Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—November 21

1997—The Alaska supreme court rules (in Valley Hospital Association v. Mat-Su Coalition for Choice) that a hospital operated by a nonprofit corporation is a “quasi-public institution” and that the state constitution’s “right of the people to privacy” requires that the hospital allow elective abortions to be performed on its premises.

2013—By a 52-48 vote (with all Republicans and three Democrats voting no), the Senate abolishes the filibuster—the 60-vote cloture threshold—for lower-court and executive-branch nominees. The immediate effect of the abolition is to enable the confirmation of three D.C. Circuit nominees.

More broadly, Senate Democrats succeed in proving that they can dish it out but can’t take it. A decade earlier, now-Senate majority leader Harry Reid and other leading Democrats launched their unprecedented campaign of partisan filibusters against President George W. Bush’s judicial nominees, and they bitterly (and successfully) resisted Republican efforts in 2005 to abolish the filibuster. Reid, for example, voted against cloture at least 25 times on 13 different Bush nominees, but he is outraged that Republicans defeated a grand total of seven cloture motions on President Obama’s nominees.

2022—In a triumph of woke ideology over common sense, a California appellate court proclaims (in People v. Zarazua) that a trial court has a blanket duty to ensure that a prosecutor uses a defendant’s “preferred pronouns.” Never mind the confusion that might result. So if, say, a man is on trial for rape, and anyone looking at him would perceive him to be a man, but he now says that he identifies as female, the prosecutor’s questioning of the victim is supposed to go something like this:

Q. Tell me what happened next.

A. I looked behind me and saw a man approaching.

Q. What did she look like?

A. He looked exactly like him [pointing to the defendant].

Q. What was she wearing?

A. He had on shorts and a red t-shirt.

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