D.C. Circuit Review – Reviewed: “Archconservatives”

by Aaron Nielson — Sunday, June 12, 2016@Aaron_L_Nielson

Yesterday, while scanning my Twitter feed, I found myself reading a great article in The Atlantic: “The Senate Finally Passed Chemical Safety Reform.” This article is well worth your time, especially because the legislation is now headed to President Obama for his signature. As I was reading, however, I noticed something: two uses of the word “archconservative.” Now, if the word was only used once, I probably wouldn’t have even paused. But it was the second one that caught my attention: “The result was a political odd couple—a liberal giant and an archconservative who hates EPA regulations—and a bill that seemed to match the disparate poles.”

That sentence got me thinking. Why didn’t the article say “a conservative giant and an archliberal who loves EPA regulations”? And for that matter, why does the article say “liberals such as Sheldon Whitehouse and Ed Markey were lined up next to archconservatives David Vitter and Jim Inhofe”? Why the asymmetry?

The word “archconservative” is not generally thought of as a compliment: “arch- 1, has developed the senses ‘principal’ (archenemy; archrival) or ‘prototypical’ and thus exemplary or extreme (archconservative); nouns so formed are almost always pejorative.” “Arch” is also disproportionately used for conservatives. Google returns 1,810 hits for “archliberal” and 38,600 for “archconservative” (125,000 if the search is “arch conservative” versus 9,670 for “arch liberal”). And one of the first Google hits for “archliberal” is a play on “archconservative”: “Milton Friedman, Archliberal.” In The Atlantic article, the “liberal giant” referenced (Senator Frank Lautenberg) was just as far from being the median senator as was the “archconservative” (Senator David Vitter), at least per the National Journal 2012 U.S. Senate rankings. Yet somehow only one was an “arch.”

Now, at this point you may be nodding: “Well, that’s because reality has a liberal bias. So why not say so?” Or you may be guffawing: “What do you expect? You’re reading The Atlantic! Let Judge Posner explain this for you.” Or perhaps you’re just sighing: “Why even think about this? This is the age we live in. Let it go.”

Maybe I should let it go. But isn’t dividing the world this way—between friends and foes, between “giants” and arch-anythings—an impoverished way to live? All of us agree about much more than disagree. And even when we disagree (which is unavoidable, at least at the margins), there are better and worse ways of doing it. Put another way, sometimes we have to take sides, but doing so shouldn’t be our default setting. Instead, we should be able to recognize that just because we sometimes disagree, that doesn’t mean we need to brand each other as presumptive enemies, much less write each other off altogether. Long live pluralism!

For instance, a few months back I recounted watching Justice Scalia—who, it turns out, was also an “archconservative,” despite his many “archliberal” opinions—“laughing and joking with a bunch of very small people over a big bowl of candy.” In response, some were incredulous that Scalia of all people could be kind. But he was! Whatever you think of his legal conclusions (and no one agrees with all of them), Scalia was a funny person who enjoyed making children smile. Or if you come at things from “the other side,” I can say the same about Justice Sotomayor. Whatever you think of her jurisprudence, she was kind to my daughter when no one was looking. A person is much more than the sum of his or her opinions.

Indeed, because the world is complicated, how we approach each other should be more nuanced. Some factionalism may be inevitable, and not all methodological, ideological, or instinctual differences can be solved with a handshake. Even so, we should all bite our tongues a bit more and be more willing to give each other the benefit of the doubt. In fact, I’m picking on The Atlantic here only because the article was so close to being the perfect example of what I have in mind: working together to find common ground. Although we disagree about many things, there is a lot of common ground to be found if we only look for it.

The D.C. Circuit’s cases well illustrate this point. The world is not always “us versus them.”

The most important case this week, for instance, is United States v. Nwoye, authored by Judge Kavanaugh. Now Kavanaugh says nice things about Justice Scalia in public. Talk about “ultraconservative”! (On the other hand, so does Justice Kagan.) So when it comes to an issue like “battered woman syndrome” as a defense to criminal behavior, everyone knows how he will vote, right? Yet this week, Judge Kavanaugh—joined by Judge Edwards—wrote an opinion concluding that it was ineffective of counsel for a defense lawyer to not raise this species of a duress argument. I am confident that Kavanaugh’s opinion will be cited in courts across the United States. Ahh, you say, “but what about the dissent?” That was by Judge Sentelle, another “archconservative.” Yet he did “not dispute the majority’s extension of the relevance to a duress defense in appropriate cases,” but simply doubted whether a showing of ineffective of counsel could be made on these particular facts. Both opinions make fair points and are models of respectful disagreement.*

Next consider this week’s NLRB cases. In two cases, unanimous D.C. Circuit panels—composed of judges nominated by both Republican and Democratic presidents—ruled against the NLRB, at least in part. In Camelot Terrace, Inc. v. NLRB, Judge Henderson (joined by Judges Rogers and Williams) concluded that the agency “lacks authority to require the reimbursement of litigation costs incurred during Board proceedings,” but also held, among other things, that “that the Board may require an employer to reimburse a union’s bargaining expenses pursuant to its remedial authority under section 10(c) of the Act.” And in Aggregate Industries v. NLRB, Judge Randolph (joined by Judges Wilkins and Ginsburg) concluded that the Board erred when it determined that the company “changed the scope of the bargaining unit” and “had not given the union a fair chance to bargain.” The panel, however, did side with the NLRB as to whether the company was right to “change[] the affiliation of two sweeper truck drivers from the Teamsters union to the Laborers union.” Not everything has to be trench warfare.

Wallaesa v. FAA is also an interesting case. Judge Brown (for whom I clerked) is also an “archconservative,” but she is happy to defer to the FAA. After all, as she explained (joined by Judges Wilkins and Randolph), “In the catalog of human endeavors, few activities are as fragile as flight. The air offers no mercy for mistakes and no second chances. Flight is, as Winston Churchill observed, ‘an extremely dangerous, jealous and exacting mistress,’ demanding unfettered attention and respect. In that unforgiving environment, otherwise minor disruptions may threaten major damage.” The panel thus upheld an FAA civil penalty against a disruptive passenger “[i]n view of the FAA’s broad statutory authority over aviation safety, and mindful of the precariousness of human flight.” Indeed, “without some means of controlling disruptive passenger behavior, the FAA could not hope to promote—much less to provide for—the safety of passengers encased in a metal capsule hurtling through the air.” (Note, talk about a creepy—indeed, terrifying— flight. Read the full opinion for the details. Here’s a hint: “Wallaesa began yelling that he loved Jaime [who, it seems, was a perfect stranger], blaming the crew for keeping him from her.” Rash acts of “romance” are not charming. Cf. This guy.)

There were two additional criminal cases this week. In United States v. McKeever, Judge Edwards (joined by Judges Pillard and Wilkins) largely upheld a decision in a so-called “reverse sting operation.” The panel upheld a “Gun Bump” at sentencing even though the defendants did not actually possess any guns: “actual possession is not required for the Gun Bump to apply.” To be sure, the panel concluded that the district court should have considered “an entrapment” defense as a matter of its sentencing discretion, but as to the guidelines, the panel was firm. In United States v. Knight, Judge Kavanaugh—joined by Judges Henderson and Rogers—affirmed the district court. There is an interesting discussion of the Speedy Trial right works in D.C., where that particular U.S. Attorney’s Office can prosecute in both “state” and “federal” court. This case is worth reading if you practice criminal law in D.C. But my takeaway is that there is nothing “arch” about these opinions, even though the context could have been charged; it is just judges being judges.

Anyway, that’s the D.C. Circuit this week. Now I’m going to turn on Joan Jett & the Blackhearts, head outside to water my “freeloading chickens,” and see if I can figure out the kids’ half-pipe we just had rebuilt. The world is bigger than politics.

* It is interesting that this case came on a writ of a writ of coram nobis. As the Supreme Court has explained, “The writ of coram nobis was available at common law to correct errors of fact. It was allowed without limitation of time for facts that affect the ‘validity and regularity’ of the judgment, and was used in both civil and criminal cases.” It no longer applies in civil cases, at least at the federal level, but it can be used in the criminal context “to collaterally attack a criminal conviction for a person . . . who is no longer ‘in custody’ and therefore cannot seek habeas relief under 28 U.S.C. § 2255 or § 2241.”

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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