receive justice. I have done the same. I am proud of the work I have done and look forward to continuing to serve my community.
322
Can you explain the importance of following precedent, even if the precedent is one with which you may not personally agree?
Precedent assures the stability of the law and continuity over time. It ensures that judges cannot change the law just because they don't like it or it is contrary to their personal beliefs.
323
What role should a judge’s own life experience, or personal, political, moral, religious and social values play their decision-making process?
None.
324
Could you say a word about the temperament of a judge for people who come searching for justice?
Having an even temperament ensures everyone has the opportunity to speak their minds and to be heard. It ensures the judge is above the fray and can decide the case on the evidence and law at issue.
325
Do you believe Brown v. Board of Education was rightly decided? What about Roe v. Wade, Windsor, or Shelby County?
There are very few cases I feel a sitting judge can comment on. Brown is one, because it is no longer debatable as an enduring American tradition. Yes, it was rightly decided.
Marbury v. Madison
Loving v. Virginia
Bolling v. Sharp (decided on the same day as Brown, based upon 5th due process clause, rather than the 14th's equal protection clause, upon which Brown was decided)
Gideon v. Wainwright
326
Do you believe that there is a right of privacy in the Constitution? From what and where does it derive? And what is your understanding in general terms of the contour of that right?
The Court in Griswold v. Conn determined there is a right of privacy. The Court determined that the Due Process Clause of the 14th Amendment provides the contours of this right.
The analysis begins with whether the right asserted is "deeply rooted, in our nation's history and traditions.
327
How can we reconcile the notion that diversity on the bench is important with the idea that judges must be neutral and impartial as a core tenet of our justice system?
Diversity plays an important role-modeling function. Astronaut, Dr. Sally Ride said, "You can't be what you can't see." Having diverse courts increases the Court's credibility in the court. I've heard it said that justice exists as much upon perception as upon reality. A court made up of people from only one or few demographics, risks that the perception of fairness and the faith in the system will be lost.
328
At one point in the article, you note that differing perspectives offered by diversity can cause an impact on the outcome of the case and you cite to studies indicating that the presence of female judges in cases involving sexual harassment do lead to more favorable outcome for plaintiffs. Do you still agree that a judge’s gender will lead to different results in some cases?
I don't have an opinion as to whether a person's gender impacts their judicial decisions, except that mine hasn't.
My article noted that the studies of outcomes with panels which had a diverse judge, yielded mixed results. I did not study this area, but reported only on conclusions drawn by other authors.
329
At another point in the article you state that diversity on the bench “increases the likelihood that justice is meted out.” Do you believe that a bench that is not diverse, either intentionally or unintentionally, cannot mete out justice?
In my view, more consistent training of merit selection panels would be more likely to yield better decision-making by those panels. This can only work to ensure the likelihood that quality candidates are selected, with no one being excluded from the selection process
330
In Vazquez, the Ninth Circuit also reversed you because they found that the alleged conduct rose to the level of a Constitutional violation and that the officer was not entitled to qualified immunity. Why did you hold otherwise?
The facts alleged were troubling. However, the 9th Circuit had held repeatedly on facts significantly more egregious than those alleged in this case, did not state a constitutional violation. In reversing my decision, the 9th Court articulated a new standard for applying qualified immunity. If I am confronted with a similar context, I will apply this authority.
331
How to identify a fundamental right?
The Supreme Court has indicated that there is not a precise formula for doing so. (Poe v. Ullman, (1961)).
1. Courts are to exercise reasoned judgment in identifying fundamental interests.
2. History and tradition guide and discipline this inquiry but do not set its outer boundaries
Obergefell v. Hodges, 576 U.S. 644, 663–64 (2015)
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Do you think the Constitution should be used to create new rights?
Do you think it’s the courts’ responsibility to create rights to resolve a wrong they see?
What standard should be used to determine whether a constitutional right should be created by unelected federal judges or elected officials?
The Supreme Court's job, according to Marbury v. Madison, is to determine whether laws conflict with the Constitution. The Court's job is to determine whether the right at issue is protected by the Constitution, whether implicitly or explicitly.
Courts must decide the controversies presented to them, not to seek out controversies. Legislators should seek out the wrongs to correct.
333
Is there a fundamental difference between unenumerated rights, like the right to privacy or rights derived from substantive due process, and rights specifically enumerated in the Bill of Rights? Is one entitled to greater protection than the other?
I don't believe the Supreme Court has ever stated that enumerated rights are superior to unenumerated rights. However, the Court has said that laws that seek to infringe on these different rights are entitled to different levels of scrutiny.
(For example, in Heller, Justice Scalia set that the different levels of scrutiny should be employed for the type of infringement of the 2nd Amendment right is at issue.)
334
Do you believe Roe v. Wade is still binding precedent or do you agree with my Democratic colleagues that the one-and-a-half-page opinion in Whole Woman’s Health v. Jackson just overturned the precedent established by Roe v. Wade?
It appears that in Whole Woman's Health v. Jackson, Justice Alito's opinion was based upon a failure of proof related to the preliminary injunction, rather than the merits of the topic.
335
I’m now asking you a legal interpretation question, is the question of when life begins relevant to a legal discussion about abortion rights?
Is the question of viability, or the question of when life begins, an important legal question under the Supreme Court’s jurisprudence?
Where does the Supreme Court look to determine the question of when life begins?
Do you believe that an unborn child has rights under current Supreme Court precedent?
The question of viability is a key point in the pregnancy, as I understand it, when the government may prohibit abortion.
336
Do you tweet? Do you think it’s appropriate for a judge to use Twitter?
No, I don't tweet. Judges may due so within the bounds of judicial ethics.
337
Do you think prominent elected officials should make public comments about ongoing cases?
o You’re a current federal judge. I’m asking you: how would you take it if the President of the United States—Democrat or Republican—commented on your case while the jury was still hearing arguments. Or while they were deliberating. Do you think that would be bad for our justice system?
o Do you believe it was appropriate for President Biden to say he was praying for a guilty verdict in Derek Chauvin’s trial for murdering George Floyd?
People are entitled to debate the issues of the day and to state their opinions on them. Judges are given tools to protect juries from outside influences, such as jury instructions and even sequestration.
338
How do you define the term “microaggressions”? Do you think we should be restricting free speech at that “micro” level, simply because the speech may relate to race?
I am not familiar with that term.
Speech may be restricted for many reasons, for example the "clear and present danger" test of shouting "fire" in a crowded theater or if it incites or is likely to lead to imminent lawlessness.
339
Can officers enter the home without a warrant to seize weapons?
In Caniglia v. Strom, the Court held that the "community caretaking" exception to a warrant does not extend to officers entering the home and taking the owner's guns without consent or a warrant.
(The gun owner got in a heated argument during which he displayed a gun. Fearing he would attempt suicide, the police were called and he was taken in for an eval. While at the eval, officers entered the home and removed the guns, despite knowing the owner did not consent and refused to return them.)
340
When does a seizure occur under the 4th Amendment?
In Torres v. Madrid, the Court held that a seizure occurs under the 4th Amendment if there is an application of force with the intent to restrain the person, even if the force does not effect the arrest.
(Officers shot the person while she fled arrest, and, though she was injured, she escaped.)
341
May officers pursue a suspect into his home under the hot pursuit exception to a warrant?
In Lange v. CA, the Court held that whether officers may pursue a fleeing misdemeanor suspect into their home requires a case-by-case assessment of the "exigencies of the situation." Exigencies include acts by the officer to prevent imminent injury, destruction of evidence or escape.
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Skidmore Deference
The lowest level of deference afforded by the courts, because the agency’s interpretation of the statute is contained in documents that lack the force of law, such as policy statements, agency manuals, or enforcement guidelines.
The extent of the deference depends upon the interpretation’s ability to persuade.
