A Brief, a Letter, and a Comment | Center for Equal Opportunity

The brief: A few weeks ago I wrote about the Center for Equal Opportunity’s amicus brief in Hand v. Scott; see this link. The basic claim there is that it the State of Florida’s system of restoring the right to vote to felons on a case-by-case basis is too “discretionary” and not mechanical enough; as we pointed out, however, it’s hard to see how it can be mechanically determined if a felon has turned over a new leaf, and besides this an odd argument from the side of the aisle that opposes, for example, sentencing guidelines because they do not give judges enough discretion. Last week, Florida’s appeal in the case was argued in Atlanta, and the author of our brief – Jack Park – provides this summary of how that argument went:

On July 25, 2018, the U.S. Court of Appeals heard oral argument in a case challenging Florida’s process for restoring the rights of convicted felons, Hand v. Scott. The lower court found that the process was facially unconstitutional in violation of the right to vote, which it grounded in the First Amendment to the U.S. Constitution, and told Florida to devise neutral and specific standards to govern the restoration of voting rights. Before the district court’s order took effect, the Eleventh Circuit stayed it pending the result in the appeal. Florida appealed, and CEO filed a friend-of-the-court brief in support of Florida.

Oral argument was heard by a three-judge panel composed of Eleventh Circuit judges Ed Carnes and Lisa Branch, who were joined by a visiting district court judge, Judge Darrin Gayles, from the Southern District of Florida.

In its argument, Florida pointed out that no prior case has accepted the proposition that clemency in general, and the restoration of voting rights as part of the clemency process in particular, must be guided by specific standards. It also pointed to the serious doctrinal and policy effects that would follow from affirming the lower court’s ruling. Such an affirmance would affect the constitutionality of every other species of executive clemency, including the President’s pardon power and the systems of other states. In the oral argument, Florida was primarily questioned by Judge Gayles, who wanted to know about the laws of other states, including whether they treated the restoration of voting rights separately from the rest of the clemency process.

The Hand plaintiffs asserted that the right to vote is protected by the First Amendment, and that it is unconstitutional to allow government officials to exercise “unfettered discretion” in deciding which felons might be allowed to vote and which might not. No single case supports the Hand plaintiffs case, but two lines of precedent were said to. In the end, the only solution that would not involve the exercise of some discretion would be to automatically restore the right to vote to convicted felons.

The Hand plaintiffs essentially want the Eleventh Circuit to be the first to adopt the rule that clemency processes must be guided by specific and neutral standards to be constitutional. If the Eleventh Circuit accepts the Hand plaintiffs’ invitation, more challenges to discretionary clemency process will follow.

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The letter: After Brett Kavanaugh, a graduate of Yale Law School, was nominated to the Supreme Court, the law school issued a congratulatory press release – which was quickly condemned by an open letter from alumni and others on the left side of the aisle. So those alumni who supported the nomination – I’m one, and my participation was noted in a couple of news stories – equally quickly released our own open letter, which you can read here:

Letter from Yale Students, Alumni, and Faculty in Support of Judge Brett M. Kavanaugh
July 12, 2018

We write as students, alumni, and faculty proud of our alma mater. We join Yale Law School in its praise of distinguished Yale alumnus Judge Brett Kavanaugh.

Judge Kavanaugh is eminently qualified to serve as a Supreme Court justice. Judge Kavanaugh, a graduate of Yale College and Yale Law School, is one of our nation’s most distinguished jurists. In his twelve years of service on the United States Court of Appeals for the D.C. Circuit, he has demonstrated a principled approach to interpreting the law. He has reached legal conclusions free of political partisanship. Judge Kavanaugh has devoted his professional life to upholding the rule of law and our Constitution.

Throughout his time on the federal bench, Judge Kavanaugh has been a valuable friend to the Yale community, visiting frequently to speak on important topics and to encourage admitted students to begin their legal careers in New Haven. More importantly, Judge Kavanaugh has been a faithful servant to his community in the Washington D.C. area. He is a basketball coach for his daughters’ teams, and a regular volunteer with Catholic Charities. As the many students he has mentored will attest, he is a person of deep conviction and integrity.

We are proud of Judge Kavanaugh’s nomination, and believe that his accomplishments and qualifications speak for themselves.

We admire the Yale Law faculty who have spoken in support of Judge Kavanaugh’s qualifications and commitment to the Constitution. Some selections of our faculty’s comments are below [faculty comments follow].

In our deeply polarized climate, these respectful, civil, and entirely accurate comments are a breath of fresh air.

Judge Kavanaugh is a distinguished jurist qualified for the highest public service. He should be given the fair, principled, and swift consideration he deserves.

Sincerely, [signatories listed]

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The comment: Finally, the Trump administration recently asked for comments on the “disparate impact” standard that the Obama administration put in place for enforcing the Fair Housing Act (the disparate-impact approach to civil-rights enforcement considers a standard that results in statistical disproportions to be illegally discriminatory even if the standard is nondiscriminatory on its face, in its intent, and as applied).

Here is the comment the Center for Equal Opportunity submitted:

We agree that the current standard should be reconsidered and revised. The disparate-impact approach to civil-rights enforcement is misguided as a matter of policy and inherently inconsistent with the constitutional presumption against race-based decisionmaking; thus, it should be used here no more than is required by the Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. Such limitations — and the policy, statutory, and constitutional reasons for them — are discussed in Roger Clegg, “Silver Linings Playbook: ‘Disparate Impact’ and the Fair Housing Act,” Cato Supreme Court Review (2014-2015), pp. 165-194 (see, e.g., pp. 183-185). Link: https://object.cato.org/sites/cato.org/files/serials/files/supreme-court-review/2015/9/2015-supreme-court-review-chapter-6.pdf

Those who wish to endorse our comment or file other comments themselves (the deadline is August 20) may do so here.

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