The sham of judiciary nomination hearings

by Senator Sheldon Whitehouse, (D-R.I.)

*These remarks were given by Senator Whitehouse during a Senate Judiciary Committee Nomination Hearing on November 1, 2017

Our Senate Judiciary nominations hearings, I believe, have become something of a joke. Nominees come to us readied for our hearings by "murder boards" that taught them how to withstand all five minutes of questioning by Senators. Nominees are often packed into panels, so a Senator’s five minutes get spread across multiple nominees. The questioning of nominees is often simple and rote. A fundamental premise in the proceedings is that there is inevitably “law” that can be impartially applied to “facts,” and there endeth the lesson.

The falsity of this premise can be shown in two words: Merrick Garland. If judging were all about impartial application of law to facts, why the desperate effort to stop the most qualified judge to be nominated to the Supreme Court in our lifetimes? Why does the Supreme Court majority of five Republican appointees rule so predictably on so many issues important to big Republican interests? Why did candidate Trump need to make a list of whom he’d appoint to the Court to get conservative backing? Why are gobs of political dark money spent by special interests to push for the confirmation of judicial nominees? All of this political behavior around judicial appointments belies the notion that it’s just about impartially applying law to facts. Yet we’re supposed to accept the pretense.

The pretense is belied not just by political behavior, but also by what practicing lawyers experience day to day. Of many possible examples, here are particularly obvious ones.

Trial judges have virtually unlimited discretion to decide on the credibility of witnesses, and if they are predisposed against black people or police officers, that will affect credibility determinations in, for instance, police brutality cases. A case is not made up of “facts,” but of a cloud of often contradictory evidence from which “facts” must be drawn – usually through the prism of a witness's credibility. Judicial bias can affect credibility determinations, and thus case outcomes.

Procedural matters such as discovery rulings and case scheduling can allow favoritism or predisposition to creep in and affect a case. A court can allow a well-heeled defendant to batter a plaintiff into submission with endless motions and discovery – the "paper blizzard" defense.  Jury instructions can be given in ways that lean one way or the other (but still survive appellate review).

Judges sometimes throw out jury verdicts because, well, they’re just too big, or too disruptive of the status quo. Cases often require judges to consider multiple factors, and how the different factors are weighted falls within the discretion of the judge – at least until the weighting becomes so slanted that it tips the very generous “abuse of discretion” standard of review. (If it were not clear enough that discretion is involved in all these decisions, the name of the “abuse of discretion” standard ought to settle that question.) Judges can even refuse to apply the law as written, if it would lead to an “absurd” result.

In practice, there’s simply no way to prevent a judge’s unconscious biases, life experiences, and personal beliefs from influencing his or her decision-making.  Indeed, the law routinely asks judges to give tangible meaning to vague and general terms like “due process” and “liberty”; and to decide whether searches or seizures are “reasonable,” whether a particular governmental purpose is “compelling,” whether a given punishment is “cruel and unusual,” or whether a governmental act or omission “shocks the conscience.”

Judges on appeal are customarily asked to consider the consequences of their decisions by litigants anxious to steer a court away from an undesirable decision. Consequence-based advocacy fills amicus curiae briefs in the United States Supreme Court. There is no question of law in a judge’s evaluation of the likelihood, or the merits and demerits, of those suggested consequences. If all that were going on was a simple application of facts to law, consequences would have no place, and well-heeled amici would not waste their money on those briefs.

These life experiences of practicing lawyers are echoed by learned scholars and judges. The judgment calls made by judges, as one scholar wrote, “inescapably are influenced by – if not based on – a judge’s own views and experiences.”

One prominent aspect of the hearing charade is asking nominees to forswear “judicial activism.” But as scholar Erwin Chemerinksy put it, “any first year law student knows that judges make law constantly.” Our constitutional history is riddled with activism that moved constitutional understanding forward: consider the before-and-after of Brown v. Board of Education, or Loving v. Virginia, or Roe v. Wade, or recently, Obergefell v. Hodges.

In itself, “anti-activism” promotes its own bias: that the mores and social norms of two centuries ago should receive preference today in constitutional analysis. That preference for old days and old ways is itself a policy choice.

“We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own,” wrote Judge Benjamin Cardozo in his seminal work, The Nature of Judicial Process. Cardozo rightly recognized that many cases are squarely controlled by precedent, where “the law and its application . . . are plain.” He described these cases as an exercise in comparison, to match the colors of the case at hand “against the colors of many sample cases” in the jurisprudence. “It is when the colors do not match,” Cardozo observed, “when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.”

Judge Theodore McKee, of the United States Court of Appeals for the Third Circuit, has reflected on Chief Justice Roberts’s metaphor that a judge’s role is merely to “call balls and strikes.” While “noble” in principle, McKee explains, the “the ideal of objective adjudication is actually counterproductive because it assumes a reality that is based upon an abstract principle rather than our everyday reality.” Like Cardozo, McKee acknowledges that in many cases, the facts and law are so clear that there is “little room for a judge’s personal view to impact his or her decision.”  But he urges judges to “candidly admit that there are other instances where there is enough play in the factual or precedential joints to allow personal beliefs to affect our adjudication.” Judges cannot just call “balls and strikes,” because they may not share a common strike zone.

Judges – including lower court judges – do make law. The common law – our founding tradition – is judge-made law. Justice Felix Frankfurter put it well: “one of the evil features, a very evil one, about all this assumption that judges only find the law and don't make it, often becomes the evil of a lack of candor. By covering up the lawmaking function of judges, we miseducate the people and fail to bring out into the open the real responsibility of judges for what they do.”

So let’s be candid. What we want, I think, is judges who hold American democracy first in their heart; judges who understand that there is abundant scope for the influence of their bias, prejudice, and political, philosophical, or religious views yet will endeavor to be always fair notwithstanding; judges who are willing to make disruptive or uncomfortable rulings if justice requires rather than bow to power or convention; judges who understand that often the courtroom is the public’s last defense when powerful political interests have overwhelmed the legislative and executive branches; and judges who can honestly guarantee that the big special interests who bring so much pressure to bear on the judicial nomination process will not receive favor.

Too often, we do not see this. And too often, the charade that Judiciary hearings have become never touches on these problems, and foments a Tooth Fairy view of adjudicating that is, as Justice Frankfurter said, a disservice to the nominees, the committee, to the public, and to the country.

Understanding + Empowering: How to move forward

by James Willis Alt, Vice President of The University of Toledo College of Law ACS Student Chapter and Katherine LaRosa, President of Chicago-Kent College of Law ACS Student Chapter

What can progressive law students do to better understand bigotry and intolerance and promote diversity? This is the question we sought to answer at this year’s ACS Midwest Regional Student Convening, which drew students to Chicago from across the Midwest. We assembled attorneys, judges, and legal advocates currently working on the front lines of progressive advocacy to discuss the effect and impact of bigotry in our often divisive and polarized political discourse.

We kicked off the convening Thursday night with remarks about restoring voting rights, the role of state attorneys general, and equity in the law.

On the Friday morning panel, “Fighting Bigotry”, John Bouman, president of the Sargent Shriver Center on Poverty Law, advocated that students should not “stay in their lane” regarding intolerance and bigotry because social change comes from progressive advocates fighting for others. Further, panelists Sufyan Sohel, the deputy director & counsel at CAIR Chicago and Melody Gomez, a Chicago attorney and author of Brown Girl Talks blog discussed what students can do to engage and empower our community to effect change.

Camilla Taylor, senior counsel for Lambda Legal, delivered the keynote address. Ms. Taylor discussed pending Supreme Court cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that could put anti-discrimination laws, and the people they protect, at risk across the country.

One highlight from the convening was the vibrant discussion of the ACS Gavel Gap report, where local federal and state judges discussed diversity on the bench. Moderated by Juan Thomas, president of the National Bar Association, the panel was composed of federal and state judges who discussed how bigotry has impacted their careers and what law students can do to promote inclusion and equity in the legal community.

Finally, student leaders from several ACS student chapters in the Midwest discussed what students can do to affect change and promote a progressive dialogue on our campuses. All in attendance walked away from this event with plans on how to further these initiatives in our communities and lives. 

Wisconsin judicial pick violated fair process

by Jeff Mandell, partner at Stafford Rosenbaum LLP and chair of the ACS Madison Lawyer 

*A shorter version of this post was distributed in Wisconsin by the Progressive Media Project and previously published by The Capital Times, the LaCrosse Tribune, and the Sun Prairie Star. 

The U.S. Constitution grants the President power to nominate judges for the federal courts “by and with the advice and consent of the Senate.” In Wisconsin, for nearly 40 years all presidents, regardless of party, have considered candidates vetted and approved by a nominating commission run by the State Bar in cooperation with both Wisconsin Senators. President Trump unfortunately broke this practice by nominating Michael Brennan for a Wisconsin vacancy on the U.S. Court of Appeals for the Seventh Circuit, though the nominating commission did not approve Brennan. Indeed, Brennan interviewed with the White House before even submitting his name to the nominating commission that ultimately did not recommend him.

This Wisconsin seat on the Seventh Circuit is the longest-standing vacancy on any federal court of appeals, open since January 2010. The seat sits empty despite prior qualified nominees. Senator Ron Johnson blocked President Obama’s first nominee, Victoria Nourse, in 2011. He complained that the commission approved her before he was elected. Senator Johnson then insisted that the commission itself was unfair, contrary to more than 30 years of precedent. On that basis, he prevented the commission from even convening to consider candidates. When Senator Tammy Baldwin was elected, she compromised with Johnson and restructured the commission. Under their agreement, the commission now includes three members appointed by each Senator, and five of the six commissioners must approve recommending any candidate for nomination.

President Obama later nominated Madison attorney Don Schott, who had received the requisite approval from five members of the reconstituted nominating commission. Schott’s nomination received majority support in the Republican-dominated Senate Judiciary Committee, led by Chair Chuck Grassley (R-Iowa). However, Johnson refused to advocate Schott’s confirmation, which expired before a full Senate vote.

When asked about his tepid support for Schott’s confirmation, Johnson expressed concern that the commission had not approved at least four candidates for the President’s consideration. However, now that the White House has ignored the bipartisan commission process entirely and nominated Brennan—who did not receive commission approval—for the same vacancy, Johnson has expressed enthusiastic support. In doing so, he has rebuked the very commission process he first demanded be rewritten to his specifications and then insisted must be followed to the letter under President Obama.

President Trump’s disregard for Wisconsin’s longstanding merit-based, bipartisan commission process is disappointing. The State Bar nominating commission seeks to mitigate the role politics and privilege play in choosing Wisconsin’s federal judges. It gives community members with vast knowledge of the judiciary and our state’s legal community a voice in identifying candidates with the intellect, character, and local support to preside over our courts. And it leaves the final decision among those candidates to the President, with the advice and consent of the Senate, as our Constitution provides.

Rather than allow Wisconsin’s commission to work, President Trump instead has delegated responsibility for choosing lifetime judicial appointees to Leonard Leo, the Executive Vice President of the Federalist Society, a right-leaning legal organization. (Brennan helped found the Milwaukee chapter of the Federalist Society.) Leo’s mission, in his own words, is to make the courts “unrecognizable.” Leo and the Senate majority want to ensure that the courts rule on critical issues including elections, the environment, money in politics, health care, voting rights, marriage equality, immigration, and reproductive rights in a way that benefits their political ideology. To facilitate the transformation of the judiciary, they are devastating longstanding norms that have served the Senate, our courts, and the country well. Senator Johnson is complicit in this process.

Senator Baldwin has decried President Trump’s decision to “turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges.” Baldwin stands on firm ground, both constitutionally and historically, in defending her role to advise and consent on this vacancy. So far, Baldwin has not submitted her “blue slip” on Brennan. (Under long-standing practice, both home-state Senators must return blue slips before the Judiciary Committee will consider a nominee. The last time a nominee was confirmed over a home-state senator’s withholding of a blue slip was in 1936.) Baldwin has noted that, in the absence of commission approval, she needs to engage in thorough review before approving a nominee for a lifetime position on a federal appellate court.

The White House and the Senate’s Republican majority are determined to push through politically conservative nominees, without a thorough vetting and at the expense of the State Bar commission process. Lifetime appointments to the federal bench will reverberate decades beyond the end of this Congress and the Trump presidency. Wisconsinites should withhold support from nominees who have not undergone commission review, which Johnson himself has described as “a fair process” designed to ensure we have “qualified judges rather than candidates who were on either extreme.” Given the stakes, both in Wisconsin and across the country, Baldwin’s continued leadership in preserving advice and consent is vital.

President Trump’s Deregulation Agenda Clashes with the Cure for the Opioid Epidemic

by Valarie Blake, Associate Professor of Law, West Virginia University College of Law

President Trump’s speech on the opioid epidemic last week was seen by many as an unproductive harkening back to the war on drugs. Trump focused on illicit street drugs, decrying criminals who deal those drugs and arguing that his border wall will stem the flow of heroin from Mexico. He stressed personal responsibility on the part of drugs users and threatened criminal liability, also promising a national campaign to discourage opioid abuse akin to President’s Reagan’s “Just Say No” campaign in the 1980s. Meanwhile, his declaration of a national public health emergency came without any commitment of federal funding.

Trump has good reason to frame the opioid epidemic as a black-market issue. His voters are the population hardest hit by the opioid epidemic who desperately need action, and these same voters embraced an agenda that would have the president address this crisis as we have addressed other illegal drugs.

Unfortunately, the cures needed for the opioid epidemic are different and are not so easily reconciled with Trump’s promises to roll back regulation and shrink government. Prescription painkillers are a legal market and the opioid epidemic is a story of under-regulation and under-enforcement of federal and state law. Federal agencies decide how many opioids to make, pharmaceutical companies make them, drug wholesalers distribute them to state-licensed healthcare providers who prescribe them, and patients use public or private insurance to pay for these legal pills at pharmacies. Every step in the stream of commerce of opioids is lawful and above ground (with the exception of those pills that get diverted and sold, or the heroin that many have turned to as a cheaper and more readily available alternative to prescription drugs). Deregulation is dangerous.

Take, for instance, the recent Washington Post and 60 Minutes investigation into the Ensuring Patient Access and Effective Drug Enforcement Act. This Act makes it nearly impossible for the DEA to freeze shipments of dangerously high quantities of opioids or to halt drug companies’ operations when they fail to comply with law, according to DEA Chief Administrative Law Judge John J. Mulrooney in a draft article. This effort to curb DEA power by drug lobbyists came after the DEA had fined drug wholesalers hundreds of millions of dollars for failing to report drug orders of “unusual size, orders deviating substantially from a normal pattern, and orders of unusual frequency.”

Without stringent enforcement by the DEA, we had cases like West  Virginia, where more than 780 million hydrocodone and oxycodone pills poured into the state over a six-year period, amounting to 433 pills per citizen and driving overdose deaths of 1,728 people. Three drug wholesalers supplied these medications to state clinics and pharmacies, ignoring rules set by the state’s Board of Pharmacy that required they report suspicious amounts to the Board who, in turn, never enforced the rules. While those events happened prior to the Trump administration, they are exemplary of ways in which under-regulation and under-enforcement of the laws led to the opioid crisis and why further efforts to deregulate could prove a tremendous roadblock in achieving any progress in the future.

Under the Trump administration, efforts to repeal and replace the Affordable Care Act (ACA) or to stymie its efficacy would have immediate and irreversible harms for opioid users. Drug users have historically faced discrimination in accessing substance abuse treatment, which is integral to stop the growing rates of addiction and overdose. The ACA is the first law to mandate that insurers cover mental health and substance use disorder services through its essential health benefits provision. (Prior to the ACA, a law called the Mental Health Parity and Addictions Equity Act only mandated that insurers who choose to provide such services cover them in ways that are equivalent to how they cover other services.) An ACA repeal is an open invitation to insurers to stop providing access to these sometimes costly therapies, leaving those suffering from addictions with no opportunity for recovery.

A repeal of the Medicaid expansion would have similar effects, as a portion of opioid abusers are covered by Medicaid. The antidiscrimination protections in the ACA that prohibit health-status discrimination are also critical for opioid users. Private and public insurers have been doing tremendous work to create algorithms that can identify individuals who are at risk of abusing opioids so as to provide early interventions that avoid addiction. As I have argued elsewhere, this is an extremely promising and productive effort by insurers so long as protections are in place to prohibit insurers from using this information to then discriminate against substance abusers. An ACA repeal or replacement might allow health status discrimination to be reintroduced into insurance markets and insurers would have blueprints to identify which patients are at risk of costly addiction services and to remove them from health plans or increase their premiums.

While an ACA repeal and replacement seems to be on hold, efforts to strip away enforcement of the ACA through executive orders are also proving harmful to the opioid crisis. Trump’s October 12 Executive Order allowed certain innovation to occur in the insurance market which many believe will lead consumers to be able to drop ACA-compliant health coverage in favor of less robust plans. This might lead healthier people to drop out of more restrictive markets, driving up the cost of plans that cover more robust services like addiction treatment. Trump has also promised to end cost-sharing subsidies to insurers, which is expected to drive up premiums (and ultimately drive up the cost the federal government has to pay to subsidize those premiums). The effect may be costly, less easily accessible health insurance and instability in the markets.

While Trump may have promised deregulation, he owes his voters salvage from the wreckage of this horrible crisis. Experts in the opioid epidemic should emphasize how deregulation is harmful and ineffective in the context of opioids and why opioids require different remedies from illegal drug markets.

Robert Mueller’s Message to Paul Manafort: Cooperate Now or You’ll Regret It

by Barbara McQuade, Professor from Practice, University of Michigan Law School, and former U.S. Attorney for the Eastern District of Michigan

*This piece was originally published on The Daily Beast.

The unsealing of the indictment charging former Trump campaign chairman Paul Manafort was only the second-most significant piece of news Monday.

The more significant news was the guilty plea of former Trump campaign adviser George Papadopoulos, who was arrested in July and entered a guilty plea about three weeks ago. The documents revealing those facts were also unsealed today. And the timing of the two being filed on the same day is likely no coincidence.

While the Manafort charges are important because of the role he played as one-time Trump campaign chairman, the charges themselves allege improper financial transactions and failure to disclose foreign lobbying activities, offenses that are unrelated to the Trump campaign. Rick Gates, Manafort’s business partner and a Trump campaign official, was also charged. The charges against Manafort may provide leverage to encourage him to cooperate in the investigation, but the charges against Papadopoulos relate directly to connections between the Russian government and the Trump campaign.

Papadopoulos has pleaded guilty to charges of making false statements to the FBI in connection with its investigation into Russian interference in the election. The false statements relate to his interactions with an overseas professor with substantial connections to Russian government officials and a female Russian national that be believed had connections to the Russian government. The documents state that the professor told Papadopoulos that he had “dirt” about Hillary Clinton in the form of “thousands of emails.” Papadopoulos admitted to lying about the timing and substance of his conversations with these individuals, and about his efforts to use the professor’s connections to arrange a meeting between the campaign and Russian government officials. Not quite collusion, but getting closer.

The Papadopoulos plea agreement makes reference to his cooperation. It is likely a strategic decision by Mueller to unseal both sets of charges on the same day. Mueller seems to be sending a message that cooperators get deals, and that Manafort faces additional potential criminal exposure. Earlier reports indicated that Mueller’s team had warned Manafort’s lawyers that he would be indicted. This information is often communicated to a target before indictment to provide an opportunity to cooperate before he faces criminal charges. The fact that he was indicted suggests that he has not cooperated to date.

Manafort may want to reconsider his decision in light of the news about Papadopoulos. A document attached to the plea agreement sets out detailed allegations of the offense. It identifies four Trump campaign officials without naming them as a “Campaign Supervisor,” two “High-Ranking Campaign Officials,” and a “Senior Policy Advisor.” This naming convention complies with Department of Justice policy protect the names of co-conspirators who are not being charged. But while the public does not know the identities of these four campaign officials, Manafort likely does. He may even be one of the unnamed officials in this document, filed on Oct. 5, before he himself was charged. It may also be that these officials are cooperating in the investigation or at least have an incentive to do so to avoid charges. Manafort may want to beat them to the table. Oftentimes, the early cooperators get the best deals.

The document includes a number of interesting factual assertions about these other officials. According to the document:

  • Papadopoulos sent an email to the Senior Policy Advisor that “the Russian government has an open invitation by Putin for Mr. Trump to meet him when he is ready.”
  • Papadopoulos emailed one High-Ranking Campaign Official “to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”
  • The High-Level Campaign Official forwarded this email to another high-level campaign official with the note, “Let’s discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.” Some reports indicate the official who sent this message is Manafort.
  • The High-Ranking Campaign Official referred Papadopoulos to the Campaign Supervisor regarding planning a potential meeting with Russia “because he is running point.”
  • Papadopoulos sent an email message to the Campaign Supervisor advising him of a request by the Russian Ministry of Foreign Affairs to see whether Trump was interested in visiting Russia.
  • The Campaign Supervisor sent an email to Papadopoulos stating, “I would encourage you” and another foreign policy adviser to the campaign to “make the trip[], if it is feasible.”

 

Why Is Wisconsin—and 23 Other States—Challenging the Constitutionality of the Federal Supplemental Jurisdiction Statute?

by Jeff Mandell, partner at Stafford Rosenbaum LLP and Chair of the ACS Madison Lawyer Chapter.

Tomorrow, the Supreme Court hears argument in Artis v. District of Columbia, a procedural dispute about the interaction of federal jurisdictional statutes and state limitation periods. It is fairly dry stuff, so much so that it drew only two amicus briefs, far below average. But one of those amicus briefs, filed by the State of Wisconsin and joined by 23 others States, attempts to constitutionalize the dispute, with broad implications.

The Artis case is about the proper interpretation of the federal supplemental jurisdiction statute, 28 U.S.C. §1367. That statute authorizes federal courts with subject-matter jurisdiction over some claims to exercise jurisdiction over related state-law claims that could not independently be brought in federal court. The statute further provides that, in the event the federal court dismisses the claims that qualified for federal jurisdiction, the federal court has the option of maintaining jurisdiction over the state-law claims or dismissing them without prejudice.

The complication arises in subsection (d), which provides that, if the federal court dismisses a state-law claim, the limitation period “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” Does this mean, as Artis contends, that a plaintiff who files suit early in the limitation period retains the time remaining in that period as of the filing date, plus an additional 30 days? Or, as D.C. asserts, does the statute grant plaintiffs a 30-day window after dismissal to refile—and nothing more?

Each side makes arguments under traditional methods of statutory construction. But the most intriguing brief is Wisconsin’s, which argues that the federal Constitution tips the scales in D.C.’s favor. According to Wisconsin’s brief, Artis’s interpretation of §1367(d) would violate the Constitution. This is an aggressive position. Notably, D.C. has not even hinted at such a view.

Wisconsin roots its argument both in inherent principles of federalism and in the limitations of congressional power to establish rules for federal trial courts under Article III, Section 1. The basic idea is that States get to establish limitation periods for violations of state law and that Congress lacks power to override those state constraints because doing so is not “necessary and proper” to Congress’s role creating federal trial courts. Thus, Wisconsin reasons, “Congress would have no authority to enact [Artis’s] understanding of Section 1367(d).” (Br. at 22.)

To support this argument, Wisconsin hypothesizes the worst possible scenario, based on three criteria: (1) plaintiff files early in the limitation period; (2) litigation in the federal court is drawn-out for years before dismissal of the state-law claims; and (3) plaintiff delays refiling in state court for more than the 30-day grace period that all parties agree is provided by §1367(d). Where any one of these three criteria is absent, Wisconsin’s fears are unrealized. Artis mildly fits this scenario: she filed suit in D.C. court nine-and-a-half months after the three-year limitation period would have expired for most of her claims but for her federal suit.

Wisconsin argues that, because allowing Artis’s suit to proceed would, in effect, extend D.C.’s limitation period, it would improperly overwhelm local prerogatives. Of course, Wisconsin foresees situations more egregious than Artis: “the longer the state limitations period is extended, the greater the harm is to sate interests in avoiding state courts finding themselves awash in claims too stale to be adjudicated certainly.” (Br. at 21 (internal quotation marks omitted).)

This argument falls short in two respects. First, Wisconsin has to stretch for examples with is a significant extension beyond the state-law limitation period. Having presumably case a wide net and searched the tens of thousands of federal cases filed every year, Wisconsin found only seven examples worth citing—over the last 17 years. (See Br. at 20-21 (citing cases).)

Second, Wisconsin’s fearmongering about staleness is unconvincing. These cases involve parties who began litigating in federal court within the limitation period. That means both sides have notice of the dispute and bear obligations to preserve evidence. It follows that even a dismissal and delay before refiling in state court is unlikely to preclude a fair trial. And even if staleness is a concern, under Wisconsin’s worst-case scenario, the plaintiff—who decides when to refile in state court—bears the harm, as the party with the burden of proof.

That said, as weak as Wisconsin’s claimed harms are, the record contains little offsetting benefit to Artis’s preferred reading. Artis has indicated that plaintiffs who file early in the limitation period should have the benefit of the time they did not use earlier to reassess after dismissal of their federal claims. That’s not a slam-dunk argument, but it has some intuitive appeal. Further, it is not Artis’s obligation to defend Congress’s interests and prerogatives, and the United States has not filed a brief articulating its view.

Ultimately, Wisconsin’s argument is an intriguing one, but its brief seems rhetorically overheated. Wisconsin’s repeated invocation of limitation periods extended by years—a remote possibility constantly emphasized in the brief with italics—is strained. And the argument that, if Artis’s interpretation of §1367(d) holds, “there would be no stopping point to what Congress could do to state statutes of limitations” (Br. at 25), is a particularly unconvincing slippery slope. Perhaps these issues contributed to the denial of Wisconsin’s request to participate in oral argument.

In some ways, the most interesting aspect of Wisconsin’s brief—besides a thought-provoking argument—is the list of signatories. Twenty-three other states joined Wisconsin’s brief, and not all of them are represented by attorneys general who reflexively favor states’ rights over the federal government. Perhaps this is a symptom of a rising tide of progressive federalism. If so, challenging the constitutionality of an established jurisdictional statute is an odd choice of a test issue, especially as, were Wisconsin’s argument to prevail, courthouse doors would close a little more against plaintiffs.

Regardless, Wisconsin’s brief raises an unexpected issue and adds a new facet to this procedural dispute. It bears watching to see if the Court asks the parties about Wisconsin’s arguments or if the final opinion addresses the issue in a way that informs our understanding of what test federalism arguments will need to meet in determining whether a legislative enactment is indeed “necessary and proper” to fulfilling one of Congress’s enumerated powers.