Great Moments in Virginia Jurisprudence

Arenda Wright Allen

by Hans Bader

Shouldn’t a judge at least know what’s in the Constitution, before getting a promotion? Left-wing trial judge Arenda Wright Allen confused the Declaration of Independence with the Constitution in her ruling striking down Virginia’s same-sex marriage ban, noted ABC News. Yet now she is being recommended for a promotion to the Fourth Circuit Court of Appeals, by Virginia Senators Mark Warner (D) and Tim Kaine (D).

The Richmond Times-Dispatch reports that in “a letter Monday the senators recommended U.S. District Court judges Arenda Wright Allen and M. Hannah Lauck and Virginia Solicitor General Toby J. Heytens” for elevation to the Fourth Circuit.

In 2014, ABC’s Erin Dooley wrote about how Judge Allen attributed a phrase to the Constitution that it doesn’t contain:

A federal judge who struck down Virginia’s ban on gay marriage inaccurately attributed a quote from Declaration of Independence to the Constitution.

“Our Constitution declares that ‘all men’ are created equal. Surely this means all of us,” Arenda Wright Allen wrote in her original opinion, issued late Thursday.

Though the Fourteenth Amendment guarantees “equal protection” under the law, the Constitution does not include the phrase “all men are created equal.” That would be the Declaration of Independence.

Several judicial observers noted the discrepancy, including South Texas College of Law professor Josh Blackman.

The Times-Dispatch quoted a liberal law professor saying that diversity is a “priority of the White House.” The newspaper goes on to say that Judge Allen “is black,” while Judge Hannah Lauck “has been a U.S. District Court judge in Richmond since 2014 and prior to that a federal magistrate judge in the Eastern District. She was the first woman to be appointed to either position in Richmond. She was an assistant U.S. attorney from 1994 to 2005.” The third candidate recommended is Virginia Solicitor General Toby Heytens, a progressive law professor who now works in the office of Virginia attorney general Mark Herring (D).

None of the three candidates appears to be moderate, as opposed to liberal (like Judge Lauck) or left-wing (like Judge Allen). Virginia was long a conservative state, and even Democratic judges in Virginia, like U.S. District Judge James Michael, often used to be moderate. But Democrats no longer appoint moderate judges.

Of course, it is to be expected that a liberal president like Joe Biden will appoint fellow liberals to the federal bench. At least one of the three candidates — Judge Lauck — does seem clearly qualified to sit on the appeals court. By contrast, Judge Allen’s not knowing what’s in the Constitution is a good reason not to promote her to a higher position.

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16 responses to “Great Moments in Virginia Jurisprudence”

  1. Steve Gillispie Avatar
    Steve Gillispie

    Another excellent informative post. Thank you.

  2. Nancy Naive Avatar
    Nancy Naive

    And, given the 14th, this error makes a difference, how exactly?

  3. Stephen Haner Avatar
    Stephen Haner

    First, elections have consequences. Everybody knew few would ever be more consequential than this last one. McConnell successfully eliminated any need to get 60 votes on the floor for judges, which had been a major moderating factor. Buckle up, it will get bumpier.

    Second, consequential opinions usually have many sets of eyes on them before publication, and are often drafted by clerks or staff. An embarrassing error and it did have her name on it, but she has company. If there is a pattern of such silly errors I suspect her name may come off the list.

    1. Nancy Naive Avatar
      Nancy Naive

      Oh, I shouldn’t worry, Steve. He also successfully stacked the SCOTUS with Conservative religious ideologues.

  4. LarrytheG Avatar

    So many of the blog posts in BR these days start off with words like “leftist” or some such so you sorta get the flavor of the post early on and this one ran true to form as expected. Yeah, judges of all stripes – left and right are not all as wonderful as we’d like.

    But looking at some of the folks nominated – and approved at the Federal level in the prior administration is clearly of the “oh my” category and then, of course, those “judicial” POTUS Pardons – Good Googa Mooga!

    I know it’s a real travesty but government – all three branches are staffed by humans… yep… that’s the awful thing… cuz some of them are clearly not the best! As someone once observed ” not everyone graduated at the top of their class” – not your doctor, not your bridge engineer , and not your judge!

  5. Publius Avatar

    If your goal is to remove all constraints of the Constitution so we can be sure Antifa keeps us in check and everyone “votes” the “right way” (meaning Left), then she is perfect.
    And striking down the gay marriage ban was great jurisprudence, not judicial tyranny because those idiot majorities who voted for it were wrong.
    Except when a majority agrees with LarrytheG, then it is CONSENSUS! And, as everyone knows, if a majority agree on a subject claimed to be scientific, then it is SCIENTIFIC CONSENSUS, which is immutable and existed at the creation of the world…
    Oh, sorry, I didn’t mean to imply creation, violating another great pearl of wisdom from our intellectual superiors…

    1. Eric the half a troll Avatar
      Eric the half a troll

      “And striking down the gay marriage ban was great jurisprudence, not judicial tyranny because those idiot majorities who voted for it were wrong.”

      Hey, Doc, glad to see you will oppose any and all legal challenges to Virginia’s recently passed gun control laws seeing as how the majority voted for them. Miss the old TBE, eh…?

    2. LarrytheG Avatar

      No, you’re confusing scientific consensus with general population voting majorities but as expected.

      Obviously when Trump was elected it had nothing to do with scientific consensus! Right?


  6. Eric the half a troll Avatar
    Eric the half a troll

    “But Democrats no longer appoint moderate judges.”

    The hypocrisy is strong with this one…

  7. tmtfairfax Avatar

    This is an insult to every capable federal district court judge in Virginia. Mixing up the Declaration of Independence with the Constitution in a written legal opinion that was written and reviewed by a clerk (normally high-flyers from law school) and the judge herself is simply beyond the pale. Given the Judge’s lack of competence, Warner and Kaine should try to get her nominated for the Ninth Circuit, where judges regularly make major errors in the law and are reversed by SCOTUS.

  8. Publius Avatar

    So I will take comfort from the great philosopher Meatloaf on my poking of the troll hornet’s nest this morning.
    Judicial review was always a potential danger. The Marxists figured that out a long time ago and have been chipping away, while normal people went on with their lives, and the George Wills of the Right clutched their pearls. Science man now distinguishes that a majority only applies when it is scientists, and not regular people because it is SCIENCE! Full Troll does a whataboutism – hey, you’re a hypocrite because you’re gonna want these laws overturned that were passed by a majority. Well, if they are unConstitutional, yes, I would. But I think the preferred way is to get you totalitarians out of office and pass legislation, not have 9 oracles, who aren’t, make law that is permanent.
    Gay marriage violates natural law and homosexuality is not consistent with Darwinian theory. The way anything here should have become legal was by votes of the legislatures in the various States. But it was judicial usurpation of power and subversion…just chipping away…
    So the gun control laws…you Marxists just can’t stand that some people refuse to submit, can you? It’s a shame you can’t leave us normals alone. One day you might even get a court to change the clear meanings of words and get your wish. But that might work out badly. Or it might be successful in making all people liars, law breakers, and dispirited and they give in to your “benevolent” tyranny, cuz you’re so smart and good and the world will be perfect. It’s nice when you believe a theory contradicted by reality over and over and think you’ll be the ones to do it right…

    1. LarrytheG Avatar

      well, sounds like, we’re getting “calibrated”…


      This guy is in your tent Haner….

    2. Eric the half a troll Avatar
      Eric the half a troll

      “Well, if they are unConstitutional, yes, I would.”

      As I suggested, Doc, Conservative hypocrisy on display…

      1. Stephen Haner Avatar
        Stephen Haner

        Bader badly misread and misrepresented a tax bill on this blog last year. I’ve made more than my share of bonehead errors that have gotten into print. I’m not hanging her over just that….and again, McConnell opened the door to no-filibuster on judges. Sauce for the goose…

      2. Publius Avatar

        How so, Full Troll?
        Please grace us with your boundless wisdom.

  9. StarboardLift Avatar

    I was chatting with Appellate Judge Glen Huff this week, who says that the bench has been waiting 2+ years for an 11th judge. One more is about to retire, so they’ll be down 2 judges. Dramatic changes to the Virginia code will perhaps triple the number of appeals, so the projection is to name 17 judges to handle the new volume. The dysfunctional General Assembly needs to do its job. And surely there are other terrific African-American female lawyers who haven’t made this error.

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