Circuit Court Nominee Says Anti-Muslim Prejudice Derailed His Confirmation

On Monday, Adeel Mangi, President Biden's nominee to fill a vacancy on the U.S. 3rd Circuit Court of Appeals, submitted a letter (full text) to the President acknowledging that the Senate will not confirm his nomination. (See prior related posting.) Mangi would have been the first Muslim to sit on a federal Circuit Court.  In his lengthy letter, Mangi attributed his inability to obtain Senate confirmation largely to anti-Muslim prejudice. The letter reads in part:

I saw in America a country where I could succeed based on my professional skill, hard work, and character regardless of my faith or background....

When my nomination then came before the Senate Judiciary Committee, I was prepared to answer any questions about my qualifications, philosophy, or legal issues. I received none. Instead, I was asked questions about Israel, whether I supported Hamas, and whether I celebrated the anniversary of 9-11. Even more revealing, however, was the tone. The underlying premise appeared to be that because I am Muslim, surely I support terrorism and celebrate 9-11.....

The pretext for these questions was that I had agreed to serve on an outside advisory panel for an academic center that was being established at a preeminent New Jersey Law School to combat bigotry and discrimination, including Islamophobia....

After Jewish groups came to my defense, these same attackers pivoted focus to a new absurdity, claiming that I supported the killing of police officers -- silently underpinned, in my view, by the notion that as a Muslim I surely support violence, including against law enforcement....

Resurgent efforts after the election towards confirmation were derailed by the deal in the Senate that denied all circuit nominees a vote....

 American Muslims are part of this nation's fabric and will not cower. This campaign was intended to make it intolerable for Muslims proud of their identity to serve this nation. It will fail. Our Constitution forbids religious tests for any Office of the United States and American Muslims will cherish that fundamental American value, even if others apply it only selectively....

Pittsburgh Post-Gazette reports on these developments.

Nominee To 3rd Circuit Who Would Have Been First Muslim Circuit Court Judge Will Not Be Confirmed by Senate

New Jersey Globe reports that President Biden's nomination of Adeel Mangi to the U.S. Third Circuit Court of Appeals will not be approved before the current Congressional session ends. Mangi, born in Pakistan, would have been the first Muslim to sit on a federal Circuit Court. Mangi is a partner in the New York law firm of Patterson Belknap whose website says in part:

Mr. Mangi has ... litigated numerous high-profile civil rights cases.  These included some of the most closely watched religious freedom cases of the Trump era, which involved two different Muslim communities denied permission to build mosques in Bernards Township and Bayonne.... Both cases eventually resulted in settlements under which the mosques were approved and the municipalities involved paid significant compensation to the affected Islamic groups.

New Jersey Globe reports:

... Mangi came before the Senate Judiciary Committee for two fraught hearings in December 2023 and January 2024.... Republicans interrogated Mangi over his role on an advisory board for the Center for Security, Race and Rights at Rutgers Law School, a controversial group that they said had become an antisemitic, anti-American hotbed under Mangi’s nose.

Top Senate Democrats ... defended Mangi from the attacks, noting that his role at the center was a limited one and accusing Republicans of using Islamophobia to sink Mangi’s history-making nomination. But three Democratic senators ... came out publicly against Mangi, which in such a closely divided Senate was enough to deny him the votes needed for confirmation.

Texas Judicial Conduct Commission Withdraws Reprimand of Judge Who Refused to Perform Same-Sex Weddings

As previously reported, in 2019 the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because she refused on religious grounds to perform same-sex weddings, while continuing to perform other weddings. The Commission stated that her conduct cast doubt on her capacity to act impartially to persons appearing before her as a judge.  Hensley sued contending that the Commission's action violated the Texas Religious Freedom Restoration Act as well as her free speech rights. In July 2024, the Texas Supreme Court held that the suit could move forward. (See prior posting.) Now, in Public Statement PS-2024-1, (Sept. 9, 2024), the Commission on Judicial Conduct has withdrawn the prior Public Warning "in light of the decision handed down by the Texas Supreme Court and the underlying facts and evidence...." However, according to a report yesterday by KWTX News, Hensley will continue her lawsuit. Quoting her attorneys, First Liberty Institute:

Unfortunately, Judge Hensley has incurred damages and attorney fees fighting for religious liberty, the Constitution, other judges who feared coming forward and her own reputation. We intend to complete the mission. Other judges who feared retaliation from the Commission and hid in the shadows may now be able to step forward and file their own cases seeking damages up to $10,000, plus costs and fees.

Justice of the Peace's Challenge to Reprimand for Refusing Same-Sex Marriage Officiation Is Remanded

 In Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., June 28, 2024), the Texas Supreme Court, in an 8-1 decision, held that a Justice of the Peace may move ahead with her suit brought against members of the Judicial Conduct Commission who issued a formal warning to the Justice of the Peace because of her refusal to perform same-sex marriages. The Justice of the Peace would perform marriages for heterosexual couples, but referred same-sex couples to others that would perform a ceremony for them. She contended that the Commissioners' actions violated the Texas Religious Freedom Restoration Act as well as her free speech rights. The court held that there was no requirement to exhaust administrative remedies before filing suit, nor was the suit against individual commissioners (as opposed to the Commission itself) barred by sovereign immunity.

Justice Blacklock, joined by Justice Devine, filed a concurring opinion, agreeing that as a procedural matter the case can move forward, but said that the Supreme Court should have reached the substantive claims and dismissed them.  He said in part:

There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist.

But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case. The Commission misinterpreted the Code of Judicial Conduct and violated Judge Hensley’s religious-freedom rights by publicly sanctioning her and by continuing to hold over her head the threat of a future, harsher sanction should she resume her marriage-referral policy. To her credit, Judge Hensley did not capitulate. And for the last several years, the Commission has doubled down again and again on this misbegotten case, all the way to the Texas Supreme Court.

Justice Young filed a brief concurring opinion. Justice Lehrmann filed a dissenting opinion contending that plaintiff failed to exhaust her administrative remedies before filing suit.

First Liberty Institute issued a press release announcing the decision.

Biden Nominates First Muslim Federal Appeals Court Judge

The White House yesterday announced several nominations that President Biden intends to make to federal circuit and district courts. Among the nominations was that of Adeel A. Mangi to the U.S. 3rd Circuit Court of Appeals.  As reported by NBC News, if confirmed by the Senate, Mangi will be the first Muslim American to serve on a federal appeals court.

SCOTUS' New Ethics Code Includes Guidance on Involvement with Religious Organizations

Yesterday, the U.S. Supreme Court announced the promulgation of a Code of Conduct (full text) for Supreme Court Justices. Several provisions in the Code give guidance on a Justice's involvement with religious and other organizations. The new Code provides in part:

Canon 2 (C): A Justice should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin....

Canon 3(B): ... A Justice should disqualify himself or herself in a proceeding... [when] The Justice knows that the Justice, individually or as a fiduciary, or the Justice’s spouse or minor child residing in the Justice’s household, has a financial interest in the subject matter in controversy.... An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization....

Canon 4(A): A Justice may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and government activities.... However, a Justice should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties, reflect adversely on the Justice’s impartiality, lead to frequent disqualification, or violate the limitations set forth below....

In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group....

Canon 4(B): A Justice may participate in and serve as an officer, director, trustee, or nonlegal advisor of a nonprofit civic, charitable, educational, religious, or social organization, subject to the following limitations:

(1) A Justice should not serve if it is likely that the organization will either be engaged in proceedings that would ordinarily come before the Justice or be regularly engaged in adversary proceedings in any court.

(2) A Justice should not give investment advice to such an organization but may serve on its board of directors or trustees even though it has the responsibility for approving investment ....

Canon 4(C): A Justice may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fundraising activities and may be listed as an officer, director, or trustee. Use of a Justice’s name, position in the organization, and judicial designation on an organization’s letter head, including when used for fundraising or soliciting members, is permissible if comparable information and designations are listed for others. Otherwise, a Justice should not personally participate in fundraising activities....

AP reports on the Court's new ethics code.

Texas Supreme Court Hears Oral Arguments from JP Sanctioned for Refusing to Perform Same-Sex Weddings

The Texas Supreme Court yesterday heard oral arguments (video of full oral arguments) in Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., Oct. 25, 2023). (Briefs filed in the case.) In the case, the state Court of Appeals affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, had cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. She contended that the Commission on Judicial Conduct violated her rights under the Texas Religious Freedom Act. (See prior posting.)  The appeals court held that the suit was an impermissible collateral attack on the Commission's order. Texas Tribune reports on the oral arguments.

Judge Refuses to Recuse Himself from New Orleans Archdiocese Bankruptcy Matters

AP and WWL-TV reported on Saturday that federal district court judge for the Eastern District of Louisiana, Greg Guidry, has refused to recuse himself from reviewing matters related to the bankruptcy reorganization proceedings of the Catholic Archdiocese of New Orleans. An investigation by the Associated Press found:

... [S]ince being nominated to the federal bench in 2019 by then-President Donald Trump, [Guidry] has given nearly $50,000 to local Catholic charities from leftover contributions he received after serving 10 years as a Louisiana Supreme Court justice.

Most of that giving, $36,000 of it, came in the months after the archdiocese sought Chapter 11 bankruptcy protection in May 2020 amid a crush of sexual abuse lawsuits. That included a $12,000 donation to the archdiocese's Catholic Community Foundation in September 2020 on the same day of a series of filings in the bankruptcy, and a $14,000 donation to the same charity in July of the following year.

At a pre-trial status conference last Friday, Guidry read from an advisory opinion he had received from the federal Judicial Conference's Committee on Codes of Conduct. It concluded that no reasonable person would question Guidry's impartiality. The Advisory Opinion said in part:

none of the charities to which you contributed some of your wind-down campaign funds has been or is an actual party in any proceeding before you....

AP had also reported that Guidry had once served as a board member on the Archdiocese's charitable arm for eight years.  The Advisory Opinion said, however:

[Y]our leadership as a board member of one of the charities ended 15 years ago, which is a significant span of time.

Guidry, who as district court judge would hear appeals from rulings of the district's bankruptcy judge, told the lawyers at the status conference:

Based upon that advice and based upon my certainty that I can be fair and impartial, I have decided not to recuse myself.

WAPO Says Judge Hid His Authorship of Anti-Abortion, Anti-LGBT Law Review Article

Washington Post reported today that Texas federal district court judge Matthew Kacsmaryk who issued last week's controversial opinion finding the FDA's approval of the abortion medication mifepristone invalid removed his name as author of a pending law review article as his nomination to the federal bench became imminent.  According to the Post:

As a lawyer for a conservative legal group, Matthew Kacsmaryk in early 2017 submitted an article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions.

The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

But a few months after the piece arrived, an editor at the law journal ... received an unusual email: ... Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute....

The article, titled “The Jurisprudence of the Body,” was published in September 2017 by the Texas Review of Law and Politics, a right-leaning journal that Kacsmaryk had led as a law student at the University of Texas. But Kacsmaryk’s role in the article was not disclosed, nor did he list the article on the paperwork he submitted to the Senate in advance of confirmation hearings....

A spokesman for First Liberty ... said that Kacsmaryk’s name had been a “placeholder” on the article and that Kacsmaryk had not provided a “substantive contribution.”....

The full Post article has additional details.

French Catholic Bishops Set Up National Canonical Penal Court

On December 5, the Conference of Bishops of France in a lengthy press release (full text in French) announced the creation of a National Canonical Penal Court.  According to National Catholic Reporter:

[The Bishops' statement] said the 20-member court, approved by the Vatican in September, would be tasked with judging "canonical offenses committed by clergy and laity" nationwide, such as acts of sacrilege, apostasy, schism, misuse of sacraments and teachings against the church's magisterium. The court aimed to "strengthen and harmonize" procedures formerly followed by diocesan and archdiocesan tribunals....

Establishment of the court, partly staffed by lay experts, was one of 45 recommendations by an Independent Commission on Sexual Abuse in the Church in its 2,500-page report released in October 2021.... 

However, while the new court would hear accusations involving adults, claims of sexual offenses by clergy against minors and canonical complaints against bishops would continue to be referred to the Vatican, the statement said.

The bishops' statement said church courts were "specific to the church's religious purposes," and complied with the country's 1905 church-state separation law.

House Hearing Explores Lobbying of Supreme Court by Religious Conservatives

Yesterday, the House Judiciary Committee held a hearing titled Undue Influence: Operation Higher Court and Politicking at SCOTUS. One of the witnesses was Rev. Robert Schenck who, in his written testimony, expanded on his previously published interview with the New York Times.  Schenck recounts his organization's attempts to gain access to Supreme Court Justices through donors to the Supreme Court Historical Society. He said in part:

My purpose was to develop relationships with the Justices who held positions sympathetic to religious conservatives' general concerns. In this way, I could gain insights into their thinking regarding the questions and cases that come before them and, perhaps, read their disposition toward the topics of most significant interest to me and my cohorts. Over time, I also thought my associates and supporters might be able to shore up the resolve of the conservative members. Our concern was for cases we adjudged beneficial to the country's culture, such as those restricting or banning abortion, euthanasia and assisted suicide, as well as same-sex relationships, especially marriage, and those expanding religious liberty, predominantly Christian practice, and public displays of Christian belief. The Historical Society was also a place where my cohorts and I could learn more about the customs, traditions, mores, and protocols of the Court, easing our entry into their social circles.

His testimony went on to describe his learning in advance about the outcome of the Hobby Lobby case. 

Another witness before the Committee, Mark R. Paoletta, in his written testimony sharply criticized Schenck's account, saying that Schenck has "built his career on deception and deceit."  NPR reports on the hearing.

En Banc rehearing Denied in Challenge to Courtroom Invocations

In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., Dec. 2, 2022), the U.S. 5th Circuit Court of Appeals by a vote of 12-3 denied an en banc rehearing in a case decided by a 3-judge panel in September. (See prior posting.) The panel held that a program devised by a Texas Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause.  Judge Higginson, joined by Judge Graves, filed an opinion dissenting from the denial of an en banc rehearing. They said in part:

None of the history cited by our court contemplates a judicial command “to stand and bow” for prayer, much less under threat of retaliation. At best, our court digs up “scattered evidence” that some nineteenth- and twentieth-century courts started with a prayer. Along with other evidence that prayers have been said and God invoked in courtrooms, our court thinks this is enough to prove that “courtroom prayer is consistent with a broader tradition of public, government-sponsored prayer.” I agree with the dissenting panel opinion that this history is too thin to justify that conclusion, but I would add that our court’s answer is pitched at the wrong level of generality....  [T]he question is whether “history shows that the specific practice is permitted,” not whether a general practice is permitted.

Disciplinary Warning to Justice of the Peace Who Would Not Perform Same-Sex Weddings Is Upheld

In Hensley v. State Commission on Judicial Conduct, (TX App., Nov. 3, 2022), a Texas state appellate court affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, has cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. Instead of appealing the Commission's public warning to a special court of review, as provided by Texas statutes, plaintiff filed suit in state trial court arguing that the Commission had violated her rights under the Texas Religious Freedom Act and that her conduct had not violated the Code of Judicial Conduct.  She sought damages and additional declaratory relief. The appeals court said in part:

The trial court correctly dismissed this impermissible collateral attack on the Commission’s order....

Because the evidence establishes that the Commission has in fact not threatened further disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the TRFRA waives the Commission’s immunity for her claim that threats of further discipline by the Commission have burdened her free exercise of religion.

Justice Goodwin filed a concurring opinion saying in part:

I would decide Hensley’s TRFRA claims on the ground that she did not comply with its notice provisions.... I do not agree with the Court’s analysis..., particularly the Court making an implicit finding by the Commission that its investigation and disciplinary action did not substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed any future claims.

KWTX News reports on the decision. 

ABC Surveys Religious Views Of SCOTUS Nominee Jackson

 ABC News features an article surveying what is known about Supreme Court nominee Ketanji Brown Jackson's religious beliefs. ABC points to religious references in two speeches out of 2000 pages of documents and one year of service on an advisory board of Montrose Christian School where Jackson focused mainly on fundraising.  ABC reports:

Friends and former colleagues close to Jackson have described her religious practice as private and deeply personal, neither a frequent topic of conversation nor an overly outward display. She identifies as a Protestant Christian, one Jackson associate, who asked to speak anonymously due to sensitivity of the matter, told ABC News.

French High Court Upholds Ban On Lawyers Wearing Religious Garb In Court

France's Court of Cassation, one of the country's four courts of last resort, this week upheld a rule of the Lille bar association that provides: "the lawyer may not wear with the robe either decoration or sign ostensibly manifesting a religious, philosophical, community or political affiliation or opinion."  One of the litigants was a law student who wears a hijab.  In Appeal No. 20-20.185, (Ct. Cassation, March 2, 2022), the court said in part:

[T]he Court of Appeal held that the will of a bar association to impose on its members, when they appear before a court ... to wear a uniform suit contributes to ensuring the equality of lawyers and, through this, the equality of litigants..., that in order to protect their rights and freedoms, each lawyer, in the exercise of his functions of defense and representation, must erase what is personal to him and that the wearing of the costume of his profession without any sign distinctive is necessary to testify to its availability to any litigant.

24. The Court of Appeal ... rightly deduced that the prohibition ... was necessary in order to achieve the legitimate aim pursued, namely to protect the independence of the lawyer and ensure the right to a fair trial, but was also, without any discrimination, adequate and proportionate to the objective sought.

Jurist reports on the decision.

Jackson Chosen By Biden For Supreme Court: Little Record On Religion Issues

President Biden has announced that he will nominate D.C. Circuit Judge Ketanji Brown Jackson to succeed Justice Breyer on the U.S. Supreme Court. She was a former clerk for Breyer.  Jackson has very little public record on church-state and free exercise issues.  I have been able to locate only one religion case (a Title VII case) in which she has written an opinion as either federal district or circuit court judge: Tyson v. Brennan, 306 F.Supp. 365) (D DC, Sept. 27, 2017).  It appears that the most extensive indication of her views on the religion clauses are found in her Responses to Questions for the Record in connection with her nomination to the D.C. Circuit (at pages 16, 18, 26, 27, 28, 35, 41, 49, 58, 63, 73, 74). There appears to be no reliable information available about Jackson's own religious affiliation.  Americans United for Separation of Church and State has issued a statement supporting her nomination.

First Muslim Appointed To Permanent Seat On Israel's Supreme Court

According to the Jerusalem Post, in Israel yesterday the Judicial Selection Committee appointed four new justices to the Supreme Court, one of whom is the first Muslim to serve as a permanent Justice.  The new Justice,  Khaled Kabub, fills the "Arab-Israeli seat" on the court which previously has been held by Christian Arabs (except for a temporary 9-month appointment in 1999 of Abdel Rahman Zoabi). Since 2003, Kabub has served as a judge on the Tel Aviv District Court where he has handled primarily cases involving economic crimes.

First Coptic Christian Picked As Head Of Egypt's Supreme Constitutional Court

 AP reports that Egyptian President Abdel Fattah al-Sisi has appointed Boulos Fahmy, a Coptic Christian, as Chief Judge of Egypt's highest court, the Supreme Constitutional Court. This is the first time a Christian has headed the Court.  According to AP:

President Abdel Fattah el-Sissi picked the 65-year-old Fahmy from among the court’s five oldest of 15 sitting judges, as is prescribed by law.

School Board Cannot Remove Teacher's Suit To Federal Court

In Vlaming v. West Point School Board, (4th Cir., Aug. 20, 2021), the U.S. 4th Circuit Court of Appeals held that a school board defendant cannot remove a former teacher's suit against it to federal court.  The teacher filed suit in a Virginia state court after being fired for refusing to call a transgender student by pronouns consistent with the student's gender identity. The teacher asserted only state law claims. At issue in the case were two federal statutory provisions on removal of cases to federal court. As to one of those provisions, the court's majority opinion said in part:

28 U.S.C. § 1443, the civil rights removal statute ... provides for removal of a civil action ... commenced in state court “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” The Board argues ... they either fired Vlaming in order to comply with Title IX, or they refused to permit Vlaming to discriminate, or to grant him an exception to their policies because of his religious beliefs, on the grounds that doing so would be inconsistent with Title IX. Precedent, however, precludes Title IX from being the type of “law providing for equal rights” referenced in § 1443(2).

The Supreme Court has limited the meaning of a “law providing for equal rights” in § 1443 to only those concerning racial equality....

Judge Floyd filed a concurring opinion, disagreeing in part with the reasoning of the majority. [Post revised to reflect concurring opinion.]

For First Time, Orthodox Rabbi Appointed To An Australian State Supreme Court

 ABC News and Hamodia report that for the first time, an Orthodox rabbi has been appointed to a Supreme Court of a state in Australia. Rabbi Marcus Solomon takes office today as the newest justice of the Supreme Court of the state of Western Australia. Rabbi Solomon, who has particular expertise in complex commercial matters, received his law degree in 1991. In 2006 he founded Perth Yeshivah, Western Australia's first post-secondary institution of Jewish studies and Talmudic law.