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Posted at 9:00pm on Jul. 3, 2005 August May Be Nominee-Bashing Month

By AndrewHyman

Senator Specter and his Judiciary Committeee ought to start hearings as soon as August rolls around, instead of letting the nominee --- whoever it is --- get pummelled by left-wing groups until hearings begin in September. Doing nothing throughout August would be torture for the nominee and torture for the public.

On July 2, Knight Ridder reported that, "Specter said he expected to hold confirmation hearings in September but didn't rule out action in August if Bush submitted a name to the Senate." But, on Fox News Sunday, Senator Feinstein was adamant that she's going home for August, adding: ââ‚Å“To set arbitrary timetables, at this point, would be a mistake.ââ‚?

There's nothing "arbitrary" about having prompt hearings, instead of letting a nominee dangle like a pinata for the whole month of August. If Sen. Specter wants to have thorough hearings, he shouldn't confine them to the month of September. He ought to get started August 1, or sooner. This is all the more important given the possibility of a further vacancy. Specter acknowledged today on Late Edition that it's the Senate's "duty" to have any Supreme Court nomination resolved before the Court convenes in October.

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Posted at 5:58pm on Jul. 3, 2005 Kristol on the Nomination Conflagration

By AndrewHyman

Bill Kristol has an interesting piece in the Weekly Standard titled, "Reversing the Bork Defeat; With a Republican Senate, President Bush has the Chance to Succeed Where Reagan Failed by Getting a Conservative Constitutionalist Confirmed to the Supreme Court." The first few paragraphs are below the fold.

ON OCTOBER 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.

The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.

But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift. Now, with one of the two swing votes on the Supreme Court stepping down, George W. Bush has a

chance to begin to make constitutional history, as he is certainly attempting to do in foreign policy and, to a lesser degree, in economic policy.

There are two pieces of good news to keep in mind as President Bush ponders his choice. The first is that, by contrast with the situation in 1987, the Senate has a Republican majority. The second is that President Bush can choose from among many, many well-qualified conservative constitutionalists. Although President Bush is understandably fond of and loyal to his attorney general Alberto Gonzales, it's simply a fact that Gonzales does not have the stature of several other possible candidates. I now believe that, though tempted, President Bush will leave his attorney general in his current office.

Kristol goes on to praise Michael McConnell, among others. However, I think there are plenty of reasons to be very concerned about a McConnell nomination. See here.

HT: How Appealing for linking to Kristol's article.

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Posted at 5:36pm on Jul. 3, 2005 ââ‚Å“Judgeââ‚â„¢s Actions Speak Louder than Words"

By AndrewHyman

If nominated and confirmed, Judge Emilio Garza would be the first Latino --- and arguably the first Hispanic --- U.S. Supreme Court Justice. Judge Garza is profiled in a July 3 article in the San Antonio Express-News. Excerpts from this long, interesting, and detailed article appear below. Also, the Supreme Court Nomination Blog has a detailed Garza profile here, and the Federal Judicial Center has a brief profile here. Garza's current age, by the way, is the most common age for a Supreme Court nominee.

"He's a guy who stays home a good deal, not that he's a recluse," said George Spencer Jr., a former partner of Garza's in the law firm then known as Clemens, Spencer, Welmaker & Finck.

Spencer and others who encounter Garza professionally know him to be gracious, hardworking, churchgoing and forthright, but few see him regularly.

The baby-faced bachelor often is described as a loner who zealously guards against appearances of impropriety and has, as a result, distanced himself from many of the local colleagues he once worked alongside.

His office on Northwest Loop 410 has no name, title or insignia on the sign outside its entrance. It isn't even listed on the directory in the building's lobby.

His private persona is balanced, however, by very public rulings, the product of 14 years on the 5th Circuit Court of Appeals, which has final say on most questions of federal law from Texas, Louisiana and Mississippi.

Strong, conservative opinions in cases involving religion and abortion spice his record. And demographics only sweeten his political appeal.

At 57, Garza is not too old to serve a decade or two on the high court.

....

"He's definitely in the top, I would say, five names or so," [CFJ Executive Director Sean] Rushton said.

Former Bexar County District Clerk David J. Garcia, a regular at the Jim's Restaurant on Loop 1604 where Garza often stops on his way to work, can't help flustering the judge he describes as shy and humble by asking, "Hey, you taking me with you to the Supreme Court?"

"And he gets all red," said Garcia, who has known Garza since their youth.

....

"He has a very clear paper trail on the things that conservatives ... care about," said Manuel Miranda, a former counsel to the Senate Judiciary Committee and Senate Majority Leader Bill Frist.

The record reveals a jurist who's competent, methodical and deferential to precedent, but not afraid to disagree publicly with colleagues and Supreme Court rulings.

....

Garza, unlike Gonzales, would unite conservatives and divide liberals, said Miranda, now chairman of the Third Branch Conference, a coalition group that supports conservative judicial nominees.

....

Garza found himself alone on a three-judge panel in 1999 when he argued on behalf of Beaumont School District's "Clergy in the Schools" program, which invited members of the clergy to counsel students during class hours.

The majority ruled the program amounted to an unconstitutional government sponsorship of religion.

Dissenting, Garza said the majority's reasoning meant that, "luminaries such as the late Rev. Martin Luther King Jr. and Archbishop Desmond Tutu could not meet individually with students to talk about civic values. The establishment clause does not mandate such an absurd result."

....

He removes himself from cases involving not only his former firm, but also a lawyer who was a high school friend, even though they long ago stopped socializing regularly.

The same keen sense of propriety also surfaced when a state judge who previously worked in private practice with Garza offered free tickets to one of her political fundraisers. Garza politely declined.

"I have to say that of all the judges I know, probably Emilio takes the most strict approach to that ââ‚” he really limits social gatherings," said the judge, Phylis J. Speedlin.

Garza was no less cautious as a trial judge.

Once, when he and his staff traveled to hear cases in El Paso, the stenographer forgot his wallet in his hotel room. The judge graciously paid for breakfast.

But later, when they had returned to court and the court reporter had retrieved his wallet, he held out the money to repay the judge.

Garza stopped him and said, never, ever, show money in court. It's not appropriate.

"He told me three times in one day," recalled the stenographer, Gary Hudgins. "He got his point across."

....

In 1997, Garza joined his colleagues on the 5th Circuit in striking down a Louisiana law that gave judges excessive authority to deny abortions to juveniles, but his vote came with a caveat.

"For the second time in my judicial career," he began, "I am forced to follow a Supreme Court opinion that I believe to be inimical to the Constitution."

In a lengthy opinion, the judge went on to explain he was reluctantly following Supreme Court precedents that he believed represented little more than unjustified power grabs by the court.

HT: How Appealing.

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Posted at 5:17pm on Jul. 3, 2005 Sunday Talk Shows (Plus Transcripts)

By AndrewHyman

Mark Kilmer has again bravely sat through Meet the Press, Fox News Sunday, Face the Nation, This Week, and Late Edition. His full summary is at redstate. Below the fold is the nomination-related stuff.

NBC'S MEET THE PRESS, Andrea Mitchell played a clip of Ted Kennedy repeating his old Judge Bork speech about rolling back rights and separating lunch counters. Specter responded: "It would be very useful to the country if the rhetoric would be turned down." He suggested that Kennedy was "laying down a markerâ₦ picking a fight." For his part, Leahy allowed that he had "a great deal of respect for Ted," but "I agree with Arlen." Specter noted that though he voted against Judge Robert Bork's confirmation in 1987, he almost supported the judge after hearing a Gregory Peck commercial trashing him. [The chairman of the Senate Judiciary Committee thus admitted that his reasons for voting against a qualified judicial nominee were so flimsy as to be almost reversed by a television commercial.]

The transcript for Meet the Press is here.

FOX NEWS SUNDAY Chris Wallace asked Sen. Feinstein to suggest nominees for the President. Di Fi said that this was "up to the President", it was not her place. Perhaps noticing that she had just contradicted her party's leadership, she added that the President should "consult with" Leahy and Reid. Wallace talked about when the President would hold hearings. Feinstein was adamant that she was going home for August, adding: "To set arbitrary timetables, at this point, would be a mistake."

Lindsey Graham said that the President should not have to choose a centrist nominee, as ideological balance has "never been the standard." He noted that Clarence Thomas replaced Thurgood Marshall. [Also note that Justice Ginsburg replaced Byron White]. Wallace asked Lindsey "Gang of 14" Graham about "extraordinary circumstances," and Graham explained that the term meant conduct problems, etc., and that an extraordinary circumstance was not about ideology. Lindsey "Gang of 14" Graham told Wallace that the Gang of 14 had not met regarding the Supreme Court vacancy. He added: "I'm against gangs," and offered that he had no tattoo.

Chris Wallace next talked to conservative C. Boyden Gray of the Committee for Justice and Nan Aron of the liberal Alliance for Justice. Gray said that he would support Gonzales. Aron gave Gonzales a pass, stipulating that she did not know a thing about him.

Transcripts of Fox News Sunday are here and here.

CBS'S FACE THE NATION On consultation, Hatch said the Constitution does not require consultation, which he called a "courtesy" of recent genesis. Biden said that the President should nominate a mainstream conservative, "like [Ruth Bader] Ginsberg."

Hatch said the attacks on Gonzales were "pure bunk." He called Gonzales a "very fine man," adding: "If he gets picked, I would support him."

Biden said that some conservatives argue that the takings clause prohibits localities from using zoning laws to keep porn shops out of residential neighborhoods. He retracted that argument without prompting a moment later.

Asked if Roe v. Wade were a "defining issue" for him, Biden responded, "No."

Biden said that "yes, there are" reasons to filibuster a Supreme Court nominee. He said that Republicans had filibustered Abe Fortas and killed his nomination to be Chief Justice. Hatch clarified that the Fortas filibuster was bipartisan. [It was also not conducted to kill the nomination but rather to extend debate, nor did Fortas have a clear majority lined up to vote for him.]

Biden said that he "could see a circumstance" where the Dems would filibuster, and he said that would be the nomination of Edith Jones [5th circuit, Reagan], who is too extremist and divisive. Biden quickly corrected himself: he meant to say Judge Janice Rogers Brown.

A transcript from Face the Nation is here.

ABC'S THIS WEEK Ted Kennedy declared on ABC's This Week that a nominee's ideology was the most important thing to consider, and that this was President Reagan's fault for nominating Judge Bork. Kennedy commended President Bush for having nominated O'Conner back in '81. [We don't know if he meant this President Bush or his father, but neither man is President Reagan.]

Specter said that the nominee was the President's choice, and the President did not have to choose someone who fit Ted Kennedy's definitions. He commended the President for saying that he'd consult with Leahy and Reid, Frist and himself, before appointing. He chastised Kennedy for attacking before anyone was nominated.

Kennedy commended the President for reaching out to Democrats, adding that it was Constitutionally required that he do so. [A proposition earlier refuted by Orrin Hatch on Face the Nation.] He rejected the nomination of Alberto Gonzales to the Supreme Court because of the "torture memorandum" having "endangered our troops."

Specter said that he had suggested no names to the President, as he was not asked. "Don't ask, don't tell," he laughed.

Stephanopoulos mentioned to Kennedy that he had ruled ideology out of the mix when defending Thurgood Marshall's nomination back in 1967. Kennedy said this had changed when President Reagan nominated Judge Bork for purely ideological reasons having nothing to do with the man's qualifications. He trashed Bork for wanting to send us back to an era when yadda, yadda, yadda, and had his nomination been confirmed "it would be an entirely different America."

Smelling blood, Specter jumped on. He shouted that Bork would have segregated the Senate galleries and was in possession of "extreme views." [Both he and Kennedy seem to have a vested interest in seeing that Judge Bork is transformed into an eternal bogeyman, becoming more and more sinister with the passing of time.]

Steph listed some potential nominees for Kennedy -- Clement, Jones, Garza, Roberts -- but Kennedy wouldn't take the bait and address them individually. Specter wouldn't either. Cornyn and Schumer in the next segment wouldn't touch them either.

Next on ABC's This Week, Steph talked to Senators John Cornyn and Chuck Schumer. Schumer argued that ideology had always been the first concern, as when the Senate rejected then-President George Washington's nomination of John Rutledge to succeed Chief Justice John Jay in 1795 because of Rutledge's opposition to the Jay Treaty [actually, Rutledge was a nut case who attempted suicide after the Senate rejected him.].

Schumer declared that a Supreme Court nomination was the most important thing that they would consider as Senators. "With the flick of a pen, they could change people's lives." [No one asked him if this was how it should or was intended to be.]

The transcript for ABC's This Week is not freely available. But, you can pay through the nose, here.

CNN'S LATE EDITION Reporter Suzanne Malveaux played the clip of Kennedy's tirade, recycled from the Robert Bork battle. Leahy wishes "everybody would relax a little bit and let the process play out."

Specter touted his record of voting for pro-life nominees. He said that Roe v. Wade is safe because Justice Kennedy voted with the majority in 1992's Planned Parenthood v. Casey.

Specter accused Judge Robert Bork of having "original intent," and would have "segregated the Senate" into black on one side, whites on the other." Specter said that scholars liked his questioning of Bork and of Anita Hill, and that "history will vindicate me."

Judge Robert Bork was interviewed next. When asked about Specter's allegation regarding Bork and segregating the Senate, Bork replied, "I know Specter, and the truth is not in him."

Bork said "we've been having a cultural war in America" because the Supreme Court has "become a political institution." He called it a "political prize" over which the two sides fight. He said that if you stick to the original intent with the Constitution, you don't have to be a liberal or conservative. He said that the President owed the whole country a nominee who would stick to the original intent of the Constitution.

Whether you support or oppose abortion, "you ought to oppose Roe v. Wade," he explained. It's not in the constitution. His advice to the nominee: "Brace yourself, now what's going to come, and don't let it bother you."

Malveaux asked Bork about the verb "to bork." He said that it was "in the dictionaries," and means "to attack someone unfairly." He added: "To have your name become a verb is to achieve a certain measure of immortality." Malveaux told Bork that he was immortal.

The transcript from Late Edition is here.

This has been a lightly edited version of Mark Kilmer's full summary, which --- as I said --- is available at redstate.

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Posted at 3:05pm on Jul. 3, 2005 "Kennedy Slams Unnamed Supreme Court Nominee"

By AndrewHyman

Scott Ott over at Scrappleface has the scoop:

(2005-07-02) -- Sen. Ted Kennedy, D-MA, today criticized President George Bush's as-yet-unnamed replacement for retiring Supreme Court Justice Sandra Day O'Connor as a "brutal, Bible-thumping, right-wing ideologue who hates minorities, women and cocker spaniels."

"He or she is clearly outside the mainstream of American values," said Sen. Kennedy. "President Bush has again ignored the Senate's 'advice and consent' role, forcing Democrats to filibuster this outrageous nominee."

The Massachusetts Senator said his aides have already discovered "reams of memos" showing that the man or woman Mr. Bush will appoint has "a history of abusing subordinates, dodging military service, hiring undocumented workers, spanking his or her children and rolling back the clock on human rights to the days when the Pharaohs ruled Egypt with an iron fist."

The Senator's office issued a news release to the media documenting the allegations against the potential high court judge, with a convenient blank line allowing reporters to fill in the nominee's name as soon as that information is leaked.

Never say we're humorless, here at confirmthem. :-) Unfortunately, this Scrappleface article is surprisingly close to the truth, according to redstate's audio update. And by the way, unlike Senator Kennedy, we here at confirmthem reserve judgment about whether or not the nominee should be confirmed!

UPDATE: Senator Kennedy's evolving views about litmus tests are discussed here by the Qando Blog (Kennedy used to be against them but now he's for them). HT: Instapundit.

UPDATE #2: The Washington Post reports on July 3 that Dems will oppose any nominee:

Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate.

Satire on this subject here. HT: Patterico. And, a related cartoon is here.

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Posted at 9:12pm on Jul. 2, 2005 "Conservative Groups Rally Against Gonzales as Justice"

By AndrewHyman

Tomorrow (Sunday), the New York Times will have a lengthy article about conservative opposition to a Gonzales nomination. Here's part of it:

The groundswell of opposition to Mr. Gonzales was ... swirling around Mr. Bush this weekend as he headed to Camp David to begin considering a replacement for Justice O'Connor, a decision his aides said would not be announced before he returned from a trip to Europe at the end of next week.

â₦.

Administration officials discounted the conservative uprising against Mr. Gonzales, saying that Mr. Bush was already aware of the objections and was not convinced by them.

"It is what it is," said one senior administration official, who insisted on anonymity in exchange for discussing the White House views of the criticism of the attorney general. "The president is going to pick someone who is a true constructionist and who is correct in interpreting the law." The official said that Mr. Gonzales fit that description, but also that Mr. Bush might be wary of moving him to a new position so shortly after he was confirmed as attorney general.

For more info from confirmthem about Attorney General Alberto R. Gonzales, see here. Tom Goldstein of the Supreme Court Nomination Blog (SCtN) is predicting that Judge Priscilla R. Owen will be the nominee instead of Gonzales. Info about a bunch of other SCOTUS candidates is linked at the right side of the confirmthem home page.

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Posted at 2:26am on Jul. 2, 2005 Good Advice For The President

By Lorie Byrd

I am happy to join Quin's chant for Miguel Estrada, and the posts below about Garza have me convinced he would be a great nominee, too. I think there may be a bit of pressure to choose a woman to replace Justice O'Connor, but since there has not been a hispanic justice, the President is not likely to get a lot of criticism for not picking a woman if he goes with a hispanic nominee.

Betsy Newmark has it right in her advice to President Bush:

You and the nominee will get hammered and vilified no matter whom you pick. If the nominee were the reincarnation of both John and Thurgood Marshall, the press would portray the nominee as another Roger B. Taney. So, Mr. President, my recommendation is that you just pick the most conservative, qualified, and youngest nominee that you can. Forget the critics since there is no one you could nominate that wouldn't excite the leftist base. They have been gearing up for this battle for four years and their fund-raising depends on raising a fuss. There is no way that they will defer to Bush's choice. So, swing for the fences, Mr. Bush. Your base is there for you.

Cross posted at Polipundit.

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Posted at 8:18pm on Jul. 1, 2005 Senators' Comments on SDO

By DanCT

ââ‚Å“I have nothing but respect for Sandra Day Oââ‚â„¢Connor and her tenure on the court. As we consider her replacement, itââ‚â„¢s important that we remember her legacy. America needs judges who are fair, independent, unbiased and committed to equal justice under the law. Iââ‚â„¢m confident that the president will select a qualified replacement justice who embodies these qualities. I look forward to working with my colleagues to ensure a fair confirmation process in the Senate that will ensure the Supreme Court is at full strength to start its next term in October.ââ‚? ââ‚“ Senator Frist

ââ‚Å“The nation owes Justice Oââ‚â„¢Connor a debt of gratitude. In accepting a lifetime appointment as a guardian of the Constitution, Sandra Day Oââ‚â„¢Connor dedicated her life to the service of her country and the rule of law. . . . It is my hope that the deliberative process for confirming a new nominee to the court is treated with great respect. In addition, I urge my colleagues in the Senate to act expeditiously once the President forwards the nomination to the Senate." - Senator Allard

"As the first woman appointed to the U.S. Supreme Court, Justice Sandra Day Oââ‚â„¢Connor shattered many barriers and has been a consistent and moderate voice in the high court. In the nearly 25 years she has served as Associate Justice, she has proven time and again to understand and protect our freedoms guaranteed in the Constitution. She leaves an admirable legacy and she will be missed.ââ‚? - Senator Burns

ââ‚Å“I respect and admire the high degree of integrity, intellect, and judgment that Justice Oââ‚â„¢Connor contributed during her tenure. Iââ‚â„¢ve known her for over 30 years and sheââ‚â„¢s never forgotten her Arizona roots. Arizonans proudly honor her service to the nation... I look forward to a fair process that culminates in an up or down vote to fill the vacancy in time for the start of the Courtââ‚â„¢s new term.ââ‚? - Senator Kyl

ââ‚Å“Justice Oââ‚â„¢Connor has served the cause of justice on the federal and state benches for almost three decades. She has approached her duties as an individual judge, and as a member of the judicial branch as a whole, with care and integrity. Her exemplary life reflects so much of what is good about America... The American people are tired of the confrontational partisanship that has characterized the judicial confirmation process in recent years. When President Bush nominates someone to replace Justice Oââ‚â„¢Connor, the Senate must fulfill its constitutional responsibility to treat the nominee fairly with a full debate on the merits and then an up-or-down vote.ââ‚? - Senator Hatch

"I join with my colleagues and my fellow Americans in expressing my deep appreciation to Justice Sandra Day Oââ‚â„¢Connor for her twenty-four years of service on the Supreme Court....For her time on the Court, Justice Oââ‚â„¢Connor will be remembered as an independent jurist who established a legacy of fairness, moderation and devotion to the public good. As we move into the confirmation process, it is now the job of President Bush and the Senate to nominate and confirm someone of Justice Oââ‚â„¢Connorââ‚â„¢s caliber and commitment to the bench. - Senator Murkowski

"There is a right way and a wrong way to debate the merits of a Supreme Court nominee. The Senateââ‚â„¢s past record, unfortunately, has been mixed. Whoever the nominee is, the Senate should focus its attention on judicial qualifications ââ‚” not personal political beliefs. Whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan personal attacks. And whoever the nominee is, the Senate should apply the same fair process that has existed for over two centuries: confirmation or rejection by majority vote. I wish to congratulate Sandra Day Oââ‚â„¢Connor on her extraordinary life and commitment to public service. I wish her and her family well." - Senator Cornyn

ââ‚Å“Through her distinguished service to the Supreme Court and our nation, Justice Sandra Day Oââ‚â„¢Connor has earned the gratitude of all Americans. During her tenure, she interpreted the law and defended the Constitution with fairness and independence. President Bush will now submit a nominee for confirmation to serve on the Supreme Court, and I will work with my Senate colleagues to ensure an expeditious confirmation process for the Presidentââ‚â„¢s nominee.ââ‚? - Senator Sununu

"As the first woman confirmed to the Supreme Court she has served the Court with dignity and fairness...Now as we move forward, I expect that any nominee the President sends to the Senate will be treated with fairness and respect, including an up or down vote in the Senate. As a senior member of the Judiciary Committee, Iââ‚â„¢ll be looking forward to hearing from a nominee who understands that the role of the courts is to interpret the law, not create the law.ââ‚? - Senator Grassley

ââ‚Å“We will greatly miss Justice Sandra Day Oââ‚â„¢Connor. She has been a wonderful role model for young women in America and around the world. She is a good friend and I join countless others in thanking her for her service....The Senate will now embark on a journey to fill a vacancy on the high court. This is a task so important to our nation that partisan politics must never enter the equation. I look forward to President Bush nominating a judge who will not make law from the bench. I will help shepherd his nominee through the Senate....While we still have many lower court nominees to confirm, there is no higher priority facing the Senate. We must make this process swift and free from partisan politics. The Senate should act quickly to ensure the new justice is in place by October.ââ‚? - Senator Hutchison

ââ‚Å“Justice Oââ‚â„¢Connor has served the court well for more than twenty years and the nation owes her a debt of gratitude for her service. She has held the post with dignity and intelligence, and I wish her well as she leaves public service to devote time to her family. I look forward to participating in the confirmation process in a fair-minded and just way to confirm a nominee to interpret the Constitution and respect Justice Oââ‚â„¢Connorââ‚â„¢s wish to step down.ââ‚? - Senator Crapo

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Posted at 6:21pm on Jul. 1, 2005 Justice O'Connor

By AndrewHyman

Statements from other Justices are here.

The statement by President Bush is here.

And, Justice O'Connor's letter is here.

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Posted at 5:17pm on Jul. 1, 2005 Ages of Nominees

By AndrewHyman

Historically, the ages of Supreme Court nominees at confirmation were as follows:

5 were under 40 years old.

12 were 41-45 years old.

16 were 46-50 years old.

27 were 51-55 years old.

33 were 56-60 years old.

17 were over 60 years old.

The birth years of the present SCOTUS candidates are below the fold. For example, Judge Emilio Garza was born in 1947, and so he is right at the most common age. Links to further info about each of the leading SCOTUS candidates are over at the right-hand-side of the confirmthem home page, under the category "SCOTUS Candidates." Or, just click on the image of Judge Garza, for more info about this distinguished ex-Marine who sits on the Fifth Circuit Court of Appeals in San Antonio, Texas. Can you tell who my favorite is? And if the Chief steps down, I'm for Priscilla Owen. That's my story, and I'm sticking to it, for now.

Alito was born in 1950.

Boggs was born in 1944.

Brown was born in 1949.

Clement was born in 1948.

Cornyn was born in 1952.

Easterbrook was born in 1948.

Estrada was born in 1961.

Garza was born in 1947.

Gonzales was born in 1955.

Hinojosa was born in 1950.

Jones was born in 1949.

Kyl was born in 1942.

Luttig was born in 1954.

McConnell was born in 1955.

Olson was born in 1940.

Owen was born in 1954.

Pryor was born in 1962.

Roberts was born in 1955.

Sykes was born in 1957.

Thompson was born in 1945.

Wilkinson was born in 1944.

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Posted at 5:09pm on Jul. 1, 2005 Where We Stand At The End Of The Day

By Erick

I'm working multiple sources and have this wrap up before I head off for the 4th of July.

1. A source close to the Attorney General says that Garza is still the frontrunner. This source speculates that Cornyn has been asked to do interference for the President.
2. A White House source tells me Garza is still at the top of the list for O'Connor, but Cornyn was there and people are being relatively silent on his situation.
3. My primary source tells me Cornyn should not be discounted, but Garza is who the source has said all along for O'Connor, with the possibility of Edith Brown Clements.
4. Third parties are telling me we'll start hearing about John Roberts again as well as Edith Brown Clements. Also, the media will begin looking at both Cornyn and Garza.
5. The long and the short of it is we have no real clue right now and we do not want to buy into too many unsubstantiated rumors.

Now, let me say this: sources in the press, in the White House, and in the Senate have all said (1) Rehnquist should be out and they are somewhat surprised he is not; (2) Garza is the most credible O'Connor replacement; and (3) President Bush loves to play wild cards and Cornyn is a wild card. Cornyn makes sense from both a wild card perspective and from a conspiracy perspective (you know, Bush controls Governor Perry so Karl can move to the Senate). Garza has been the most widely circulated name with Edith Brown Clements flying under the radar and the odds are still good for him. It would make sense for Cornyn to be running interference. He is well liked by members on both sides of the aisle and would have familiarity with Garza from their days down in Fifth Circuit territory.

We do know that the President will not formally pick anyone until he returns from the G8. In the meantime, this is the perfect opportunity for the White House to throw a bunch of names out there and see who sinks or swims on the Sunday morning talk shows.

We know one thing for sure -- this thing is open and the battle is going to be hard fought.

As for Gonzales? I got a cryptic email from someone who works with Gonzales. He rules out Gonzales and says Gonzales knows this is not his time.

Cross posted at RedState.org

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Posted at 2:49pm on Jul. 1, 2005 And now, Miguel

By Quin

There was a book my mother read us when my brother and I were young that I remember loving, although now I can't remember a single other thing about it. It was called "And Now, Miguel." The more I think about it, the more I think a real fight is just what this country needs in order to teach what really is important in judges and in constiutional law. I still think the single best choice for the Supreme Court would be Alito, but I'll wait to have him named as Chief when Rehnquist finally steps down. AN dof course I like Garza and Luttig and Jones. But for now, the best fight, the most worthwhile fight, the boldest fight, would occur if Bush said: "And now, Miguel." Estrada, Estrada, Estrada. C'mon, fellow court watchers, join my chant: Estrada, Estrada, Estrada. And now, Miguel. -- Quin

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Posted at 2:43pm on Jul. 1, 2005 Justice Alberto Gonzales: A judicial conservative's worst nightmare

By feddie

One of my co-bloggers over at Southern Appeal, William Watkins, has more on why a Gonzales nomination should greatly concern conservatives.

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Posted at 2:31pm on Jul. 1, 2005 Nominations Timeline

By DanCT

Historically, it has taken about two months to move from nomination of Supreme Court Justices to confirmation. If there is a nomination next Friday and the historical timetable holds, then we should have the newest Justice on the court by mid-September at the latest.

The average numbers of days (nominations since 1975) for each stage in the confirmation process are listed below:

Nomination to Hearing: 39

Hearing Days: 5

Hearing to Markup: 10

Markup to Floor: 13

Total: Nomination to Confirmation 72

Supreme Court nominations under President Clinton

Nomination to Hearing: 42

Hearing Days: 4

Hearing to Markup: 5

Markup to Floor: 7

Total: Nomination to Confirmation 58

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Posted at 2:20pm on Jul. 1, 2005 Stop Gonzales now!

By feddie

If you have a conservative blog, you need to get the word out about the possibility of a Gonzales nomination ASAP (link to my post below, write your own, just do something). The president needs to know that it is time for him to turn the loyalty switch off in this instance, and publicly or privately reassure conservatives that a Gonzales nomination isn't going to happen.

Let me be blunt. If President Bush nominates Alberto Gonzales to fill O'Connor's seat or any other vacancy that may arise during his second term, then I am done with him. He'll be dead to me. And if Gonzales is confirmed, I am not giving the Republican party another dime. It's time to start walking the talk, boys. Either y'all deliver on Bush's promise to appoint justices like Scalia and Thomas, or I and others will make you pay for it dearly come election time. And you won't be able to bring me back into the fold with a "Well, things will be worse if the dems return to power" argument, because at that point I would just as soon wreck the ship and start from scratch.

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Posted at 2:19pm on Jul. 1, 2005 Cronyism, Gonzales, and "Advice and Consent"

By DanCT

Will this President really go back on his pledge to nominate Supreme Justices in the mold of Scalia and Thomas and give the nod to Gonzales? Lefties like Kos like the idea: "My choice would be Alberto Gonzales, torture lover that he is. Fact is, he would be the most likely to become the next Souter."

The Constitution gives the President the sole power to nominate the judges because, as Hamilton puts it in Federalist Papers (#76): "The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection."

The Senate, though, has the power to reject nomination because, as Hamilton further explains, " that power is "an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."

The "Advice and Consent" clause is included in the Constitution expressly as a check against cronyism of a President who, blinded by personal loyalties, nominates a friend rather than giving primary consideration to the best person for the job.

If Gonzales is nominated, the Senate should exercise that check.

Personally, I believe the President to be a man of his word and will nominate someone in the mold of Scalia and Thomas -- and not Gonzales. Indications are that next Friday we will know more.

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Posted at 1:52pm on Jul. 1, 2005 Not much time...

By DanCT

...to make the case against a Gonzales nomination. From the SRC, I just heard: "White House announces that no replacement will be announced before July 8th."

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Posted at 1:30pm on Jul. 1, 2005 Keep the pressure on your senators to nix a Gonzales nomination

By feddie

A while back, I posted that a source had told me the president reluctantly concluded that it would be a political disaster for him to nominate Alberto Gonzales to the Supreme Court. Shortly thereafter, I spoke with someone else, who knows the president personally, and he/she told me that if the president wanted to nominate Gonzales, he would do so regardless of what anyone thought. Having followed the president's political career for some time now, I must say that this assessment of the president's character seems to me to be spot on. Just a few minutes ago, I called back the source who told me Gonzales was definitely out, and asked whether a Gonzales nomination was still off the table. The source informed me that to the best of his/her knowledge a Gonzales nomination is now back in play.

What all of this tells me is that the situation is an extremely fluid one, and that judicial conservatives must immediately put as much pressure as possible on their senators to do all they can to strongly discourage the president from nominating Gonzales. This is not a battle we can afford to lose.

Oh, and if you questioned for a minute that the liberal movement in this country is morally bankrupt, look no further than the emerging support for Gonzales on the left (e.g., Kos, Publius). The same leftists who screamed their heads off that Gonzales was unqualified to serve as AG for a four-year term--because of the now infamous torture memo--are now prepared to give him a pass as a Supreme Court nominee (a lifetime appointment!). Why? Because Gonzales is soft on Roe (read: abortion), and that's the most important thing in the world to dems: preserving, at any cost, the right of women to murder their unborn children with impunity at any stage of their development.

(cross-posted at Southern Appeal)

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Posted at 12:44pm on Jul. 1, 2005 Dance with the One Who Brung You

By carney

It's time to make sure the President knows to live up to his promise to give us judges like Scalia or Thomas. Anything else would be a historic disaster.

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Posted at 12:42pm on Jul. 1, 2005 More

By Erick

A Senate friend called me after I talked to someone else about the same thing and they corroborated each other -- certain Senators were told as long ago as a month and as soon as last week that it would be Rehnquist. So, what happened? Sources are all out to lunch.

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Posted at 12:34pm on Jul. 1, 2005 A Round Up Of Sources

By Erick

Before all my sources reminded me that I'm not that important to them by fleeing the scene to actually work, here's information I received.

• This morning John Cornyn was seen at the White House. He is rumored to have then had a private meeting with key staffers.
• Last my source told me this morning, Garza is still at the top of the list.
• As for Rehnquist? Several key players in the Senate were told by the White House that he was out this week. My source says the White House went into confusion mode over this. Everyone had expected Rehnquist.
• As for Gonzales. POTUS is POTUS and sources tell me that though the political calculus equates to suicide, POTUS still wants Gonzales.

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Posted at 11:45am on Jul. 1, 2005 O'Conner indeed

By DanCT

Statement has been made. President to speak soon.

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Posted at 11:19am on Jul. 1, 2005 It's O'Connor!

By krempasky

Or so says Erick over at RedState. He's hearing Garza. Notice by noon.

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Posted at 1:48am on Jul. 1, 2005 Trivia Question

By AndrewHyman

This info is from a law review article by Joshua Glick:

[R]etired justices can ride circuit pursuant to 28 U.S.C. 294(a) which states: "Any retired Chief Justice of the United States or Associate Justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit, including those of a circuit justice, as he is willing to undertake." Indeed, several justices have elected to continue their judicial service after retirement by sitting by designation on various Courts of Appeals.

So here's the question: Who was the only retired Supreme Court Justice to sit by designation in all of the circuits? The answer's below the fold.

Glick says it was Justice Tom Clark. Clark was born in 1899, and was appointed to the Supreme Court in 1949 by President Harry S Truman. Justice Clark retired in 1967, in order to avoid a conflict of interest when his son became Attorney General. After his retirement, Clark rode circuit for another ten years, participating in every single one of the courts of appeals that then existed.

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Posted at 4:20pm on Jun. 30, 2005 Much Ado About Garza

By Erick

I have spoken with my source, but only briefly. I've checked in with a few other people too. Here seems to be the gist of the Garza stories that are popping up.

The Lefty competitor to the Federal Society got wind of a rumor about Garza being appointed tomorrow and have been fanning the flames. It may be true, but it is most likely only true if O'Connor goes first, which is a strong possibility, but my source still says its the Chief first.

Garza is most plausible for O'Connor because (1) the President wants a Hispanic justice and (2) to replace O'Connor with someone more conservative, the President is going to need someone other than a white guy. It is a political calculation that it will be harder to replace a moderate with a conservative than an existing conservative with a conservative. So, to overcome the more difficult hurdle, it does make political sense to save Garza for an O'Connor resignation.

The source still thinks it's Rehnquist. The source thinks that Rehnquist does not want to retire, but thinks that Rehnquist knows now is the best chance for him to retire and get a replacement who is most like him. We'll soon find out if we're all chasing shadows down rabbit holes.

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Posted at 11:29am on Jun. 30, 2005 Waiting

By carney

VLADIMIR: Ah Gogo, don't go on like that. Tomorrow everything will be better.

ESTRAGON: How do you make that out?

VLADIMIR: Did you not hear what the child said?

ESTRAGON: No.

VLADIMIR: He said that Godot was sure to come tomorrow. (Pause.) What do you say to that?

ESTRAGON: Then all we have to do is to wait on here.

(Read Dana Milbank in today's WaPo)

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Posted at 10:13pm on Jun. 29, 2005 Has There Been a Hispanic Justice? Nope.

By AndrewHyman

Slate says here and here that Supreme Court Justice Benjamin N. Cardozo was Hispanic. But that's just wrong. Cardozo was not Hispanic, nor was he Latino.

Admittedly, this is not a critical issue, and it wouldn't normally be of much interest. But, confirmthem now pounces on this timely question, and finds that the answer is straightforward. The Federal Judicial Center is correct to not list Justice Cardozo as Hispanic, and is also correct to list Judge Emilio Garza as Hispanic.

Cardozo was born in New York City, and his ancestors were Sephardic Jews who immigrated to the United States in the 1740s and 1750s from Portugal (after first moving to the Netherlands and England). So that brings us to the question of whether a Portuguese Sephardic Jew is ââ‚Å“Hispanic." No way Jose. According to the American Heritage Dictionary, we have this definition of the word ââ‚Å“Hispanic":

ADJECTIVE: 1. Of or relating to Spain or Spanish-speaking Latin America. 2. Of or relating to a Spanish-speaking people or culture.

NOUN: 1. A Spanish-speaking person. 2. A U.S. citizen or resident of Latin-American or Spanish descent.

Last time I checked, Portugal is not part of Latin America nor part of Spain. Neither is the Portuguese language the same as the Spanish language. Cardozo may have happened to know Spanish, but that was not his primary language.

Moreover, if Cardozoââ‚â„¢s ancestors had been from Spain instead of Portugal, he might be considered ââ‚Å“Hispanic" but still could not be considered ââ‚Å“Latino." Here's why, according to Wikipedia:

Hispanic â₦ specifically refers to Spain and the Spanish-speaking nations of the Americas, as cultural and demographic extension of european colonial Spain. Meanwhile, Latinos are only those from the countries of Latin America, whether Spanish or Portuguese-speakingâ₦.The one exception for a Brazilian to be considered Hispanic is if his ancestry was Spanish rather than Portuguese.

Got that straight? So, if President Bush should someday appoint Miguel Estrada, Emilio Garza, or (heaven forbid) Alberto Gonzales to the Supreme Court, don't let anyone fool you. That would be the first Hispanic on the Supreme Court, and also the first Latino on the Supreme Court. It would be extraordinary. Comprende?

UPDATE: There's tons more about this issue here, including this:

In Portugalâ₦.[they] never say Portuguese people are Hispanic because after centuries of fighting the Spaniards, and being their rivals, it would be almost an insult to the individuality of their culture, or simply, something innaccurate.

The word "Hispanic" comes from "Hispania" which was the name for the whole peninsula at the time of the Roman Empire, and of course the peninsula now includes both Portugal and Spain. However, after the fall of the Roman empire, the "Hispania" peninsula stopped being "Hispania" and was called "Iberia" until the present. Portugal was founded in 1139. Over 350 years later, Spain was founded, and at that time they needed a name; they remembered that the peninsula had previously been called "Hispania" and so they adopted that as the new name of their new country, which from then until now has only occupied part of the peninsula.

Note that Slate's original source misspelled "Cardozo" and confused Hispania with Hispaniola.

Like I said, there has never been a Hispanic U.S. Supreme Court Justice, despite Slate's assertion in their article (which can be accessed by clicking on the following Slate image).

UPDATE #2: The Washington Post says that Cardozo was not Hispanic.

UPDATE #3: More info here.

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Posted at 8:04pm on Jun. 29, 2005 Sandra O'Connor and William Rehnquist

By AndrewHyman

Howard Bashman has this item about an O'Connor resignation. Regarding a Rehnquist resignation, Associated Press reports this:

"The big day is Friday," Specter said. "I agree with Arlen," Leahy chimed in. "The decision will be made --- if there is one like that --- at the end of the week." But Specter, who is fighting cancer, says he doesn't think Rehnquist will retire anytime soon.

Further rumors say that, on Friday, Judge Emilio Garza will be nominated for the Supreme Court. Info about Garza, and other possible nominees, is linked over at the right side of the confirmthem page, under the category "SCOTUS Candidates."

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Posted at 5:17pm on Jun. 29, 2005 Swirling Rumors

By AndrewHyman

Brian Dickerson has a good column in the Detroit Free Press, and here's how it begins:

Poor William Rehnquist! In the twilight of a Supreme Court career that has spanned seven presidencies, the chief justice ought to evoke admiration and sympathy as he battles thyroid cancer.

Instead, it seems the nation he has served faithfully for 33 years can't wait to be rid of him.

It's not that we're rooting against Rehnquist's recovery, exactly. We just wish he'd continue it somewhere else so we could get on with the fun of beating each other senseless over the choice of his successor.

You'd think conservatives would be more respectful of a justice who has borne their torch faithfully for more than three decades. But among the myriad advocacy groups poised to spring at the first whisper of Rehnquist's retirement, conservatives may be the most impatient of all.

Chief Justice Rehnquist continues to do an excellent job. Not that I agree with him on everything, of course (and not that his retirement would be a bad thing). Rehnquist most recently provided a decisive vote in the Texas Ten Commandments case, Van Orden v. Perry. He also wrote the plurality opinion in that case. Here's an excerpt:

Our cases, Januslike, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history.â₦The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom. This case, like all Establishment Clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens. One face looks to the past in acknowledgment of our Nation's heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage....

Justice Breyer concurred that "a hostility toward religion ... has no place in our Establishment Clause traditions." HT: How Appealing for the Dickerson column.

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Posted at 3:26pm on Jun. 29, 2005 Supreme Court Speculation

By Erick

Over at RedState's main page, I have have up a post detailing a conversation I had with a credible source. Since that time I have received several emails from members of the Gang of 500 agreeing and saying they have heard the same thing. The caveats to that, however, are in the second paragraph.

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Posted at 2:12pm on Jun. 29, 2005 More Supreme Court speculation

By feddie

I appreciate Andrew making note of my post today over at Southern Appeal re: my June 1st "Rehnquist will step down in four weeks" post (you beat me to the punch, pal), and I am also heartened to read several reports today that track what I have been hearing from my sources re: the likelihood of a Rehnquist retirement (and possibly O'Connor as well).

And hey, if it turns out that my original source was off by a few days, it certainly won't trouble me a great deal. :)

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Posted at 12:39pm on Jun. 29, 2005 Reid and Thomas on High Court Vacancies

By AndrewHyman

Democratic Minority Leader Reid suggests Senators Lindsey Graham, Mike DeWine, and two others as Supreme Court nominees. Seems like Reid is giving a big fat wet kiss to the Gang of 14. Additionally, Reid says that the Supreme Court itself recommends ââ‚Å“calling people from outside the judicial system." Senators Cornyn and Kyl come to mind.

Meantime, Justice Thomas mentions that, "As we ended our term . . . the winds of controversy swirled about the court's decisions and, unfortunately, about the imagined resignations."

Also, Feddie comments.

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Posted at 8:59pm on Jun. 28, 2005 Chief Justice Stepping Down

By AndrewHyman

Tomorrow marks the end of the two-year term of Missouri's Chief Justice Ronnie White. Did you think I meant someone else?

As for Chief Justice Rehnquist, we hope he's laughing off the premature talk of his demise, getting healthier, and contemplating retirement only if it suits him.

Meanwhile, Israelââ‚â„¢s Supreme Court President Aharon Barak is approaching that jobââ‚â„¢s mandatory retirement age of 70, which is leading to speculation that the limit will be raised. For those who may not be aware, President Franklin D. Roosevelt once made a proposal along similar lines:

What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.

This FDR speech is well worth reading for other reasons too, such as his criticism of the Supreme Court. Anyway, I hope that the Court will, in the future, play a smaller role in everyones' lives, and we mght then be less obsessed about retirements and confirmations. Let's hope for more judicial restraint, less overstretching of the Constitution, and more deference to the electorate.

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Posted at 8:00pm on Jun. 28, 2005 Calm before the storm???

By Quin

Everything has been eerily quiet today. Folks in the know are still saying THEY don't even know if there will be an opening at all. I find that hard to believe -- and worrisome, extremely, if it is true. But I still believe we'll hear an announcement either tomorrow, Thursday, Friday, or next Tuesday. And I STILL think the best choices are Alito and Garza. I also, of course, would be delighted with Edith Jones. And Luttig, Roberts and Clement all seem good choices as well. Or Ted Olson. Or Miguel Estrada. But, no matter what, my patience is running out. I want some action, and I want it soon!!!!

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Posted at 4:58pm on Jun. 28, 2005 Frist Speech at Heritage Foundation

By AndrewHyman

Senate Majority Leader Frist gave a speech today at the Heritage Foundation, about the confirmation process. The full text is here.

According to Tim Chapman, Frist said he has not had a Supreme Court short list delivered to him either formally or informally. Anyway, here's a brief excerpt from Frist's speech:

Let me read some of the comments made on the Senate floor just in the last six weeks.

Senator Barbara Boxer equated the values of one judicial nominee with the ââ‚Å“kind of values which stand with a rapistâ₦.�?

Senator Chuck Schumer questioned the same nominee: ââ‚Å“Does she want a theocracy? Does she want a dictatorship?�?

Senator Ted Kennedy characterized a group of judicial nominees as ââ‚Å“anti-worker, anti-civil rights, anti-disability, anti-senior, anti-consumer, and anti-environment.�?

This is the sad state of the Senateââ‚â„¢s judicial confirmation process.

Like I said, the full text is here.

And by the way, here's Senator Boxer's full sentence from June 8:

If it did not happen that we had this deal, we would still be using the filibuster on her, to protect the people of the United States of America from her kind of values which stand with a rapist, which stand with the tobacco companies, which stand with those who discriminate.

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Posted at 1:16pm on Jun. 28, 2005 Eviscerating New London

By Quin

Since this column of mine, out today, does touch on high court nominations, I thought COnfirm THem readers might enjoy it.

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Posted at 12:31pm on Jun. 28, 2005 NRO Editorial

By carney

NRO very plainly and clearly says No to Gonzales today. Every paragraph makes a strong argument. Here's my favorite:

Supporters of a Gonzales nomination say that he would not be worse, and might even be better, than Justice Sandra Day Oââ‚â„¢Connor. But pro-lifers have voted for Republicans for two decades in the hope of improving the line-up of the Court, not of preserving it. To defend a Gonzales nomination on these grounds is to make an affirmative choice for three more decades of Oââ‚â„¢Connor-style jurisprudence. It would be to break faith with the presidentââ‚â„¢s campaign promise.

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Posted at 12:20pm on Jun. 28, 2005 Potential Supreme Court nominee--Judge Edith Brown Clement (Fifth Circuit)

By feddie

I received the following email this morning from a reliable source and long-time SA reader:

Morning Feddie,

Our office got a call yesterday from __________ of the [major pro-family, Christian organization] with questions on Judge Clement. She's on the short-short list, apparently, and she's one of us. Things are looking good!

You can read Judge Clement's biography and resume here and here.

And here are some statements that were made in support of her nomination prior to Senate confirmation.

I don't know too much about Judge Clement, but I am hearing good things. And PFAW doesn't care much for her, so that's certainly a positive sign.

I would love to hear more about Clement from those of you who have recently clerked at the Fifth Circuit or follow that court closely.

(cross-posted at Southern Appeal)

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Posted at 11:10pm on Jun. 27, 2005 Judge Saad is Still Waiting For a Vote

By AndrewHyman

Several circuit court nominees are still languishing just like they were before The Deal, as you can see from the links to "Circuit Nominees" listed over at the right-hand-side of our confirmthem home page. Brett Kavanaugh seems to be on ice until another vacancy opens up on the DC Circuit. William Myers and Terrence Boyle have been approved by the Judiciary Committee, but they still await up-or-down votes on the floor of the Senate. And, it appears that Willaim Haynes, Susan Bieke Neilson, and Henry Saad heven't come to a vote yet in committee.

Tomorrow (Tuesday), The Hill has a report about Judge Saad:

Republican leaders in Michiganââ‚â„¢s Macomb and Oakland counties are pressuring Sen. John McCain (R-Ariz.) to win an up-or-down vote on a controversial judicial nominee from the Wolverine State. They want McCain to use his influence to persuade his colleagues to clear Henry Saad, the nominee to the 6th U.S. Circuit Court of Appeals who was left out of the judicial deal Senate centrists struck last month. Conservative activists are launching a campaign this week to save Saadââ‚â„¢s nomination, while Republicans on the Senate Judiciary Committee such as Sen. Lindsey Graham (R-S.C.) are hinting that the nominee may not have enough support to pass out of committee.

It will be interesting to learn Senator Graham's reasons for opposing Judge Saad. A few days ago, Marshall Manson had a piece heaping praise on Judge Saad:

Saad was the least ideologically controversial of the five nominees that the deal addressed, yet his nomination was the first put on the chopping block. Sadly, Saad became a prop in the classic Senate parlor game, "Race you to the press conference." Led by Minority Leader Harry Reid, Saad's opponents have made defamatory references to his FBI file without providing any specifics. They throw around terms like "judicial temperament" and make it sound like Saad has something to hide.

If there are no Supreme Court retirement announcements on Tuesday, "that means every justice is expecting to return in October and believes they will be medically fit to return in October," according to historian David Garrow. Thus, if no retirements are announced tomorrow, then the focus may shift back to circuit court nominees, none of whom had ever been filibustered prior to 2003. In fact, no judicial nominee for any court had ever been denied an up-or-down vote by an endless filibuster on the Senate floor, prior to 2003. So, the fate of these six languishing circuit court nominees may determine if the pre-2003 traditions are restored, or not.

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Posted at 8:57pm on Jun. 27, 2005 <strong>Prayer answered--"No More Souters"</strong>:

By feddie

An extremely reliable source informs me that Alberto Gonzales will not be nominated by the president to the Supreme Court. According to Quasi-"Deep Throat":

POTUS is upset about it, but has been told and understands Gonzales is a deal breaker with conservatives. Gonzales has participated in forming a list without his name on it.

There's a great deal more that I wish could say, but I am sworn to secrecy. I will say this though, conservatives will NOT be disappointed with who the president has in mind to replace Rehnquist and O'Connor. Dubya is going to come through for us on his Supreme Court picks, folks, so get ready to rumble. :)

(cross-posted at Southern Appeal)

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Posted at 7:44pm on Jun. 27, 2005 Power Line Endorses Judge Owen for Supreme Court

By AndrewHyman

John Hinderaker at Power Line thinks that Judge Priscilla Owen would be a good candidate for U.S. Supreme Court, in the event of a vacancy. Accordingly, I've installed a couple Owen links over at the right-hand-side of our confirmthem page, under "SCOTUS Candidates."

Here's what Hinderaker writes:

If President Bush feels constrained to appoint a woman to the first vacant seat, two of the better choices would be Janice Rogers Brown and Priscilla Owen, who have finally been confirmed to the Court of Appeals after years-long filibusters. I would think it could be hard for the Democrats to explain why they are apoplectic about a Supreme Court nomination of someone they voted to confirm just a few weeks ago. (On the other hand, of course, most of the Dems voted against both nominees, so arguably it's only a few who would have explaining to do.) Of these two, Owen is the safer choice. There is nothing seriously controversial about her, to my knowledge. Brown is a personal favorite of ours for a number of reasons, but is a more fiery and, I think, legitimately controversial figure. I'm not at all sure she is a reliable conservative, either, although I'm pretty confident she has no intention of "growing in office."

So there you have it. Judge Owen would be fine with me, too. Paul Mirengoff of Power Line adds this about Judge Edith Brown Clement:

Slate found little "for conservatives to get excited about" in her record. Feedback I received ... suggests that this may be an understatement.

Links regarding Judge Clement are also available over at the right-hand-side of our confirmthem page, under the category "SCOTUS candidates." And, I've already said that Judge Edith Jones would also be an excellent choice, whether or not the President is looking for a woman.

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Posted at 3:08pm on Jun. 27, 2005 If There's a Supreme Court Vacancy This Week . . .

By AndrewHyman

I hope this question will be asked of the nominee during the confirmation hearing:

Suppose a case comes before you that requires a choice between two options. Option number one is endorsed by the "mainstream" of this country's legal community, and is really the most compassionate and fair choice for the parties involved in the case. Option number two is to uphold the clearly intended meaning of the Constitution, which is different from option number one. Will you choose option number one or two?

Any nominee who says "option number one" should be voted down, and sent to Siberia, if the Russians are willing to accept such a disgraceful immigrant.

UPDATE: A reporter in Huntsville, Alabama directs a bit of sarcasm at Fox News for excessive coverage of a possible Rehnquist retirement announcement. Also, a possible Gonzales nomination is discussed by Mike Krempasky and others, over at Redstate (I'm with Mike).

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Posted at 2:14pm on Jun. 27, 2005 An Excellent Time to Disrobe

By AndrewHyman

Opinion Journal points out that Republican control of the Senate is by no means a sure thing after the next elections:

"With at least six legitimate targets for the Democrats, the Senate is officially in play for the first time this cycle," concludes Chuck Todd of Hotline, the political tip sheet. While the GOP has several opportunities to target Democrats, he points out that two Northeastern Republicans, Rick Santorum and Lincoln Chafee of Rhode Island, face stiff challenges, as does Montana Senator Conrad Burns, who represents a state that has been trending Democratic. In addition, the GOP can't be confident it will hold the Tennessee seat being vacated by Majority Leader Bill Frist, who is honoring a pledge to leave office after two terms. "I'd feel a whole lot better if we had a confirmation vote this year when we have 55 Senators than waiting and rolling the dice," one GOP Senator told me.

C'mon Justices Stevens, O'Connor, Souter, and Kennedy. You were appointed by Republican presidents. Why not return the favor?

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Posted at 12:33pm on Jun. 27, 2005 "No Rehnquist Announcement; Commandments Split"

By AndrewHyman

No resignation announcements, at least not yet, according to ScotusBlog at 10 AM. (UPDATE: Ditto at 1:30 PM.)

As far as the Ten Commandments are concerned, the Court seems to have split the difference, striking them down in the Kentucky case, but allowing them in the Texas case. For the Kentucky case, you can access the dissent here, and the Court's opinion here, and the concurring opinion here.

UPDATE ON COMMANDMENTS: Regarding the Court's opinion in the Kentucky case, John Podhoretz asks, "Has anybody ever advanced this radical opinion -- that the five justices in question may be intelligent and thoughtful people individually, but that together they form one blithering idiot?" Regarding the Court's opinion in the Texas case, the Court was so splintered, that when C.J. Rehnquist announced all of the opinions, he joked that he didn't know there were so many justices on the Court. The lineup of justices was the same in both cases, except that Justice Breyer flipped, for the reasons described by Ed Whelan.

UPDATE #2: Scrappleface suggests a disclaimer on courtroom displays of the Ten Commandments: "Citizens may observe and obey these commandments at their own risk." HT: How Appealing.

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Posted at 10:39am on Jun. 27, 2005 Bashman and Cornyn on SCOTUS Vacancies

By AndrewHyman

For up-to-the-minute news about today's events, don't foget to check out How Appealing. Howard Bashman does an amazing job keeping on top of breaking news (Bashman also has an emergency back-up site here in case his main site goes down).

In other developments, Senator John Cornyn has this excellent piece at National Review today, titled "R-E-S-P-E-C-T; For the Law, for the Court, for the Constitution, for the Nominee."

UPDATE: FYI, the Supreme Court has voted 5-4 to order removal of framed copies of the Ten Commandments from two Kentucky courthouses, in the case of McCreary County v. ACLU. One wonders if the justices would allow even a framed copy of one of the commandments, such as, "Thou Shalt Not Kill." Speaking of that commandment, confirmthem received an interesting email today.

I'll leave the sender's name out of it. Here's what he asked: ââ‚Å“Didn't Casey essentially gut Roe v. Wade? What is left of Roe to overturn in the abortion area?" So, I sent the following answer:

Thanks for your email...

No, Casey did not overturn Roe at all. Casey affirmed the "central holding" of Roe, that abortion can be performed throughout the first and second trimesters [i.e. until "viability"], for any reason whatsoever.

45% of abortions in the United States occur after 8 weeks' gestation. The 8-week mark is the point where many states, including California, have laws calling it ââ‚Ëœhomicideââ‚â„¢ when a third-party kills the fetus. The reason is that, at eight weeks, all organs are in place and functioning (the unborn child even has fingerprints). Yet, Casey said it's okay for the mother to rip that child apart for an additional four months, for any frivolous reason whatsoever. Rape, incest, and fetal health problems account for less than 3% of the abortions that occur after the 8-week point.

If anything, Casey made things worse, by striking down laws that ensured a husband eventually finds out what his wife has done. The justices preferred court-enforced ignorance. I hope that answers the question.

Sincerely,

Andrew

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Posted at 9:36am on Jun. 27, 2005 Ponnuru on a Gonzales nomination

By Irishlaw

Not even mentioning other potential objections to a possible Gonzales nomination, NRO's Ramesh Ponnuru discusses the fact that the practical problems alone would make his tenure difficult: Gonzales would have to recuse himself from a large number of cases, "from the Patriot Act to partial-birth abortion."

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Posted at 9:36am on Jun. 27, 2005 Supreme Guessing Games

By AndrewHyman

Robert Novak has the latest:

The president will have to act quickly if the high court's current session ends today with a resignation. Justice Sandra Day O'Connor now is considered more likely to quit than ailing Chief Justice William Rehnquist. White House leaks describe Gonzales as the leading prospect for either vacancy.

...

Conservatives fear Gonzales will be another in a long line of justices who have proved more liberal than the president who appointed them expected -- John Paul Stevens, O'Connor, Anthony Kennedy, David Souter. That is a view widely held inside the White House, but not by the occupant who counts most. Bush loves Gonzales.

...

While Bush would consider replacing one of the court's two women with its first Hispanic justice, neither Roberts nor Luttig for O'Connor would be politically correct. Accordingly, White House judge-hunters are looking for a woman. They have interviewed Appellate Judge Edith Brown Clement (5th Circuit, New Orleans), a conservative who flies under the radar.

Also, the LA Times had this yesterday:

The White House list also includes Judge Emilio M. Garza, 57, of the U.S. 5th Circuit Court of Appeals in New Orleans. He is a conservative Roman Catholic of Mexican heritage who served in the Marine Corps. First appointed by Reagan, he was briefly considered for the Supreme Court by President George H.W. Bush in 1991. Since then, he has written opinions that are skeptical of the right to abortion set in Roe vs. Wade.

Though Garza is rarely mentioned as a leading candidate, Washington attorney Tom Goldstein, a regular advocate before the Supreme Court and a Washington legal insider, calls him "definitely the most likely choice" because he fits ideally with what the Bush White House is seeking.

Garza would be much preferred over Gonzales by the Republican base, as a successor to Justice O'Connor, IMHO. Info about each of the leading SCOTUS candidates is linked over at the right-hand-side of the confirmthem page (not surprisingly, under the heading "SCOTUS Candidates"). If a woman is what the White House is looking for, Judge Edith Jones would be great, and she would be excellent even if they're not looking for a woman.

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Posted at 1:53am on Jun. 15, 2005 Bush, Chancey, and Hausknecht on Judges

By AndrewHyman

President Bush reiterated Tuesday night that he'll "continue to urge the Senate to fulfill its constitutional responsibility by giving every judicial nominee an up or down vote on the Senate floor."

Meanwhile, Matt Chancey of Harrisonburg, Virginia has this and more to say in The Augusta Free Press:

Judges never were intended by our Founding Fathers to be the High Priests of our Republic. Judges have exerted far more power than the Constitution lawfully gives them. Many have become virtual dictators. But the Republican response has too often been "let's get our own judges into office, and then we'll have conservative dictators." I don't know about you, but I don't want Democrat or Republican dictators. No federal judge - I repeat, NO FEDERAL JUDGE - of any political persuasion should have the unlimited power possessed by the black-robed priests in our judiciary today.

And, Bruce Hausknecht has an article today titled "Who are the Extremists?" in Family News in Focus. Here's part of it:

What is an "extremist" judge? Well, what if you were an applicant for a federal court judgeship and your resume included seven years as the general counsel and six years as a board member of the American Civil Liberties Union (ACLU)? (Who among us seriously believes that the ACLU could even locate the American "mainstream" without the use of star charts?)

What if your published views on the legal status of women under federal law included the following tidbits?

"Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions."

"Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal.

"If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected."

"[T]he provision (prohibiting bigamists from voting or holding office) is of questionable constitutionality since it appears to encroach impermissibly upon private relationships."

"The Boy Scouts and Girl Scouts, while ostensibly providing 'separate but equal' benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes."

And last, but not least:

"Replacing 'Mother's Day' and 'Father's Day' with a 'Parents' Day' should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles."

I may not have a complete grip on where the American "mainstream" is, but I'm pretty sure that advocating constitutional protection for prostitution and bigamy, coed prisons, abolishing the Boy Scouts and Girl Scouts and getting rid of Mother's Day and Father's Day because they are too sexist isn't even close.

But what about a judge with such a resume? Who could possibly fit this description and still be appointed as a federal judge in this day and age of filibusters and obstructionism? Why, none other than the Hon. Ruth Bader Ginsburg, an associate justice of the U.S. Supreme Court, of course.

Ginsburg was nominated by President Clinton to the Supreme Court in 1993. It took just six weeks for the Senate to confirm her by an overwhelming 96-3 vote. No Republican filibuster; no rallies on the Senate steps decrying the nomination; no multi-million dollar public relations campaign to prevent her confirmation, a la Robert Bork.

Was it because Ginsburg was so "mainstream"? Hardly. Was it because she replaced another liberal, and so maintained that precious "balance" on the court (read: liberals win) that is trumpeted all the time in the media? Nope ââ‚“ she replaced Byron White, a solid conservative. The answer is pretty simple, really. Republicans joined Democrats to confirm Ginsburg because Republicans understood that elections mean something, and that a president's prerogative of choosing judicial nominees should be given great deference.

Bush, Chancey, and Hausknecht have the right idea. IMHO.

Also of interest is this essay by "The Fox" explaining why inter-branch collaboration in the nomination process may not be such a good idea.

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Posted at 11:49am on Jun. 14, 2005 Griffith Confirmed 73-24

By AndrewHyman

Bench Memos says so. Okay, it wasn't 75-25 like I predicted in the previous post.

UPDATE: Here's the tally. And, congratulations to Mr. Griffith.

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Posted at 10:09am on Jun. 14, 2005 Brown, Pryor, Owen to Sit on Same Court?

By AndrewHyman

Tod Lindberg writes in the Washington Times:

Judges Owen, Brown, Pryor and any and all others that go through hereafter under the terms of the deal would seem to be very much "supremable" in the event of a high court vacancy. Once they have made it through the appellate round, it would be difficult to tag them with the "extraordinary" label. The effort to block by filibuster someone whom you had previously agreed should not be blocked by filibuster would be very risky politically, especially with the stakes as high as they are for Supreme Court nominations. Doing so might even, when push came to shove as a Supreme Courtvacancy dragged on, legitimate the Republican's use of a "surgical" nuclear option described not as doing away with the filibuster for judicial nominees in general but as ending an illegitimate filibuster of this Supreme Court nominee in particular.

The idea of a "surgical" nuclear option is interesting. This might be the way to go with someone like Myers, who is completely qualified for the Ninth Circuit, and who has already been approved by the Judiciary Committee.

BY THE WAY: A vote on Thomas Griffith for the DC Circuit will be at 10 AM today. My guess: 75 to 25.

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Posted at 11:12pm on Jun. 13, 2005 The "Hold" on Kavanaugh

By AndrewHyman

As mentioned previously, Bench Memos is reporting that "this hold [on Kavanaugh] has something to do with the longstanding dispute over whether the D.C. Circuit needs 12 active judges." However, it seems that 28 USC 44 is pretty clear:

The President shall appoint, by and with the advice and consent of the Senate, circuit judges for the several circuits as follows . . . . District of Columbia 12 . . . .

This imposes a maximum number of 12 judges, not 11.

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Posted at 7:50pm on Jun. 13, 2005 Some Monday Afternoon Stuff

By AndrewHyman

With a little help from Google News and How Appealing, I've gathered a few of the latest confirmation-related links....

People are already registering various domain names in anticipation of a Supreme Court nomination, according to an article in Legal Times.

Paul Mirengoff writes in support of the Haynes nomination in the Weekly Standard.

Ed Whelan writes at Bench Memos here and here that the Kavanaugh nomination is on hold until the end of the year.

Opinion Journal has some interesting what-ifs:

On Friday, we noted that Senate Democrats might have been able to sink the nomination of Bill Pryor in 2003 had they allowed it to go to the floor [because there were only 51 Republican Senators back then]. Here's another tantalizing what-if. President Bush appointed Janice Rogers Brown to to the D.C. Circuit in July 2003, and the Democrats blocked a vote on Nov. 14 of that year. Arnold Schwarzenegger wasn't sworn in as California's governor until Nov. 17. Had the Democrats eschewed the filibuster and the Senate acted on the nomination more quickly, Gov. Gray Davis, a Democrat, might have been able to appoint Brown's successor on the California Supreme Court.

So, maybe the filibuster had some benefits for the GOP after all. Finally, for now, MSNBC has an article titled ââ‚Å“Bush's SCOTUS Strategyââ‚¿ which doesn't say a whole heck of a lot, but here's the link in case you're desperate to read about this subject.

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Posted at 7:42am on Jun. 13, 2005 The Boyle Nomination

By AndrewHyman

The Washington Times reports about the Boyle nomination:

Last week...Democrats on the Judiciary Committee demanded that Judge Boyle's nomination wait another week and that the Bush administration produce more of his unpublished opinions.... If Democrats mount a filibuster that Republican signers to the deal consider frivolous, then the "nuclear option" to ban judicial filibusters altogether would be back on the table.

Senator Leahy says that these unusual document requests are due to Boyle's reversal rate. However, Senator Graham has said Boyle's reversal rate is below the national average:

Graham, citing the Administrative Office of the Courts, said Boyle's reversal rate was 7.5 percent, which is below the national average of 9.7 percent.

Some Democrats are concerned that treating a Supreme Court nominee the way Democrats have treated circuit court nominees would not go over well with the public:

[S]ome of the Dems' top political players are so far sitting out the impending donnybrook over the courts. "A big fight over judges does not benefit Democrats or the country," says ex-Clinton consigliere Harold Ickes, an architect of the Democrats' 2004 campaign. "We just look like obstructionists."

This is from an interesting article in Business Week.

UPDATE: Boyle has been approved 10-8 by the Judiciary Committee.

UPDATE #2: Judge Boyle has been wrongly accused of bias against African Americans, and details are here. He has also been accused of making recusal errors, but those errors were inadvertent, harmless, and common (details here). Although Judge Boyle is opposed by a few police organizations, their reasons are not very persuasive. Judge Boyle, by the way, has a better-than-average reversal rate, contrary to what some people have charged.

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Posted at 9:49pm on Jun. 12, 2005 "McConnell: A New Type of Souter"

By AndrewHyman

I just came across this article by Andy Schlafly from last Friday. He says conservatives would not be getting what they expect if Judge McConnell is nominated for the Supreme Court. More info about Judge McConnell can be found here, and info about other SCOTUS candidates is linked over at the right side of the confirmthem home page.

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Posted at 3:09pm on Jun. 12, 2005 Some Sunday Stuff

By AndrewHyman

The Senate will debate the nomination of Thomas Griffith on Monday, with a vote scheduled on this DC Circuit nominee for Tuesday.

Hugh Hewitt urges prompt confirmation of Brett Kavanaugh to the same court, in a World Magazine article, and Hugh also says this:

If Kavanaugh is not confirmed by the time the Senate leaves to enjoy its Fourth of July fireworks, then the suspicion will grow that the McCain Caucus was either duped or complicit in the treatment of Kavanaugh. If there is a real deal, Kavanaugh should sail through the Senate, along with Terrence Boyle.

Meanwhile, Patterico says Edith Jones "would be one of the best choices that President Bush could make for the Supreme Court." Patterico also believes it's "too early to gloat" about The Deal. I agree with Hugh and Patterico, on all these points.

See the right side of the confirmthem homepage for links to info about Griffith, Kavanaugh, Boyle, Jones, and the rest.

UPDATE: Here's some more Sunday stuff. Robert Novak writes:

The next two Senate test votes on judicial confirmations are likely to be cast on White House aide Brett Kavanaugh and U.S. District Judge Terrence Boyle of North Carolina, both named to federal appellate courts. Kavanaugh and Boyle are not included in the bipartisan compromise on confirmation. If Democrats refuse to end debate on them, Senate Majority Leader Bill Frist is expected to invoke the "nuclear option" to confirm them by majority vote. A footnote: Michigan Appeals Court Judge Henry Saad, one of two judicial nominees sacrificed in the compromise agreement, may not even have the 50 votes needed for majority approval, much less the 60 senators needed for cloture.

Andy McCarthy at Bench Memos takes Jeffrey Rosen to task for distorting statistics regarding the filibuster deal and the future of the Supreme Court.

And, Joe Baker of Sevierville, Tennessee writes that, "Democratic senators have written the American people out of the Constitution's system for appointing judges."

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Posted at 8:53pm on Jun. 11, 2005 Graham Warns President to Cooperate

By AndrewHyman

James Kuhnhenn of Knight Ridder Newspapers reports Senator Lindsey Graham of South Carolina is saying that the President ââ‚Å“must cooperate" with the Senate:

Sen. Rick Santorum, R-Pa., said that on Supreme Court vacancies, the president should rely on his own counsel. But Sen. Lindsey Graham, R-S.C., one of the seven Republicans who signed the agreement, said the president must cooperate with the Senate. "I'm hopeful that we can get a Supreme Court nominee --- it may come soon --- through a collaborative process who would be a solid conservative," Graham said. "The next test for the body is the potential Supreme Court opening."

A ââ‚Å“collaborative process" is certainly not required by the Constitution. John Podesta and Mark Agrast of the liberal group Center for American Progress have acknowledged that fact:

In suggesting that the Senate may offer such advice at any time, even before the nomination has been tendered, we do not suggest that the Constitution requires this; only that it permits it.

Likewise, the deal signed by 14 Senators only ââ‚Å“encouraged" the President to consult prior to making nominations --- it did not "require" that kind of consultation. But now Senator Graham is reportedly requiring it, despite the clear language of the Constitution, which says that the President, "shall nominate, and by and with the advice and consent of the Senate, shall appoint" judges. The Constitution thus only requires advice after the President nominates, and Alexander Hamilton explained why.

Senator Warner has repeatedly assured everyone that the group of 14 Senators was simply trying to adhere to Hamilton's plan as explained in The Federalist. For example, Warner said, ââ‚Å“In no way is it our intent to â₦ be inconsistent with the guidance provided by Alexander Hamilton in Federalist Paper 66...." And what did Hamilton say in Federalist 66?

Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

Obviously, Hamilton foresaw that the Senate would advise and consent by majority, rather than allowing a minority to defeat nominations. Senator Graham appears to be demanding a collaborative process that Hamilton and the other Framers purposely avoided, while Graham threatens a supermajority vote that Hamilton and the other Framers disavowed. For example, here's what James Monroe said at the Virginia Ratifying Convention:

He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. THE CONCURRENCE OF A BARE MAJORITY OF THOSE WHO MAY BE PRESENT WILL ENABLE HIM TO DO THESE IMPORTANT ACTS. (emphasis added)

Senator Graham is going way beyond not just what the Framers had in mind, but also beyond The Deal, which merely "encouraged" the President to consult more. Now Graham is reportedly demanding that the President consult in a way that the Framers warned against, while Graham warns of a supermajority vote if the President doesn't cooperate.

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Posted at 8:13pm on Jun. 11, 2005 A Few Saturday News Items

By AndrewHyman

Fred Barnes has a piece titled "Winning Ugly" in the Weekly Standard, including this:

[T]he filibuster may be used to block a judicial nominee only in "extraordinary circumstances." Who decides when these circumstances occur? The answer is Republicans. Reid said the nuclear option is "off the table." But it's not.

Associated Press has a couple articles about Senators serving as Supreme Court Justices. The first article is about Senators who have already gone on to serve on the Court, and the second article is about current Senators who may be under consideration.

UPDATE: Power Line comments on the Barnes article, and thinks that "Winning Insufficiently" might be a better description.

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Posted at 9:42pm on Jun. 10, 2005 "Judicial Activism"

By AndrewHyman

This phrase is pretty common these days, but it's not new. It began popping up in U.S. Supreme Court opinions almost forty years ago, and that's where I found this quote:

[D]eciding what the Constitution is, not from what it says, but from what we think it would have been wise for the Framers to put in itâ₦[t]hat to me would be "judicial activism" at its worst.

This is from a dissenting opinion by Justice Hugo Black, in the case of United States v. Wade, 388 U.S. 218 (1967). Judicial activists are often nominated and confirmed by elected officials who donââ‚â„¢t appreciate how inappropriate such judicial misconduct really is. Professor John Eastman presents a case in point of a judge who announced his activist philosophy during his confirmation hearing, but was confirmed anyway.

Incidentally, despite all of his flaws and mistakes, Hugo Black is my favorite judge of all time. John Marshall's number two.

UPDATE: According to this article by Keenan Kmiec (California Law Review, October, 2004), Arthur Schlesinger introduced the term "judicial activism" in a 1947 piece he wrote for Fortune Magazine. Ironically, Schlesinger classified Justice Black as a judicial activist. Kmiec's article is titled, THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM."

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Posted at 3:11pm on Jun. 10, 2005 Extraordinary Circumstances?

By AndrewHyman

You decide.

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Posted at 2:37pm on Jun. 10, 2005 Hewitt Interviews Kyl

By AndrewHyman

Hugh Hewitt interviewed Arizona Senator Jon Kyl yesterday, and some of that's below the fold.

JK: And if there is a filibuster [of Kavanaugh], it's really going to put that agreement to the test, because, like you say, and I agree, I just don't think there's a case to be made against him that would be extraordinary circumstances.

HH: Senator Kyl, is there a reason why Boyle is ahead of Kavanaugh? And I just say this. I've got nothing against Mr. Boyle...

JK: Boyle's only been pending, I think, nineteen years. Yea, that's the reason.

HH: That's almost John Roberts territory.

JK: Yea. Boyle was first nominated by Bush 41.

HH: Yup. That's like John Roberts was as well. So that's it. That's why that is.

JK: Yea.

HH: Okay. Well then, you know what? Two more weeks for Brett Kavanaugh? I think people can live with that, and then we'll see what happensâ₦.

HH: Well, Senator Kyl, thanks for the update. By the way, are you planning to spend summer in DC with a Supreme Court nominee?

JK: It could well happen that that's going to be on our plate. But a lot of that might be after the summer, rather than during the summer.

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Posted at 11:11am on Jun. 10, 2005 Journalists Don't Report The Real Issue

By Lorie Byrd

Betsy Newmark points to Charles Krauthammer's article about what should really be at issue in the battle over judges (not what they have decided, but how it was decided) and makes an excellent point about how miserably journalists have been reporting this story:

The dishonest thing is that most of these politicians who are hurling accusations at these judges are lawyers. They know better. But they are willing to take a small part of a decision out of context and then accuse a judge they don't like of extreme views "out of the mainstream." Such dishonesty is disheartening, but not unprecedented in our nation's history. If we truly had a disinterested press, it would be their job to throw some light on what these judges have actually written instead of just pasting in opposing quotes like the debate was some tennis match with no way of finding out the essence of what these judges have argued.

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Posted at 9:45pm on Jun. 9, 2005 Durbin Threatens Filibuster

By AndrewHyman

Tom Curry of MSNBC has an interesting article about the possibility of an upcoming vacancy in the Supreme Court. Curry says that the top three contenders to fill such a vacancy are Judges Luttig, McConnell, and Roberts. Of these three, Luttig most probably would be closest to Justices Thomas and Scalia as far as judicial philosophy is concerned, in my opinion.

Curry's MSNBC article also includes this unfortunate quote from Senator Durbin of Illinois:

ââ‚Å“If they donââ‚â„¢t respect the Griswold decision, as far as I am concerned they should be filibustered," Durbin said.

So here we go again with the filibusters. Griswold v. Connecticut was the 1965 Supreme Court case that said contraceptives are protected by "penumbras, formed by emanations" from the Bill of Rights, and that case set the stage for Roe v. Wade eight years later. I guess a nominee must now believe in penumbras and emanations in order to avoid a filibuster. Apparently, Senator Durbin would filibuster against someone like Justice Potter Stewart, who wrote in 1973 that, ââ‚Å“the Connecticut law did not violate any provision of the Bill of Rights....�? (Stewart reached the same result as Griswold but on other dubious grounds).

The Griswold decision was written by William O. Douglas. If Senator Durbin wants to demand a Douglas-clone, or wants to demand a Stewart-clone, then Durbin should run for President and nominate who he wants. But as a Senator, Durbin has no legitimate authority to demand that the President nominate any particular person, or to choose what type of person is nominated. Moreover, if Senator Durbin thinks that any state legislature is inclined to ban contraceptives, then he is out of his mind.

By the way, in case you haven't noticed, the links over at the right-hand-side of our confirmthem home page now include "SCOTUS candidates."

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Posted at 7:52pm on Jun. 9, 2005 Griffin and McKeague Confirmed

By AndrewHyman

Here are the vote tallies for Richard Griffin and for David McKeague. Congratulations to them both, and to their families.

Senator Levin gave a speech immediately before those two confirmation votes, summarizing the history of the Sixth Circuit nomination process since 1996. Senator Levin made much of the fact that many Clinton nominees never made it out of committee, and Levin urged everyone to concede that the fate of those Clinton nominees was just as unfair as anything that has happened to Bush's nominees. Senator Specter has also urged everyone to concede that the hands of neither party are clean when it comes to treatment of nominees.

But I just can't help but note that, during Clinton's second term, the opposing party was in the majority. In contrast, Bush's nominees have been obstructed while the opposing party was in the minority. In other words, under Clinton, the decision to obstruct was made by the majority, but under Bush that decision has been made by the minority.

At any time, Senator Levin could have asked the full Senate to discharge nominees who were languishing in committee, but Levin didn't do that when Clinton was President. The reason why Levin didn't exhaust his remedies was because he knew that he would lose an up-or-down discharge vote on the floor of the Senate.

Senator Levin has been consistent: he has avoided up-or-down floor votes on obstructed nominations under both Clinton and Bush. It's true that languishing in committee is an unfortunate and unfair experience for any nominee, but being denied an up-or-down vote after getting out of committee is in an entirely different category of unfairness.

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Posted at 7:33pm on Jun. 9, 2005 Confirmed

By NateCT

Here's the roll call vote for the confirmation of Judge Pryor to CTA 11.

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Posted at 6:07pm on Jun. 9, 2005 Murkowski

By Quin

Murkowski, it turns out, didn't vote. Anybody know if she "paired" with Jeffords, or whether she just pulled a disappearing act?

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Posted at 5:33pm on Jun. 9, 2005 Who didn't vote?

By Quin

Just trying to find out who else didn't vote. Pryor got two Dems, Nelson of Nebraska and Salazar. He lost three GOPers, Collins Snowe and Chafee. Jeffords didn't vote. By my math, it means one other Republican did not vote. Anybody know who it was?

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Posted at 5:26pm on Jun. 9, 2005 53 to 45 for Pryor

By AndrewHyman

For those of you who may fear for Quin, his lingo comes from the poem Jabberwocky by Lewis Carroll. :-)

And, congratulations to Judge Pryor.

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Posted at 5:20pm on Jun. 9, 2005 We won, Ted Kennedy lost

By Quin

Oh frabjous day, Callooh, Callay!!!!!

Bill Pryor has a lifetime appointment to the 11th Circuit Court of Appeals!

We won! Ted Kennedy and Chuck Schumer and all their smear jobs failed. They lost. We won, they lost. Pryor is a lifetime judge. I can't stop saying it. This is so cool. We won, they lost. We beat Teddy K. Oh frabjous day! Callooh, callay!

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Posted at 5:00pm on Jun. 9, 2005 Yeas and Nays

By NateCT

The voting for the nomination of Judge Pryor to the 11th Circuit Court of Appeals has just commenced.

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Posted at 4:58pm on Jun. 9, 2005 Just A Few More Minutes

By NateCT

Sen. Majority Leader Frist is now on the floor and discussing this wonderful occasion, an up or down vote for Judge Pryor. Despite the ad hominem attacks by those on the left, his record clearly shows his unwavering protection of individuals and the liberties each one possesses. In just a few moments, a moment will occur which as short as three weeks ago we weren't sure would occur.

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Posted at 2:45pm on Jun. 9, 2005 Schumer lies

By Quin

On the floor just now, Chuck Schumer again accused Bill Pryor of "defending Alabama's law which has inmates stand handcuffed to a hitching post for seven hours in the hot Alabama sun with not a drop to drink." That's just false. Flat-out, totally, outrageously false. I outlined why it's false in this NRO piece two years ago. In fact, the prisoner was handcuffed ONLY if he refused to WORK in the hot sun. Handcuffed, staying still, is LESS of a physical labor thanthe alternative. Not only that, but the handcuffed inmates EXPLICITLY have the right to water. Etc. Schumer just lied.

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Posted at 1:21pm on Jun. 9, 2005 ANOTHER delay for Boyle, Kavanaugh

By Quin

Yet again, the Judiciary Committee has delayed consideration of the noninations of Terry Boyle and Brett Kavanaugh. Again, I ask, WHAT THE BLEEP is going on?!?!?!?!?!?!?! These poor guys have been twisting in the wind for well over a month at the committee level. WHy can't they at least be moved forward to the floor?

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Posted at 11:06am on Jun. 9, 2005 Three Up-Down Votes Today

By AndrewHyman

Associated Press reports that:

Senators on Thursday were expected to confirm former Alabama Attorney General William Pryor's nomination to the 11th U.S. Circuit Court of Appeals....

AP also reports that, "Michigan nominees David McKeague and Richard Griffin get confirmation votes later today."

Byron York tells the tale of how The Deal was struck. His article's titled, "Dr. Frist's Operation: How the Senate Majority Leader Played a Game of Filibuster Chicken." Here are the results of the game, according to York:

Republicans came out of the filibuster showdown with six previously filibustered nominees headed for confirmation, and, perhaps more important, in a strong position ultimately to break all the Democratic judicial filibusters, should it come to that.

A subscription is required to read the whole York piece.

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Posted at 6:55pm on Jun. 8, 2005 Good vote for Pryor

By Quin

Pryor's cloutre vote was 67-32, which is much better than Brown got. I infer from these numbers that he will do better on final passage as well. Indeed, I can see him getting 59 votes -- all Republicans (although Chafee is iffy) plus Landrieu, Mark Pryor, and both Nelsons. The REALLY cool thing would be if he could get another one -- say, Carper, or Byrd, or Salazar, or Lieberman -- and hit 60. We're within 24 hours of lifetime Judge Pryor!!!!

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Posted at 6:52pm on Jun. 8, 2005 67 to 32 for Invoking Cloture on Pryor Nomination...

By AndrewHyman

...Senator Graham presiding.

UPDATE: The vote tally is here.

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Posted at 5:30pm on Jun. 8, 2005 56 to 43 to Confirm Janice Rogers Brown

By AndrewHyman

The cloture vote on Judge William Pryor is now beginning, with a final vote scheduled for 4 PM tomorrow (maybe along with final votes on at least some Michigan nominees).

UPDATE: One Democrat voted for the Brown nomination today: Senator Ben Nelson of Nebraska.

UPDATE #2: Congratulations to Justice Brown. She will now have colder winters, and humid summers. :-)

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Posted at 3:27pm on Jun. 8, 2005 Confirm Janice Rogers Brown!

By AndrewHyman

Within the next few hours, the U.S. Senate will vote up or down on California Supreme Court Justice Janice Rogers Brown. This should be a very easy call, especially with the strong endorsement of people like Senator Specter: "If one takes a close reading as to what Justice Brown has had to say, she is worthy of confirmation by this Senate."

The most vigorous argument against her is that she would return the United States to the days of the Supreme Court's Lochner decision. Aside from the fact that circuit court judges have no such power, Justice Brown also has no such intention. Here's what she wrote in SANTA MONICA BEACH v. SUPERIOR COURT OF LOS ANGELES COUNTY:

The Lochner court was justly criticized for using the due process clause "as though it provided a blank check to alter the meaning of the Constitution as written." (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 675.) The "revolution of 1937" ended the era of economic substantive due process but it did not dampen the court's penchant for rewriting the Constitution. Although the court left the protection of property interests largely to the mercy of legislatures, it continued to apply substantive due process to the protection of civil liberties. "As several of the Justices have noted in dissent, there is only a verbal difference between the 'fundamental rights' branch of the compelling governmental interest test and the now discredited substantive due process doctrine of such cases as Lochner. . . . Both of them leave the Court entirely at large, with full freedom to enact its own natural law conceptions. The only difference is in the type of interests that are protected . . . ." (Lusky, By What Right? (1975) p. 266, fns. omitted.)

Justice Brown was exactly right. The continuing abuse of the Due Process Clause is the single greatest tragedy of American jurisprudence. (I've written about that subject myself, here.) Judges like Janice Rogers Brown may yet end that tragedy.

It's true that Justice Brown believes the Takings Clause of the Constitution packs a bigger punch than many other judges believe, but her views arise from honest conviction about what the Framers meant. This is a healthy debate, and there's no reason for the Senate to stifle it.

Katie Harbath tells me that Sen. Boxer is claiming that "anyone who knows anything about California politics knows that it is very rare that judges are made into an election issue. We usually approve our judges." In other words, Sen. Boxer wants everyone to ignore that Justice Brown, with 76 percent of the vote, received the highest vote percentage of all justices on the ballot the year of her retention election. Sen. Boxer would also have us ignore that, in November 1986, California Chief Justice Rose Bird and two other liberal members of the California Supreme Court were voted out of office in large part for their activism in reversing death penalty cases. In other words, Senator Boxer knows very well that 76 percent of California did not vote to retain Justice Brown by accident. The people of California know that even Justice Brown's most controversial opinions have been well within the mainstream of American thought and culture.

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Posted at 10:43pm on Jun. 24, 2005 People get ready . . .

By feddie

. . . there's a vacancy comin'.

And when it happens, just remember who gave you the original heads up. :)

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Posted at 9:01pm on Jun. 24, 2005 President's Statement About Judicial Activism

By AndrewHyman

The President made a statement about judicial activism, and it's interesting. Here's an excerpt, which starts out discussing Chief Justice Charles Evans Hughes, who served on the Supreme Court between 1910 and 1941.

[A]s Chief Justice Hughes has said, ââ‚Å“We are under a Constitution, but the Constitution is what the judges say it is." The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third House of the Congress --- a superlegislature, as one of the justices has called it --- reading into the Constitution words and implications which are not there and which were never intended to be there.

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution --- not over it. In our courts we want a government of laws and not of men.

I want --- as all Americans want --- an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written --- that will refuse to amend the Constitution by the arbitrary exercise of judicial power --- amendment by judicial say-so.

Click here for the full transcript. President Bush --- like his predecessor FDR --- disagrees with what Chief Justice Hughes said. However, Anthony Lewis of the New York Times has just written a book review praising Hughes and his judicial activism. Lewis apparently thinks that the United States Constitution has no meaning except what judges say it means.

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Posted at 5:56pm on Jun. 24, 2005 Senate Judiciary Subcommittee Has Dramatic Hearing

By AndrewHyman

On Thursday, there was a Senate hearing about whether or not the Roe v. Wade opinion should continue to stand. The title of this article that I've linked to is "Senate Panel Girds for Abortion Fight: Amid the Possibility of a Supreme Court Vacancy, Witnesses, Including 'Roe,' are Summoned." Indeed, the abortion issue would probably play a role in any future Supreme Court confirmation, just as it has played a role in the circuit court confirmation battles. Ed Whelan (of Bench Memos) testified:

"Roe is the Dred Scott of our age," said Edward Whelan, president of the Ethics and Public Policy Center, a Washington think tank, referring to the Supreme Court decision that upheld slavery and was later discredited. "Like few other Supreme Court cases in our nation's history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government." Arguing that the court had overstepped its bounds and engaged in judicial legislating, Whelan called the case "a lawless power grab by the Supreme Court, an unconstitutional act of aggression."

I agree with Whelan. His full statement can be found here. Also, some famous quotations about abortion can be found here.

UPDATE: The following June 24 Planned Parenthood press release is the latest indication that the abortion issue would play a prominent role in a Supreme Court confirmation: "Potential Supreme Court Retirement(s) Fuel Battle Over Reproductive Rights; Resignations Would Launch High-Stakes Struggle Over Women's Health and Rights, Says Planned Parenthood of NYC." If any more proof were required, just click one of these links: www.stopgarza.com. www.stopluttig.net. www.stopalito.net. I hope President Bush will continue to demonstrate that people can firmly support equal rights for women, and yet also be firmly committed to finding a better way of dealing with this life-and-death issue than blindly following an unwise (and unconstitutional) Supreme Court decision.

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Posted at 1:03pm on Jun. 24, 2005 Kurtz and Bazelon on SCOTUS Vacancies

By AndrewHyman

Howard Kurtz has lots of Supreme Court resignation scuttlebutt in the Washington Post. Also, Emily Bazelon and David Newman profile the candidates on their "short list," in Slate: Luttig, Roberts, Garza, Alito, Clement, Gonzales, Wilkinson, and McConnell. Hat tip to How Appealing for the Slate link. John Roberts may be surprised to learn that Slate has him pegged at 55 years of age.

Info about each of the SCOTUS candidates is linked at the right side of the confirmthem home page. As those links indicate, the Republican base is highly ambivalent (if not opposed to) nominations of Gonzales, Wilkinson, or McConnell. This is the first time that Clement has shown up on a short list, as far as I know; I've come across much more about the other Edith: Judge Edith Jones.

Anyway, this is all just premature speculation, as there are no vacancies.

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Posted at 9:39am on Jun. 24, 2005 Hillyer and Ponnuru on SCOTUS Vacancies

By AndrewHyman

Quin Hillyer thinks that Chief Justice Rehnquist ought to retire. And, Ramesh Ponnuru thinks that the president should nominate justices who will get between 50 and 60 votes. Hillyer and Ponnuru both have persuasive arguments, and I'll agree with them.

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Posted at 9:46pm on Jun. 23, 2005 Big Decision Today About Takings

By AndrewHyman

I know it's not really "confirmthem" material, but I just wanted to say a few words about the case of Kelo v. City of New London which the Supreme Court decided today.

I was disappointed that none of the justices really got to the heart of the matter, although (as usual) Justice Thomas came closest. The Fifth Amendment prohibits the government from taking private property for public use without just compensation. The issue in this case was whether or not there was a "public use," seeing as how the City of New London wanted to take private property for purposes of economic revitalization.

The majority of the justices found there was a public use, and the minority found there was not. The case was decided 5-4. Dissenting were O'Connor, Rehnquist, Scalia, and Thomas.

All of the justices agreed that, if there is no public use, then the Constitution doesn't allow a taking, with or without compensation. But this is by no means clear from the text of the Fifth Amendment.

In his dissent, Justice Thomas attempted to explain why the absence of a "public use" means that a taking must be unconstitutional. He wrote that, if the government were "free to take property for purely private uses without the payment of compensationâ₦[t]his would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation." Paradoxically, however, Justice Thomas also acknowledged that, ââ‚Å“Some state constitutions at the time of the founding lacked just compensation clauses and took property even without providing compensation.ââ‚¿ So, the prohibition on takings for private use really was not a bedrock constitutional principle, after all. That principle may have usually been adhered to by legislatures, but it was not constitutionally required in some of the states.

Therefore, it would have been plausible for the framers of the Fifth Amendment to require compensation for public use takings, while allowing private use takings just like some of the state constitutions did. After all, the plain language of the Fifth Amendment doesn't say anything about takings for private use.

My own view is that a law unjustly taking from person A to benefit person B for strictly private purposes, is a law that forces A to serve B, thereby creating "involuntary servitude" under color of law, in violation of the Thirteenth Amendment. There's no need to overstretch the Takings Clause.

I might add that it was surprising to see all of the so-called "conservative" justices endorse an extremely controversial principle stated long ago by Justice Samuel Chase: "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." In other words, judges can strike down whatever legislative acts they please.

UPDATE: I've been studying this stuff a bit more, and it seems to me that James Madison (who wrote the Takings Clause) probably wanted the phrase ââ‚Å“for public useââ‚¿ to mean ââ‚Å“for use by someone other than the original owner.ââ‚¿ Thatââ‚â„¢s the interpretation that makes most sense to me, given that he wanted the Takings Clause to cover government action that freed slaves, and also wanted it to cover government action that took land from loyalists and gave it to other private citizens. See here. Thus, it still seems to me that the so-called Public Use Clause does not require use by the general public, or require a public purpose. Rather, the words "for public use" were probably meant to distinguish from takings that are motivated by other factors (e.g. penalty against the original owner). It's not a simple issue, and I look forward to studying it some more. Additionally, I don't see why the Fifth Amendment's requirement of "just compensation" must always mean fair market value; there must be a way to increase compensation in order to address one's emotional attachment to one's home.

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Posted at 5:58pm on Jun. 23, 2005 Dems Urge Bush to <strike>Abdicate Authority</strike> Consult

By AndrewHyman

Democrats in the U.S. Senate are again seeking consultations before President Bush submits nominees. Here's Senator Reid today:

There is a long tradition of Presidents consulting with the Senate before a nomination occurs. In 1869, President Grant appointed Edwin Stanton to the Supreme Court in response to a petition from Senators and House members. In 1932, President Hoover shared with Senator William Borah a list of the candidates he was considering to replace Justice Oliver Wendell Holmes. Borah persuaded Hoover to move the name that was on the bottom of the list to the top. That candidate, Benjamin Cardozo, was confirmed unanimously.

Liberal legal scholar Michael J. Gerhardt has written that the Grant episode in 1869 and the Hoover episode in 1932 represented "Presidential Abdication of Authority." And, in those two cases it was the Senate majority that was bossing the president around! Gerhardt wrote that it was "a large majority of the House and Senate" that urged Grant to nominate Stanton. Likewise, Senator William Borah was the Chairman of the Senate Foreign Relations Committee --- not the ranking member.

Even liberal Democrats like John Podesta and Mark Agrast "do not suggest that the Constitution requires" consultation before the President makes a nomination --- much less requires consultation with the minority.

It's true that Senator Hatch advised President Clinton in 1993 to consider nominating Ruth Bader Ginsburg or Stephen Breyer to the Supreme Court. However, Hatch certainly never threatened a filibuster if he didn't get his way.

Listening to friendly advice and consultation is fine if the President is so inclined, but the Democrats want to offer their advice at the point of a gun. As Senator Reid puts it: "meaningful consultation with the Senate will help us avoid a divisive episode like we saw over the nuclear option."

UPDATE: Edward Whelan has a piece in National Review on June 24 regarding this subject. Bench Memos also covers the subject. And, Senator Schumer's website has a copy of a letter that 45 Senators sent June 23 to President Bush, requesting consultation.

UPDATE #2: Senator John Cornyn sent a letter to President Bush on June 17, 2003 that set forth some relevant information:

As renowned constitutional scholar and historian David Currie has pointed out. . . . ââ‚Å“Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations." Alexander Hamilton wrote in Federalist No. 76 that . . . . ââ‚Å“In the act of nomination, [the President's] judgment alone would be exercised." Law professors frequently consulted by Senate Democrats have expressed similar views. Professor Cass Sunstein, for example, has agreed that "the Constitution contemplates no formal prenomination advisory role for the Senate but reserves the act of nomination exclusively to the President." Professor Michael Gerhardt has similarly explained that "the Constitution does not mandate any formal prenomination role for the Senate to consult with the president; nor does it impose any obligation on the president to consult with the Senate prior to nominating people to confirmable posts."

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Posted at 1:36am on Jun. 23, 2005 Hewitt, Kristol, and Hawkins on a Gonzales Nomination

By AndrewHyman

Hugh Hewitt interviewed Bill Kristol today, and they discussed a possible Gonzales nomination. I agree with both of them that Gonzales does not seem to be in the mold of Thomas or Scalia. It would be small consolation if there are two vacancies next week, and the other vacancy goes to someone more like Thomas and Scalia. The pertinent part of the transcript from the Hewitt-Kristol interview is below the fold.

John Hawkins over at Right Wing News is also concerned about the prospect of a Gonzales nomination:

[I]t would be a huge mistake to nominate someone like Alberto Gonzales who's so moderate that a Gonzales for O'Connor swap would be considered by the base to be a wash. . . . Just imagine another brouhaha that the base perceives themselves to be on the losing side of after being sold out by the Senate --- again --- and by the President himself. That could be the sort of moment for Bush that breaking the, "Read my lips, no new taxes" pledge was for his father --- a complete political disaster that has the potential to permanently damage Bush with the base --- and turn a 2-3 seat gain in the Senate in 2006 into a 2-3 seat loss. The base is already generally unhappy with the Republican Party over the deficits, illegal immigration, and judges as it is --- Gonzales could be the straw that breaks the camel's back. Bush made a promise to appoint conservative judges to the SCOTUS both in his 2000 & 2004 campaigns and he better stick to it even though it means his buddy Alberto Gonzales won't get appointed. That applies, even if it turns out Kristol's hunch about O'Connor is completely off the mark.

If there are two Supreme Court vacancies next week, then surely two of the following would be good replacements: Alito, Garza, Jones, Estrada, Cornyn, Pryor, and Luttig. Or maybe Roberts. But please let's stick with originalists/strict constructionists who will not legislate from the bench, and who will repeal previous judicial legislation.

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Posted at 10:26pm on Jun. 22, 2005 Deconstructing Kristol's Speculation

By DanCT

Kristol's speculation about the Gonzales for O'Conner trade appears to be based solely on his own, private musings. He writes:

He is smart, insightful, reads a lot, knows a lot of people -- Mr. Kristol is indeed well-informed; but on this story, he does not indicate that he has an informant or even a shred of inside information. It is simply a wild guess.

He may well be right about O'Conner, but Gonzales? The last thing this squishy court needs is another moderate. Other well-informed opinion (e.g., Whelan and Levin) give some additional reasons why Gonzales would not be a good choice.

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Posted at 9:50pm on Jun. 22, 2005 Miscellaneous Background Info About Attorney General Gonzales

By AndrewHyman

In the year 2000, the Texas Supreme Court issued an opinion titled In Re Jane Doe, in which that court held that a minor seeking an abortion did not need to notify either of her parents. Then-Justice Alberto Gonzales fully joined in that opinion of the court, but then-Justice Priscilla Owen dissented. Following are some excerpts from Owenââ‚â„¢s dissent. These excerpts are understandably of concern to many people wary of a Gonzales nomination to the Supreme Court.

"[T]his Court has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusions. The Court has forsaken any semblance of abiding by principles of appellate review."

"The Court has disregarded the law and has trampled the process on which the legitimacy of our law depends."

Personally, I have not examined this case in enough detail to determine if Justice Owen was right or wrong. That would require not just reading all of the opinions in this Texas Supreme Court case, but also would require reading the lower court opinions, as well as the complete record in the case. But this much is pretty clear: nominating Attorney General Gonzales for a position on the U.S. Supreme Court would be highly controversial among Republicans more than among Democrats. There are plenty of possible U.S. Supreme Court nominees for whom this would likely not be the case, including but not limited to: Alito, Garza, Jones, Estrada, Cornyn, Pryor, and Luttig.

UPDATE: The Washington Post reported as follows on September 10, 2005:

As Bush's White House counsel, Gonzales again clashed with conservatives over the administration's approach to affirmative action. When the use of race in admissions at the University of Michigan came before the Supreme Court in 2003, then-Solicitor General Theodore B. Olson wanted to confront affirmative action programs head on. Gonzales, then the White House counsel, argued for the softer position the administration ultimately took, which objected only to the way in which Michigan had pursued its diversity goals..."Al Gonzales has never said or written anything to indicate that he has pronounced conservative convictions -- it's been a symphony of silence," said Bruce Fein, a conservative legal scholar who served in the Justice Department during the Reagan administration....Kay Daly, president of the Coalition for a Fair Judiciary, does not want to take a chance -- and believes that in the end Bush will not either. "We expect President Bush to keep his promise" to appoint a conservative justice in the mold of Clarence Thomas and Antonin Scalia, she said, "and there are others who fit that mold more closely."

National Review had an editorial June 28, 2005 urging that Gonzales not be nominated for the Supreme Court.

Also on June 28, 2005, Robert Novak called Gonzales "markedly less conservative than any other [prospective] nominee."

Novak also wrote an article on January 23, 2003 about Gonzales's role with respect to affirmative action.

Ed Whelan recently pointed out on June 20 that, as a Supreme Court Justice, Gonzales might have to recuse himself in a wide variety of cases.

Hugh Hewitt and Bill Kristol discussed the prospects for a Gonzales nomination on June 22, 2005 (the transcript is here), and Kristol said, "I still think that Gonzales is unlikely to be much of an improvement on Oââ‚â„¢Connor, and I would prefer to really have two solid conservatives."

At redstate.org, Mike Krempasky urged on June 27, 2005 that Gonzales not be nominated for Supreme Court, and reported on July 1 that General Gonzales is campaigning for the nomination. I wish Mike would spill the beans and say how he really feels.

The Supreme Court Nomination Blog (SCtN) has a profile of Attorney General Gonzales, and a very informative set of links, here.

Human Events wrote back in 2001 about the role of Attorney General Gonzales in the parental notification case. Human Events also published this email referenced in the NY Times, and the email is disturbing if accurate.

Generally speaking, Gonzales has a very controversial attitude about the Supreme Court's role. He says: "The Constitution is what the Supreme Court says it is."

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Posted at 9:01pm on Jun. 22, 2005 Kristol

By DanCT

As Nathan pointed out, Bill Kristol is quite pessimistic about next week: O'Conner steps down, and Bush nominates Gonzales as CJ. He states clearly the consequences of such a move:

A Gonzales nomination would, in my view, virtually forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence.

He is right about what the consequences would be, but I'm betting Bush is both smarter and more politically gutsy than to nominate Gonzales in order to "overcome a threatened Democratic filibuster".

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Posted at 8:30pm on Jun. 22, 2005 O'Connor, Not Rehnquist

By NateCT

That's what Bill Kristol believes/speculates. To be honest, I find this [speculation] quite plausible. Consider:

(1) There will be a Supreme Court resignation within the next week. But it will be Justice O'Connor, not Chief Justice Rehnquist. There are several tea-leaf-like suggestions that O'Connor may be stepping down, including the fact that she has apparently arranged to spend much more time in Arizona beginning this fall. There are also recent intimations that Chief Justice Rehnquist may not resign. This would be consistent with Justice O'Connor having confided her plan to step down to the chief a while ago. Rehnquist probably believes that it wouldn't be good for the Court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed.

(2) President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do.

Kristol goes on to explain the argument for such scenario is that Gonzales would be no-less conservative than O'Connor; the battle over confirmation wouldn't be too ugly and when the time came for Rehnquist to step down, a stalwart conservative could be nominated. Thoughts?

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Posted at 4:56pm on Jun. 22, 2005 William Rehnquist Has Resigned?

By AndrewHyman

That's what they say here.

UPDATE at 4:09 PM: Here's what Rambling's Journal says:

According to syndicated radio host Hugh Hewitt, Supreme Court Chief Justice William Rehnquist will announce his retirement from the bench this coming Monday (6/27). Hewitt also says that President Bush will announce his Supreme Court nominee on Tuesday.

I wonder if Rehnquist knows about this.

UPDATE at 4:27 PM: More about what Hugh said is available from Daly Thoughts. Also, Drudge basically repeats what I've said here in this post. That's the Drudge Retort as opposed to the Drudge Report.

UPDATE at 10:46 PM: More chatter here.

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Posted at 1:54pm on Jun. 22, 2005 Long, Presser, and Holmes on the Law

By AndrewHyman

Wendy Long and Stephen Presser have an online discussion about this whole judicial nomination business. They both are correct that --- by and large --- this is a contest between two camps: those who believe in the rule of law, versus those who believe in the rule of judges.

Presser and Long characterize Justice Oliver Wendell Holmes as having been a leader of the latter camp, and therefore Presser and Long are scornful of the old ââ‚Å“Yankee from Olympusââ‚¿ (not scornful of his military service, but of his judging). However, Holmes --- also known as ââ‚Å“The Great Dissenterââ‚¿ --- was evolving in the right direction. Teddy Roosevelt nominated him in 1902, and he was confirmed by the Senate TWO DAYS LATER. Holmes then served for 29 years, retiring at the nice round age of 90, in 1932.

One of his last dissents was in 1930, after the Great Depression had struck. Perhaps the stock market crash influenced his thinking. In any event, hereââ‚â„¢s what Holmes said, in Baldwin v. State of Missouri, 281 U.S. 586, 595 (1930) (joined by Justices Brandeis and Stone):

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. . . . Of course the words "due process of law" if taken in their literal meaning have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass. . . . It seems to me to be exceeding our powers to declare . . . a tax a denial of due process of law. . . . by evoking a constitutional prohibition from the void of 'due process of law' when logic, tradition and authority have united to declare the right of the State to lay the now prohibited tax.

I would only add that it is never too late to correct a gross misinterpretation of the Due Process Clause. Incidentally, Holmes became the oldest Supreme Court Justice in history. The youngest was Joseph Story, at age 32.

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Posted at 9:21am on Jun. 22, 2005 "White House Pares Picks for Top Court"

By AndrewHyman

The Chicago Tribune reports:

Senior White House officials and Atty. Gen. Alberto Gonzales have interviewed top candidates and briefed President Bush, but the president has not made a decision, said the official, speaking on condition of anonymity.

White House officials also consider Gonzales to be a possible nominee, according to the official and other sources close to the administration. But the focus has been on the other judges, leaving Gonzales in a separate category because of the president's longstanding familiarity with him, the official said.

Gonzales, 49, would meet fierce opposition from the conservative groups that see him as too moderate to replace the conservative Rehnquist.

....

But officials are not ranking the contenders or making recommendations to the president because they are "serious about being respectful to the chief [justice]," the official said.

....

Sources close to the White House said McConnell and Pryor are long shots.

....

Here are some top contenders.

SAMUEL ALITO

Federal appeals court judge in Philadelphia is called "Scalito" because he shares Justice Antonin Scalia's conservative views, though not his sharp elbows.

ALBERTO GONZALES

As attorney general, he has been part of the vetting process, but he may be the favorite.

Bush is reported to like the idea of the "Gonzales Court."

J. MICHAEL LUTTIG

Federal appeals court judge from Virginia is known for his sharp intellect and crisp writing. Bush's father put him on the appeals court.

JOHN ROBERTS

Appeals court judge for the D.C. circuit was considered one of the top appellate lawyers to argue before the Supreme Court.

The article also mentions that Judge Wilkinson is under consideration. Judges McConnell and Wilkinson have great jobs on the circuit courts, and it would be very unfortunate if either of them were to leave. Likewise, Alberto Gonzales is doing great work as Attorney General, and he absolutely ought to keep at it until January of 2009. Of those mentioned, I like Pryor, Luttig, and Alito in that order, but I don't know enough about Roberts. That's my opinion. And why aren't Judges Garza or Jones on the short list? Meanwhile, the conservative group Progress for America is beginning Supreme Court ads on July 1. More info about each of the SCOTUS candidates is linked at the right side of the confirmthem home page.

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Posted at 6:47pm on Jun. 21, 2005 Ted Kennedy's Idea of Consultation

By AndrewHyman

Senator Kennedy advises us that he would support one of Luttig, Roberts, or McConnell for the Supreme Court, but Kennedy refuses to say which one. How is the President supposed to obey the Senate minority if the Senate minority won't say what they want?

Kennedy said that of the three oft-mentioned, younger appeals court judges who are candidates for the chief justice slot --- J. Michael Luttig, John Roberts or Michael McConnell --- one would be acceptable. "I'm not going to get into which one" because that would be "the kiss of death" for that person, he said.

The Dems get all upset that the President doesn't listen enough to the Senate's advice prior to nominating people, but now Kennedy refuses to advise the President of whom he'd find acceptable.

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Posted at 12:25pm on Jun. 21, 2005 Specter Says Hearing for Supreme Court Would be Slow

By AndrewHyman

If there is a vacancy for the Supreme Court soon, Senator Specter promises a long, drawn-out affair:

Specter said that any future judicial nominee would be subject to "a very, very thorough hearing."

Personally, I think it's ridiculous for nominees to have to show up at these televised inquisitions. They can answer all questions in writing. Nominees didn't start appearing for hearings until 1925, and I can't think of any useful purpose that's served, other than giving Senators an opportuinity to pontificate, and politicize the judiciary. Harlan Fiske Stone was the first judicial nominee to appear before a committee:

On January 24, 1925, five days after the Senate Judiciary Committee had recommended Stone's confirmation, Senator Thomas Walshâ₦convinced the Senate to return the nomination to committee for further review. Although President Coolidge refused to withdraw the nomination, he agreed to an unprecedented compromise. He would allow Stone to become the first Supreme Court nominee in history to appear before the Senate Judiciary Committee. On January 28, 1925, Stone's masterful performance during five hours of public session testimony cleared the way for his quick confirmation.

Returning to the pre-1925 practices seems to be what the "Gang of 14" called for in their recent deal:

[A] return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

What could do more to reduce rancor, and reverse the politicization of the judiciary, than returning to the pre-1925 tradition?

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Posted at 9:34am on Jun. 21, 2005 Pryor Sworn In

By AndrewHyman

Judge William Pryor was sworn in yesterday, to a permanent position on the 11th U.S. Circuit Court of Appeals.

The Atlanta Journal Constitution reports:

"Dreams do come true," said Pryor, 43, who began his career in law 18 years ago. "As pleased as I am today, it is important to remember that it is not about me. It is about the Constitution, which Dr. Martin Luther King called 'that magnificent promissory note for all Americans.' "

Doug Gross of Associated Press has a longer article. That AP article omits the MLK quote, and instead includes this about Pryor:

[H]e compared homosexual acts to "prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia."

This is more bogus, biased reporting from AP. Steve Dillard (a.k.a. "Feddie") addressed this subject back in 2004:

"I don't know how many times I have to say this, Pryor did not compare homosexuality to bestiality in the amicus brief he filed as attorney general in Lawrence v. Texas. Once again, I will let Judge Pryor speak for himself (in this case responding to a question posed to him by Sen. Feingold during the SJC hearing):

SEN. FEINGOLD: In a recent brief to the Supreme Court, you equated private, consensual sexual activity between homosexuals to prostitution, adultery, necrophilia, bestiality, incest and pedophilia.

ATTY GEN. PRYOR: I think my record as attorney general shows that I will uphold and enforce the law. In the Lawrence case, the first that you mentioned, I was upholding and urging the Supreme Court to reaffirm its decision of 1986 in Bowers versus Hardwick, which is the law of the land. And the argument to which you referred, the slippery slope argument, was taken from Justice White's majority opinion for the Supreme Court of the United States.

"Indeed, here is the actual excerpt from Pryor's amicus brief in Lawrence:

It should be noted, again, that the Texas statute in question does not criminalize petitioners' sexual orientation, which may or may not be a matter of choice and thus may arguably be protected from state discrimination by the Equal Protection Clause of the Fourteenth Amendment. Rather, the Texas antisodomy statute criminalizes petitioners' sexual activity,which is indisputably a matter of choice. Petitioners' protestations to the contrary notwithstanding, a constitutional right that protects "the choice of one's partner" and "whether and how to connect sexually" must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be "willing"). For all intents and purposes, petitioners seek to enshrine as the defining tenet of modern constitutional jurisprudence the sophomoric libertarian mantra from the musical "Hair": "be free, be whatever you are, do whatever you want to do, just as long as you don't hurt anybody."

Okay, that's what Feddie wrote last year. In replying to Feingold, Pryor mentioned the Supreme Court decision in Bowers. Here's what the Supreme Court wrote in that 1986 decision:

And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.

As I've written elsewhere, the U.S. Supreme Court had no legitimate power to overstretch the Due Process Clause of the Constitution in the subsequent Lawrence case in 2003. The Court yet again usurped legislative power, like it did in Roe v. Wade, Lochner, Dred Scott, and other bogus due process cases. With the best of intentions, the Court continues to shred the Constitution, and impose its will on the country. The swearing in of Judge Pryor is a modest indication that someday the rule of law may be restored, whether Doug Gross of Associated Press likes it or not.

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Posted at 3:03pm on Jun. 20, 2005 "White House Mum on Possibility of Rehnquist Retirement"

By AndrewHyman

More urgent breaking news, from Reuters. :-)

Here's an interesting article from The Hill regarding whether Senators DeWine and Graham were sent by the Senate leadership to cut a deal last month.

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Posted at 11:57am on Jun. 20, 2005 Sean Rushton's Mom Sported a "Block Bork" Button

By AndrewHyman

Urgent breaking news from the LA Times. :-)

In other breaking news, the Weekly Standard has a column by Scott Johnson discussing how Geoffrey Chaucer is relevant to filibusters of judicial nominees. Chaucer was previously mentioned here at confirmthem. The Weekly Standard also has a piece by Duncan Currie about Neas, Aron, Gray, and Rushton.

Basically, it seems to be a slow news day, which is kind of nice.

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Posted at 8:36pm on Jun. 19, 2005 Some Sunday Afternoon Stuff About Nominations

By AndrewHyman

With a little help from How Appealing, I've found a few items of interest....

There's a good profile of Judge Luttig by Tony Mauro of Legal Times here. Evidently, his present and former clerks are known as "Luttigators."

Meanwhile, Senator Specter is "Speculating" that Chief Justice Rehnquist is not going to retire. Specter and Rehnquist are both cancer-fighters, and Specter points out that having an important job is therapeutic. More of the recent retirement rumors can be found here and here. Whether he chooses to retire or not, confirmthem sends best wishes to the Chief Justice for good health.

Senator Graham recently did an interview, touching upon filibusters:

Filibustering somebody because they're ideologically conservative is no longer an acceptable objection. Ideological filibusters in the future, I think, should be rejectedâ₦.The real loser in a filibuster that is never-ending by both parties is the quality of judges. Good men and women will not come forward if they're going to have their brains beat outâ₦.Either one [Scalia or Thomas] would be excellent. They're solid conservatives. Scalia's my personal favorite, but that would be up to the president. To expect George Bush to (nominate) anybody but a conservative is unrealistic. But if we collaborate, if he will talk with the Senate, if we sit down and talk with each other, we can find a conservative to sit on the Supreme Court without blowing up the Senate.

On June 14, Senator Warner wrote an interesting letter to a constituent regarding this same issue, and the letter is available at redstate.org. Warner's letter seemed to suggest that the so-called nuclear option would not have made any difference, because there are other ways to stop nominations besides filibusters. One of the commenters at redstate took Warner to task on this point.

And finally, for now, Senator Cornyn has an excellent letter in the Sunday New York Times criticizing the Times for calling him a "rubberstamp." The full letter is rubberstamped below the fold.

To the Editor:

"The Center Can Hold" (editorial, June 12) disparages Republican senators for rubber-stamping President Bush's judicial nominees. But the constitutional role of the Senate is simply to provide advice and consent on nominees without regard to any particular numerical outcome.

Moreover, no one should be surprised if senators tend to agree with a president of the same party.

Has The Times held up to ridicule Senator Charles E. Schumer, who has yet to vote against a single Democratic president's judicial nominee; or Senators Patty Murray, Dick Durbin, Byron L. Dorgan or Christopher J. Dodd? All served during the Clinton administration yet failed to vote against a single Clinton judicial nominee.

What about Senators Joseph R. Biden Jr. and Patrick J. Leahy? They served under Presidents Carter and Clinton yet failed to vote against a Carter or Clinton judicial nominee.

Have you accused Senator Ted Kennedy of rubber-stamping nominees? He served under Presidents John F. Kennedy, Lyndon B. Johnson, Jimmy Carter and Bill Clinton and never voted against any of their judicial nominees.

Senate practice and even the Constitution contemplate deference to the president and a presumption in favor of confirmation. Further, a number of Republican senators, including me, opposed President Bush's nomination of Dora Irizarry of New York to serve on the federal bench.

John Cornyn

U.S. Senator from Texas

Washington, June 14, 2005

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Posted at 3:32am on Jun. 19, 2005 <em>Washington Post</em> Says Three Are in Running for Court

By AndrewHyman

The Post says the top three candidates to be nominated for the Supreme Court are Luttig, Roberts, and Gonzales. The Post also reports that a current justice would not be promoted to Chief Justice. Regarding Attorney General Gonzales, the Post is right that his nomination "could trigger internal dissension among GOP activists." That's probably an understatement. In fact, I'm sure it is.

Here's an excellent speech that Judge Luttig gave a couple years ago regarding "conservative judicial activism." Further info about Luttig, Roberts, Gonzales, and other Supreme Court candidates is linked at the right-hand-side of our confirmthem home page, under the heading ââ‚Å“SCOTUS candidates.ââ‚¿

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Posted at 8:03pm on Jun. 18, 2005 The Long List and the Short List from <em>AP</em>

By AndrewHyman

Associated Press has a list of possible nominees in the event of a Supreme Court vacancy, consisting of Luttig, Wilkinson, Alito, Garza, Roberts, McConnell, Olson, Thompson, Jones, Gonzales, Boggs, and Estrada. The first six are on AP's "short list." Further info about each of these people --- and others --- is linked at the right-hand-side of our confirmthem home page, under the heading "SCOTUS candidates."

Personally, I hope that whoever is chosen will understand how upsetting and wrong it has been for the Supreme Court to distort phrases like "due process" despite the original and intended meaning of the Constitution. The Court is now biding its time until its next grand edict implementing the distorted due process clause: "We must allow society as a whole, if we can, to absorb the subject," explains Justice Kennedy. Well, we didn't absorb Dred Scott, we didn't absorb Lochner, and we aren't absorbing Roe v. Wade. We don't want judges to legislate, we don't like being socially engineered by lifetime appointees, and we want the rule of law instead of the rule of judges.

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Posted at 2:55am on Jun. 18, 2005 "Coming to a Boyle?"

By AndrewHyman

James Taranto is urging that the Senate GOP not drop the ball regarding the nomination of Judge Terrence Boyle for the Fourth Circuit Court of Appeals:

[I]t's up to the seven compromisers to decide if a party-line committee vote constitutes "extraordinary circumstances." If they decide it does, then the term truly has no meaning, since party-line Judiciary Committee votes have been routine during the Bush administration. We're guessing the Dems won't filibuster Boyle, but if they do, the Republicans had better be prepared to go nuclear.

Paul Mirengoff of Power Line is also very concerned about the Boyle nomination, especially because President Bush has already gone out of his way to extend an olive branch regarding the Fourth Circuit, for example by renominating a Clinton recess appointee:

None of this olive-branching made any difference to [Senator] Edwards or his fellow Democrats. Contrary to what their apologists say, the Senate Democrats generally don't oppose nominees based on tit-for-tat. They oppose nominees based on what the liberal special interest groups instruct them to do. Thus, Boyle remains in limbo.

Limbo is not a place where nominations typically gain strength. And, I agree with Paul Mirengoff that Senate Democrats have not been interested in tit for tat; if that had been their modus operandi, then they never would have begun history's first-ever filibusters of circuit court nominees.

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Posted at 8:35pm on Jun. 17, 2005 Friday Evening Dicta

By AndrewHyman

AP has an article titled "Bush Advised to Wait on Top Court Nominee." The idea is that, if a vacancy occurs at the end of June, and Congress is in recess during August, then it might be best to wait until Congress returns before nominating a successor. That way, special interest groups wouldn't be able to beat up on a nominee throughout August.

On the other hand, special interest groups (and especially one group in particular) are already getting ready to attack a bunch of prospective nominees all at once. For example, try clicking on one of these links and see what happens. www.stopgarza.com. www.stopluttig.net. www.stopalito.net.

Meanwile, Nina Totenberg speculates about possible Supreme Court nominees (this is an audio segment). She mentions that Emilio Garza is "certainly qualified in legal terms."

And, the Fort Worth Star-Telegram also speculates about possible Supreme Court nominees who are from Texas.

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Posted at 12:51pm on Jun. 17, 2005 Leahy Comes Around, Possibly Perhaps

By AndrewHyman

Maybe it was sincere, or maybe it was sarcastic, but on June 14 Senator Patrick Leahy of Vermont endorsed up-or-down votes for nominees who make it out of the Judiciary Committee to the Senate floor (such as for Tom Griffith). Here's what Leahy said:

I am glad to hear the distinguished leader say nominees deserve an up-or-down vote.

We'll see how long this sentiment lasts. If Leahy is sincere, then he ought to accept Senator Frist's compromise offer.

Incidentally, I've updated my earlier post about judicial activism.

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Posted at 12:59pm on Jun. 16, 2005 Judge Terrence Boyle Approved by Judiciary Committee 10-8

By AndrewHyman

Associated Press quotes Senator Hatch as follows:

"He has now waited 14 years to come to this committee," Hatch said. "I have to say, he's an excellent judge, his reversal rate is less than the average, he has more than shown he's not only adequate but he's very very good. You might differ with him for any reason you might choose to do so, but you can't say he's a bad judge."

More info about Judge Boyle is here.

UPDATE: Reuters has this to add:

Graham said, "I don't think there's any extraordinary reason" to filibuster Boyle, but if Democrats raised a procedural roadblock he would consider their caseâ₦. Republicans will likely wait at least until next month before bringing the Boyle nomination up for a Senate vote.

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Posted at 11:34pm on Jun. 15, 2005 Wednesday Evening Miscellany

By AndrewHyman

ABC News has a new poll out:

Fifty-one percent in this ABC News/Washington Post poll say the Senate should consider a judge's views on political issues, not solely his or her background and qualifications. But nearly as many, 46 percent, say politics should be left off the table.

More about the poll results here. The increasing politicization of the confirmation process is a tragedy, and one which can best be alleviated by confirming judges who follow the law, instead of making policy themselves.

Tomorrow, Judge Boyle may finally clear the Judiciary Committee.

The Federalist Society is out with a report detailing why conservative nominees on the Supreme Court would not jeopardize New Deal legislation (hat tip to Bench Memos, and note that the report is also now linked under "documents" at the right side of our home page).

The Hill has this report about the gobs of money that may be spent if Chief Justice Rehnquist really decides to hang up the robe:

Progress for America (PFA), a group that is quickly becoming the conservative counterpart to liberal 527 groups such as America Coming Together (ACT), pledged yesterday to spend at least $18 million on the expected fight to replace William Rehnquist, chief justice of the U.S. Supreme Court.

PFA, if you're having trouble figuring out how to write your budget, please don't hesitate to consult with confirmthem. We would be glad to lavish the money on ourselves advise an optimum allocation of resources.

I previously mentioned that people are snapping up domain names in anticipation of the Supreme Court battles. Power Line has also commented on this new craze, which prompted this response titled "Is PowerLineBites.com Taken?" By the way, here's some free advice to PFA: don't waste the 18 million on domain names!

Finally, for now, Matt Tilley of the Daily O'Collegian in Oklahoma has an essay that includes these wise words:

[A]llowing judges to be voted on by the entire Senate by a simple majority would be the precise definition of democracy, not the end of democracy as we know it.

Which reminds me that the New York Times can't count.

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Posted at 7:59pm on Jun. 15, 2005 Worry About Wilkinson

By carney

Terry Jeffrey has a must-read article about one of Bush's potential picks, J. Harvie Wilkinson. Nominating this man to the High Court could be disastrous. Particularly worrisome are his views on abortion and interstate commerce.

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Posted at 10:35am on Jun. 15, 2005 Some Wednesday Morning Stuff About Judges and Filibusters

By AndrewHyman

Terence Jeffrey writes that there is now a "short list" for Supreme Court:

The rumored "short list" features some stellar federal appellate judges with credible records as strict constructionists: Michael Luttig of the 4th Circuit, Edith Jones of the 5th, Samuel Alito of the 3rd and Michael McConnell of the 10th.

Jeffrey also writes about his reservations regarding James Harvie Wilkinson III. Note that there were recently some more comments here at this blog about Judge McConnell.

John Manesis of Fargo, North Dakota has a few remarks about "The Deal" in a letter to the editor, from which I clipped this:

The 14 fence-riding senators should be ashamed of themselves. Instead, they brag about their powers of mediation and allow for future filibusters under "extraordinary" circumstances. This is leadership?

Perhaps a bit harsh, but we'll see how things play out. Finally, it's worth briefly noting that the recent Senate Resolution 39 was a noble effort to come to terms with a dark and shameful chapter of American history. The Resolution apologizes for the Senate's response to lynchings, but interestingly makes no mention of the word "filibuster." The filibuster, after all, was the tool used to repeatedly scuttle anti-lynching laws. Nor does the Resolution mention which part of the Constitution it was that empowered Congress to pass anti-lynching laws. (I would guess that Congress could have acted to enforce the Equal Protection Clause of the 14th Amendment.)

Incidentally, here's an article about a very recent Ohio congressional primary in which filibusters were apparently an issue.

UPDATE: How Appealing quotes an article today in Roll Call:

"Girding for an imminent Supreme Court vacancy, some Senate Republicans are pushing to move the nominee through the Judiciary Committee in a matter of weeks rather than allowing more time for liberal opposition to mount throughout the summer. And in one of the most intriguing twists, Sen. John Cornyn (R-Texas), a key member of Judiciary, said Tuesday that the White House is considering putting off announcing who the nominee is - if there's an opening - until later in the summer to delay the amount of time liberal activists would have to attack the nomination."

Also, Hugh Hewitt recently interviewed Ken Starr, and they discussed things like what questions are proper or improper for Senators to ask of Supreme Court nominees. Senator Durbin has already signalled that there would be lots of questions about Griswold v. Connecticut.

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Posted at 12:29pm on Jun. 8, 2005 Votes Today in Senate

By AndrewHyman

It's very likely that the U.S. Senate will have an up-down vote at 5 PM today on Janice Rogers Brown, and then possibly a cloture vote on William Pryor later in the day.

For those of us who remember watching black and white TV in the 60's and 70's, it's kind of amazing that all of the Senate's proceedings are now available live and in color, via internet, for free. Just click here (Real Player required). If that link doesn't work for you, then go to the right-hand-side of our home page, and click on C-Span (under the category "organizations"). Or, just do the work you're supposed to be doing. :-)

UPDATE: Below the fold is an excellent speech that Senator Specter gave on Monday, endorsing confirmation of Justice Brown. I've copied it from the Congressional Record.

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Mr. SPECTER. Mr. President, I have sought recognition to support the proceeding to invoke cloture, cut off debate, on California State Supreme Court Justice Janice Rogers Brown, and to bring her to a vote for confirmation to the Court of Appeals for the District of Columbia Circuit. Justice Brown comes to this body with a truly outstanding academic and professional record. She is a graduate of the California State University-Sacramento in 1974. She received her law degree from the University of California at Los Angeles in 1977 and then has had an illustrious career in government in the practice of law and on the bench. She has served in very important legislative roles with the California Legislative Counsel Bureau where she was deputy legislative counsel. She was deputy

[Page: S6077]

attorney general for some 8 years; deputy secretary and general counsel for the State of California Business, Transportation and Housing Agency for 3 years, and then came to the court of appeals, which is an intermediate appellate court in California, for 3 years before becoming a justice on the Supreme Court of California, where she has sat since 1996 until the present time.

During the midst of her career, she has gone on to get a master's degree at the University of Virginia School of Law in the year 2004 which, I would say, is quite an achievement for someone who has been in the California court to take on that kind of academic endeavor and to earn a master's degree.

Beyond her professional work, she has been very active in the community, working with the Youth for Citizenship which serves young people, high school students, teaching them history, civics, reasoning, and debating skills.

She is a participant in a program called ``Playing by the Rules'' sponsored by a local baseball team, which brings together lawyers, judges, baseball, and elementary and junior high school students to explore life lessons, good citizenship, and the rule of law.

She is a founding board member of Rio Americano High School's Academy Civitas, a 3-year program which specializes in history and political philosophy and seeks to encourage civic virtue by having students participate in internships with Government agencies.

She is the first African-American woman to serve on California's highest court. She is the daughter of sharecroppers, having been born in Greenville, AL, in 1949, 5 years before Brown v. Board of Education. She attended segregated schools and came of age in the midst of Jim Crow policies in the South, which is not easy to do.

With all of that, she has had an extraordinary and really illustrious career.

I suggest to my colleagues in the Senate that the confirmation process of Justice Janice Rogers Brown would not be nearly so complicated if it were not set in a timeframe where, for the past two decades, virtually, there has been an exacerbation of the issue of confirmation of judges when one party held the White House and the other political party held the Senate and the Judiciary Committee.

I have served on the Judiciary Committee since my election in 1980. I personally observed, in the last 2 years of President Reagan's administration, after Democrats won control of the Senate in the 1986 election, that the process was slowed down, and the process was further slowed down during the full 4 years of the administration of President George Herbert Walker Bush. I have detailed these in previous floor statements and will not now reiterate them.

Then, in the last 6 years of President Clinton's administration, nearly 70 nominees by President Clinton were held up in committee, and that was payback, in effect, for what had happened for the last 2 years of President Reagan's administration and the 4 years of the administration of the first President Bush.

When the Republicans won control of the Senate, the Democrats then resorted to the filibuster, which was the first systematic use of the filibuster against judicial nominees in the history of this country. That was followed by President Bush's use of the interim appointment power, the first time in history that the interim appointment power had been used for a judicial nominee after a rejection by the Senate, albeit by the filibuster route. That stopped when there was a commitment made not to use it any more, and the nomination process went forward.

Let us take a look at the record of Justice Janice Rogers Brown and take a look at the record of Justice Owen, now Judge Owen confirmed to the Fifth Circuit Court of Appeals, or Judge Pryor, whose nomination will be before the Senate hopefully in the next several days. We have confirmed many circuit judges during my tenure since my election in 1980, all which I have spent in the service of the Judiciary Committee, who had records not as good as those of Justice Brown or Justice Owen or Judge Pryor. Had we had not been in this situation of holding up judges when one party controlled the White House and the other controlled the Senate and the exacerbation of this situation, we would not have reached the critical stage in which the Senate has been in the immediate past.

We have seen a situation where the filibuster went on and, in my own personal opinion--and I have expressed this at some length in prior floor statements--Democrats were not really pleased with this systematic filibuster. That led to the potential retaliation of the Constitution or nuclear option. I do not think many, if not most, of the Republicans were pleased with that sort of an alternative. But the whole situation had spiraled out of control.

As Senators, we do have a fundamental constitutional obligation to consent, if we choose to do so, to the President's nominees to the bench. This is an advice and consent function under the United States Constitution. That does specify--I think it is more than implication, I think it is really specification--that there be independent judgment used by Senators in coming to that decision. Just as there is a requirement of independence, if there is to be separation of power, then the party which controls the White House ought not to be an automatic rubberstamp for the President. Similarly, the party out of power ought not to be an automatic filibustering machine; there ought to be independent judgment. And that is why I had urged the leaders, again in extended floor statements which I shall not now repeat, to liberate their Members from the straight party-line, straitjacket vote and allow them to exercise their independence. I think if the 100 Senators were left to our own judgments as to what kind of a nominee ought to be filibustered, Justice Janice Rogers Brown would never have been filibustered. Similarly, if we Senators--Republicans on the situation of the constitutional or nuclear option--had been left to our own judgment, we would have rejected the idea of having the constitutional or nuclear option.

So we have come to a situation now where at least we have moved to confirm Justice Owen, and we are on the brink of the confirmation process of Justice Brown with, as we all know, the agreement of some 14 Senators that there would not be a filibuster as to Justice Brown.

It is true that if you take a look at some of Justice Brown's statements in a context of diplomacy, they might have been left better unsaid, but if everybody in public life--and that would even include Senators--were held to every last syllable that each of us uttered, it would not be a very difficult matter to go through the tracks of speeches each of us has made and find some items on which to be highly critical.

Justice Brown has been criticized for a comment which she made criticizing Justice Holmes' dissent in Lochner, where she referred to the ``triumph of our own socialist revolution'' in 1937. But if we take a look at Justice Brown's decisions, we find her decisions are not in line with that kind of a loose condemnatory statement.

In Lochyer v. Shamrock Foods, Justice Brown joined the court's opinion upholding California's stringent standards, which exceeded Federal standards, for identifying and labeling milk and milk products. That is hardly an inactive government.

In the case of Lungren v. Superior Court, she joined the court's opinion, broadly construing the phrase ``source of drinking water'' in the State's clean water statute so that plaintiffs could proceed with their case. Again, not exactly denial of governmental authority.

In the case of Ramirez v. Yosemite Water Co., she joined the court in upholding State regulations regarding overtime pay that applied greater protection to workers than Federal law. Here, again, that is active State regulation.

In Pearl v. Worker's Compensation Appeals Board, she joined the court's opinion, upholding the Worker's Compensation Board's stringent standards for ensuring the safety of workers, awarding the plaintiff, an injured police officer, higher benefits; again, sound judicial thinking and not exactly denial of the authority of the State to legislate and look after the common welfare.

She made a statement with respect to discrimination saying it is not ``..... based on age is not ..... like race and sex discrimination. It does not mark

[Page: S6078]

its victim with a `stigma of inferiority and second class citizenship'; it is the unavoidable consequence of that universal leveler: time.''

That is perhaps an effort to be scholarly, perhaps to be poetic, but hardly disqualifying.

If we take a look at her opinions on the bench, they demonstrate a very distinctive regard for civil

rights. In People v. McKay, hers was the lone dissent, arguing for the exclusion of evidence of drug possession that was discovered after the defendant was arrested for riding his bicycle the wrong way on a residential street. Her dissent pointedly suggested that the defendant was the victim of racial profiling and included an impassioned critique of that practice.

In Kasky v. Nike, the court held that Nike's statements denying mistreatment of overseas workers constituted commercial speech subject to the State truth in advertising laws. Justice Brown dissented saying that Nike's speech constituted noncommercial speech worthy of more strict first amendment protection. Upon appeal, the Supreme Court denied certiorari, but in opinions issued by Justices Breyer and Stevens, there were strong suggestions that if the Court had taken the appeal, Justice Brown's position might well have been upheld, in a very difficult case, where it is hard to draw the line as to what constitutes commercial speech or what is noncommercial speech entitled to more stringent protections under the first amendment.

In this case, as in so many others, Justice Brown demonstrated a real concern for constitutional protections.

In re Brown, she wrote the court's opinion reversing a verdict and death sentence on grounds that the prosecutor deprived the defendant of a fair trial by failing to discover and disclose an arguably exculpatory blood test.

In Visciotti, she dissented from the majority opinion, arguing that a defendant's death sentence should be set aside on grounds of ineffective assistance of counsel.

In the interest of time, I am not going to delineate any more of Justice Brown's opinions, but I would like to put into the RECORD some summaries of criticism of Justice Brown where she has been criticized for her attitude toward big Government, where she has been criticized for some rulings on civil rights, where she has been criticized for rulings on the first amendment, and where she has been criticized for rulings on criminal law.

I ask unanimous consent that these summaries be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Opposition--Brown's Criticisms of Big Government

JUSTICE BROWN'S CRITICS OVERLOOK A RECORD ON THE BENCH OF MODERATION

Much of the criticism of Justice Brown centers on speeches she made off the bench, but does not hold up next to her judicial opinions

Most notably, Justice Brown criticized the demise of the Lochner era and the rise of the New Deal in a speech before the Federalist Society. While her speech was indeed critical of Justice Holmes' dissent in Lochner, her judicial opinion on the subject in Santa Monica Beach, Ltd. v. Superior Court criticized Lochner in terms echoing the United States Supreme Court.

Justice Brown also has been attacked for speeches that criticize government as profligate in creating new rights and privileges and redistributing wealth. Again, the attack loses force when the focus turns to her judicial opinions, which are untainted by personal ideology. To give just a few examples, she has voted to employ an expansive interpretation of a state clean water statute so that plaintiffs could proceed with their case; upheld the right of a plaintiff to sue for exposure to toxic chemicals using the government's environmental regulations; upheld state regulations regarding overtime pay; and upheld a workers compensation board's stringent standard for ensuring the safety of workers.

In a recent column, law professor Jonathan Turley, a self-described ``pro-choice social liberal,'' points out that ``Brown's legal opinions show a willingness to vote against conservative views ..... when justice demands it'' and that Democrats should confirm her. The attempt to brand her as an extremist, derived from a combination of half-truths and the extremism of her critics, is demagoguery of the first order, and should not be permitted to obstruct the confirmation of a jurist who has been a credit to the bench.

Opposition--Brown's Rulings on Civil Rights

Justice Brown's rulings on racial bias have been distorted

In Peatros v. Bank of America, she dissented on grounds that a state law-based discrimination claim was preempted by the National Bank Act. The dissent in fact deferred to federal jurisdiction under the Supremacy Clause and notably pointed to Title VII as the appropriate civil rights provision to invoke in an area governed by federal law--a far cry from an ideologue who appreciates neither federal authority nor civil rights laws.

Another subject of attack was her dissent from Aguilar v. Avis Rent A Car System, a decision upholding an injunction against the use of racial slurs in the workplace. Unmentioned in the attack is that her dissent was based on well established First Amendment prohibitions on prior restraint and that she was joined by the court's late liberal icon, Justice Mosk.

In Hi-Voltage Wire Works v. City of San Jose, Justice Brown deferred to precedent in her court opinion invalidating a minority contracting program under Proposition 209. That issue was so straightforward that every judge who reviewed it from the trial court on up reached the same result--including every member of the state supreme court.

Justice Brown's opinion asserted that ``discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.''

Justice Brown further acknowledged that ``equal protection does not preclude race-conscious programs.''

The innuendo that this jurist is insensitive to racial bias disparages her firm commitment to civil rights

Consider Justice Brown's lone dissent in People v. McKay. There she argued for the exclusion of evidence of drug possession that was discovered after the defendant was arrested for riding his bicycle the wrong way on a residential street.

Justice Brown had this to say: ``In the spring of 1963, civil rights protests in Birmingham united this country in a new way. Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the nation. Without being constitutional scholars, we understood violence, coercion, and oppression. We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras.''

Justice Brown criticized what she called ``the disparate impact of stop-and-search procedures of the California Highway Patrol. The practice is so prevalent, it has a name: `Driving While Black.' ''

When you read such powerful statements, you have to wonder whether this judge, far from being too conservative, may not in fact be a bit too liberal for some of my friends who have opposed her.

Opposition--Brown's Rulings on the First Amendment

Justice Brown's First Amendment opinions have been distorted

When she is cognizant of First Amendment rights in a discrimination case, she receives no credit. Her critics simply turn to three other First Amendment cases to spin an attack that she gives broad protection to corporate speech while shortchanging individual free speech.

In one case, Justice Brown wrote a plurality opinion upholding an injunction against gang members congregating in a specified area in San Jose, a position supported by the Democratic mayor of the city at the time, the Los Angeles Times, and the San Francisco Examiner.

In another, Justice Mosk, the California Supreme Court's late, liberal icon, joined Justice Brown in a dissent that would have upheld an injunction against a disgruntled former employee sending disruptive mass emails.

In the third case, Kasky v. Nike, Justice Brown dissented on grounds that Nike's speech deserved more stringent protection than was provided by a California law. This third case provides the hook for her detractors' spin, but the baselessness of the critique is underscored by strong evidence that a majority of the United States Supreme Court would have taken her position had it considered the merits.

In dismissing the writ of certiorari, Justice Stevens, joined by Justices Ginsburg and Souter, noted in the same vein as Justice Brown that the case involved ``novel First Amendment questions.''

Justice Breyer, joined by Justice O'Connor, stated in a dissent to the dismissal of certiorari in Kasky that ``it is likely, if not highly probable'' that the law violated the First Amendment.

[Page: S6079]

Opposition--Brown's Rulings on Criminal Law

Justice Brown has demonstrated her respect of Fourth Amendment rights and has argued for reversing verdicts or sentences for capital defendants

In addition to the dissent in People v. McKay that I cited, she wrote the court's opinion in In re Brown reversing a verdict and death sentence in a case where the prosecutor deprived the defendant of a fair trial by failing to discover and disclose an arguably exculpatory blood test.

In In re Visciotti, she dissented from the majority opinion, arguing that a defendant's death sentence should be set aside on grounds of ineffective assistance of counsel.

Mr. SPECTER. I ask unanimous consent that quotations from certain of Justice Brown's supporters be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Quotes From Supporters--What Those Who Know Her Best Are Saying About Justice Brown

Letter from a bi-partisan group of 12 of Justice Brown's current and former judicial colleagues (including all of her former colleagues on the Court of Appeal, Third Appellate District and four current members of the California Supreme Court) to the Honorable Orrin G. Hatch, October 16, 2003:

``Much has been written about Justice Brown's humble beginnings, and the story of her rise to the California Supreme Court is truly compelling. But that alone would not be enough to gain our endorsement for a seat on the federal bench. We believe that Justice Brown is qualified because she is a superb judge. We who have worked with her on a daily basis know her to be extremely intelligent, keenly analytical, and very hard working. We know that she is a jurist who applies the law without favor, without bias, and with an even hand.''

Statement of former senator and governor Pete Wilson, for whom Justice Brown served between 1991 and 1994:

``She served as my legal affairs secretary for three years because a number of excellent lawyers in the state, whose judgment I trust, said, `You will not do better.' They were right. She was not only a legal scholar--so that I could rely upon her judgment as to what the law was--she was an excellent guide when I was trying to decide what the law ought to be . . . I would simply say to you that, by intellect and by character, by experience, by capability, Justice Brown deserves not only a vote, but deserves a seat on the District Court of Appeals, where I predict she will, if seated, be a brilliant addition.''

Letter from a bi-partisan group of 15 California law professors to the Honorable Orrin G. Hatch, October 15, 2003:

``We know Justice Brown to be a person of high intelligence, unquestioned integrity, and even-handedness. Since we are of differing political beliefs and perspectives, Democratic, Republican and Independent, we wish especially to emphasize what we believe is Justice Brown's strongest credential for appointment to this important seat on the D.C. Circuit: her open-minded and thorough appraisal of legal argumentation, even when her personal views may conflict with those arguments.''

Letter from 18 members of the California delegation in the House of Representatives to the Chairman and Ranking Member of this committee, April 14, 2005:

``Janice Rogers Brown is an outstanding jurist with more than eight years of experience on the California appellate bench. She is well-regarded by her colleagues and known to be a person of great intellect, integrity and dedication. Moreover, Justice Brown is a first-rate judge respected by many for her even-handed and unbiased application of the law.''

Letter from Ellis Horvitz, a Democrat and one of the deans of the appellate bar in California, to the Honorable Orrin G. Hatch, September 29, 2003:

``In my opinion, Justice Brown [possesses] those qualities an appellate justice should have. She is extremely intelligent, very conscientious and hard working, refreshingly articulate, and possessing great common sense and integrity. She is courteous and gracious to the litigants and counsel who appear before her.''

Undated Letter from Regis Lane, Director of Minorities in Law Enforcement, a coalition of ethnic minority law enforcement officers in California, to Chairman Orrin G. Hatch.

``We recommend the confirmation of Justice Brown based on her broad range of experience, personal integrity, good standing in the community and dedication to public service . . . In many conversations with Justice Brown, I have discovered that she is very passionate about the plight of racial minorities in America, based on her upbringing in the south. Justice Brown's views that all individuals who desire the American dream, regardless of their race or creed, can and should succeed in this country are consistent with MILE's mission to ensure brighter futures for disadvantaged youth of color.''

Mr. SPECTER. One of the cases which I studied in law school was the famous dissent by Justice Oliver Wendell Holmes, who argued for dissent and for freedom of speech, saying what I think is, if not the most famous quotation in Supreme Court history--that is pretty hard to categorize--certainly one of the most famous where he said that ``time has upset many fighting faiths.''

That is why we encourage independent thought. That is why we encourage dissent. There are many dissents which have become the law of the land. Dred Scott was overturned. Plessy v. Ferguson on segregation was overturned. Brown v. Mississippi established the rule of due process of law for State court criminal proceedings, and dissenting opinions of Brandeis and Holmes and Cardozo have become the law of the land.

So when one sees someone who might not conform exactly to the kind of thought or might be a little more colorful in phraseology, it is not necessarily something to be discouraged. If one takes a close reading as to what Justice Brown has had to say, she is worthy of confirmation by this Senate. As we analyze nominees for the Federal court, as we analyze nominees for any important position, we ought not to discourage individualism, independence, and free thought. The phrase that ``time has upset many fighting faiths,'' encouraging independence and free thought has been a great bulwark for the progress of this country.

I yield the floor, and in the absence of any other Senators seeking recognition, I suggest the absence of a quorum.

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Posted at 11:20pm on Jun. 7, 2005 </strong>June 6 Hardball

By AndrewHyman

A bunch of Senators appeared on Hardball recently, and here's a transcript. The parts that I found most interesting were when Senators Byrd and Nelson spoke. Here's Byrd rewriting history:

Now, what you have here is an attempt to pack the courts. FDR tried that in 1937. He failed, because the Senate filibustered and the people became informed as to what was going on.

The real story of how the Senate did not filibuster FDR's court-packing plan can be found here from the Supreme Court Historical Society. Senators in 1937 were afraid of putting themselves in "an embarrassing position if they sought to deny the people's representatives in Congress an opportunity to vote and thereby contrived the triumph of the will of a minority." Like Senator Byrd, Senator Feinstein has also been busily revising history, to insert filibusters where they never really happened.

Senator Ben Nelson also appeared on Hardball. Here's Senator Nelson elaborating on what the term "extraordinary circumstances" means to him:

Judicial activists, in my judgment, should be ineligible to serve on the bench, because they want to make the law, rather than apply it. In that case, I would consider somebody to be under extraordinary circumstances.

Senator Nelson has also said that he would vote against cloture when information about a nominee may be obtained by filibustering. There comes a time, however, when it must become apparent that the White House will not provide that information, and then it seems to me that the filibustering should stop; everyone is free to assume the worst about documents that cannot be obtained.

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Posted at 10:15pm on Jun. 7, 2005 Myers, Saad, Kavanaugh and Haynes on Hold

By AndrewHyman

The Hill reports that these four nominations will be put on hold for the next few weeks.

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Posted at 8:05am on Jun. 7, 2005 <em>Washington Post</em> on Justice Brown

By AndrewHyman

Today, the Washington Post has an op/ed urging rejection of Justice Brown for the DC Circuit. A cloture vote in the Senate is scheduled for noon. UPDATE: The vote was 65-32 for cloture.

The Post relies upon a single opinion by Justice Brown: a dissent in the The San Remo Hotel Case. In that case, the City of San Francisco imposed a $567,000 fee for a hotel to convert from residential to tourist use, and Justice Brown wrote that the fee was unconstitutionally excessive.

The case is still in litigation. Oral argument was held in the U.S. Supreme Court on March 28, 2005. The main issue in state court was whether $567,000 was such an excessive amount as to be an unconstitutional "taking" of private property without just compensation.

Surely the Post would agree that the City of San Francisco could not take a billion dollars in return for the permit, and therefore this case boils down to a question of degree. Justice Brown was not the only one who found this half-million dollar fee excessive. One of five dissenting SF Supervisors called the fee ââ‚Å“organized extortion,ââ‚¿ and the state Court of Appeal called the conversion fee ââ‚Å“ransom.ââ‚¿

Of course, the Post did not mention the fee, or mention that the Constitution sets an upper limit to such fees. Whether Justice Brown was wrong or right in this case, she was not the only dissenter in the case. Two other justices of the California Supreme Court said this:

[T]he majority prevents plaintiffs from demonstrating their entitlement to writ relief, prematurely analyzes plaintiffs' as-applied takings claims, and summarily disposes of plaintiffs' other claims without any analysis whatsoever....

This was a close case, it's still in litigation, and there are reasonable arguments on both sides.

UPDATE: Ed Whelan at Bench Memos also addresses the Post's editorial.

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Posted at 8:28pm on Jun. 6, 2005 Rush Limbaugh Has Some News

By AndrewHyman

I'm not quite sure where Rush Limbaugh gets all this stuff, but it sure is interesting:

Republicans are thinking about throwing up William James Haynes to test just where the seven Republicans on the gang of 14 stand on the filibuster deal that they cut three weeks ago. "Conservative Republican senators plan on pressing the nomination of Defense Department General Counsel William James Haynes." Now, Haynes is one of the nominees, and if you believe the Democrats that cut the deal, Haynes is one of the nominees not officially part of that Gang of 14 agreement. "However, several Republicans in the negotiating room including Lindsey Graham claimed that Haynes was one of the nominees, that all 14 agreed would be released for a vote by the full Senate. A GOP staffer in the leadership said, 'We want to hold Graham and Susan Collins and the rest of them to their word. One of the reasons we went along with this deal to the degree that we did was because they promised nominees like Haynes would get an up-and-down vote. They gave us their word. We assume their word to fellow Republicans is as good as their word to Democrats,'" but we'll see. This is a senior Republican staffer in the leadership of the Senate saying this. So, you know, there's a lot of potential fireworks to come down the pike this week.

As I mentioned previously, if the Dems say that any of the nominees aren't covered by the agreement, then those nominees could be withdrawn and nominated for different judgeships, so they would definitely fall within the terms of the agreement (e.g. nominate Myers for the DC Circuit). Alternatively, if the Dems say that some nominees aren't covered by the agreement, then 51 Senators would be free to cut off filibusters just for those particular nominees (call this a mini-nuclear option). Another possibility: let the nominations of Saad, Myers, and the rest expire at the end of this one-year session of Congress, at which time they would have to be nominated again, thereby coming within the terms of the agreement (see page 946 of Riddick which says that the ââ‚Å“president submits nominees anew each sessionââ‚¿).

UPDATE: Thanks to two of the commenters for pointing out that Rush got much of this stuff from an article in the American Spectator.

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Posted at 6:45pm on Jun. 6, 2005 Say Hello to a New Blog

By AndrewHyman

The new "Supreme Court Nomination Blog" is up and running, and they are now linked over at the right-hand-side of the confirmthem page. Here's how they describe themselves:

We intend this blog to serve as a clearinghouse for information on the process of nominating and confirming a Supreme Court Justice. Some of our posts will simply attempt to keep up with all of the relevant press coverage and interest group advocacy. But we will also add our own coverage and analysis.

Check it out. Hat tip to Bench Memos.

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Posted at 4:28pm on Jun. 6, 2005 <em>Bench Memos</em> on Michael McConnell

By AndrewHyman

Notre Dame law professor Richard W. Garnett has a post at Bench Memos today, titled ââ‚Å“Michael McConnell and the Religion Clause Mainstream.ââ‚¿ Garnett argues that the Supreme Courtââ‚â„¢s recent opinion in Cutter v. Wilkinson vindicates McConnellââ‚â„¢s views, and demonstrates that he is in the ââ‚Å“mainstream.ââ‚¿ I disagree.

Cutter was an Establishment Clause case, rather than a Free Exercise Clause case. Itââ‚â„¢s the Free Exercise Clause where McConnell has views that are most unorthodox. As I discussed here, McConnell testified at his confirmation hearing that the Free Exercise Clause should be used to legalize polygamy, and he has also written that the Free Exercise Clause should be used to protect a limited right to abortion.

Judge McConnellââ‚â„¢s view is that a statute that does not target or discriminate against religion, but that instead treats everyone equally, can nevertheless run afoul of the Free Exercise Clause. Thus, Professor Marci Hamilton was correct when she wrote that, "Judge Michael McConnell is ââ‚Ëœhighly critical of current Free Exercise doctrine.'" Professor Garnett is reading too much into the recent Cutter decision, and is letting Judge McConnell off too easily.

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Posted at 12:18pm on Jun. 6, 2005 Judge Owen and Justice Brown

By AndrewHyman

Priscilla Owen is now a federal judge. "This has been a long road," Judge Owen said today after her swearing-in ceremony at the Texas Supreme Court chamber, where she has been a justice for more than 10 years.

Debate in the Senate on the Brown nomination will begin at 2 PM today (Monday). The cloture vote on Justice Brown will be at noon tomorrow (Tuesday).

For more info about the Brown nomination, How Appealing has a good set of links. Nearly all of the opposition to Justice Brown is based upon her extracurricular speeches. Clearly, she has passionate views about many subjects. However, one of her most recent speeches gets across the point that --- whatever her personal views may be --- her actual judicial opinions show great restraint. Read about some of Justice Brown's controversial but perfectly reasonable judicial opinions here (People v. Floyd; People v. McKay; Aguilar v. Avis; Hi-Voltage v. San Jose), and here (Stevenson v. Superior Court), and here (San Remo Hotel v. San Francisco).

Justice Brown was elected to California's highest court with 76 percent of the vote. In 2002, she wrote more majority opinions than anyone else on that court. The American Bar Association has deemed her "qualified" to be a U.S. Court of Appeals judge.

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Posted at 1:02pm on Jun. 5, 2005 Alito, Garza, Jones, and Cornyn for Supreme Court

By AndrewHyman

Quin Hillyer previously posted his opinion here at confirmthem that President Bush's two best choices for Supreme Court would be Samuel Alito and Emilio Garza. After doing a bit of research, I agree with Quin, except that I'd also want to add Edith Jones and John Cornyn.

Brief biographical sketches of sitting federal judges are available from the Federal Judicial Center (also linked under "organizations" at the right side of the confirmthem home page). So, the Federal Judicial Center provides some quick background about Alito, Garza, and Jones.

Last year, USA Today gave brief synopses of Garza, Alito, and several other possible nominees (including Miguel Estrada who I also think would be great). However, USA Today did not mention Judge Jones, who was considered for the Supreme Court seats that eventually went to David Souter and Clarence Thomas (she is a former general counsel for the Texas Republican Party, and here's a writing sample). Nor did USA Today mention Senator Cornyn, who is a former Justice of the Texas Supreme Court. It appears that Alito, Garza, Jones, and Cornyn are all very solid originalists who would not legislate from the bench, and who would be likely to reverse previous legislation from the bench.

And, if President Bush is willing to nominate Miguel Estrada, and Mr. Estrada is willing to be nominated, then I think that would be excellent. Keep in mind that other nominees have joined SCOTUS without having first served as judges --- for example, William Rehnquist, Louis Brandeis, Lewis Powell, Earl Warren, Byron White, Robert Jackson, William Douglas, Felix Frankfurter, and Hugo Black.

Regarding Judge McConnell, a recent article in Legal Times notes that, "as scrutiny of his record intensifies, it's hard for many to decide exactly what McConnell is: conservative, liberal, or a perplexing blend of both." Further resources regarding Judge McConnell are available here, along with an explanation why I believe he would not be among the best choices for Supreme Court.

Some Further Resources About Jones, Garza, Alito, and Cornyn:

* Here are the SCtN profiles for Jones, Garza, Alito, and Cornyn.

* Both Cornyn and Jones were involved in a controversial death penalty case in which the defendant's attorney fell asleep during trial, as described in this Houston Law Review note.

* A long time ago, in 1989, Judge Jones wrote a dissent in a sexual harassment case that was somewhat controversial. Here's the case, titled "Waltman v. International Paper." Interestingly, the majority opinion was written by Homer Thornberry, who was to have been LBJ's last nominee to the Supreme Court.

* Here's a 2001 interview with Judge Jones in the Houston Lawyer.

* Here's a July 3, 2005 profile of Judge Emilio Garza, from a San Antonio newspaper.

* The controversial decisions by Judge Jones in the sex harassment case and the sleeping attorney case are explained and discussed here.

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Posted at 5:47pm on Jun. 4, 2005 It Sounds Like a Demotion

By AndrewHyman

Confirmthem fans and groupies will be pleased to know that Justice Priscilla Richman Owen will be sworn in as Judge Owen this coming Monday, in Austin. Let's hope that the Senate agrees on Monday to "demote" Janice Rogers Brown too.

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Posted at 5:43pm on Jun. 4, 2005 "For high court, Bush seeks 'a certain temperament'"

By feddie

The Baltimore Sun has an interesting article on this topic. Here are the excerpts that caught my attention:

More so than his predecessor, Bill Clinton, or his father, George Bush, the current president has looked to the lifetime appointments he has made to the federal judiciary as a way to have a lasting ideological effect on the nation's laws, said David M. O'Brien, a political science professor at the University of Virginia and author of the book Storm Center: The Supreme Court in American Politics. Nowhere would the effect be more visible than on the Supreme Court.

"I see no reason to expect or predict that he is going to compromise, and if he did compromise, he would get a lot of flak from his core constituents," O'Brien said. "He's going to go to the mats."

. . . .

Much of the intrigue surrounds whether Bush would elevate a current member of the court - Antonin Scalia or Clarence Thomas - to the chief's post, setting the stage for two confirmation battles against the backdrop of the Senate's recent standoff over judicial nominees.

Douglas W. Kmiec, a constitutional law expert at Pepperdine University who was a top Justice Department official under President Ronald Reagan and the first President Bush, said the simmering Senate feud over federal judges has prompted some conservatives to push for "Scalia and Thomas, and no one else," for the chief's post.

"Certainly, if you had a scrappy, intellectually able Antonin Scalia, part of the calculus would be: If he can't survive [the confirmation process], then no one can," Kmiec said.

. . . .

White House staff and advisers have completed much of that legwork, and an unofficial - and unwritten - list of the most mentioned candidates for an opening on the court has been much discussed for several years.

It includes two judges from the 4th U.S. Circuit Court of Appeals, which hears cases from Maryland - J. Harvie Wilkinson III and J. Michael Luttig, who has sterling political credentials and has long been a darling of conservative legal circles. Luttig delivered one of the eulogies at the funeral of former Chief Justice Warren Burger in 1995, along with Rehnquist and Justice Sandra Day O'Connor.

The list includes former University of Chicago law professor Michael W. McConnell, now a judge on the Denver-based 10th U.S. Circuit Court of Appeals, and Emilio M. Garza, a judge on the New Orleans-based 5th U.S. Circuit Court of Appeals, who would offer an opportunity for Bush to appoint the first Hispanic judge to the Supreme Court. Attorney General Alberto R. Gonzales also has been a steady Supreme Court contender.

In recent weeks, Kmiec said, contenders Samuel A. Alito Jr., a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia who is nicknamed "Scalito" because of his similar philosophy to Justice Scalia, and John Roberts Jr., named less than two years ago to the D.C. Circuit Court of Appeals, have gained strength as candidates. That is in large part because they are seen as having the intellectual capability and temperament to serve on the court without having lengthy records of academic writing or judicial histories that could supply ammunition for critics.

(cross-posted at Southern Appeal)

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Posted at 5:27pm on Jun. 4, 2005 "Frist, His Authority Questioned, Says Heââ‚â„¢ll Prevail in the Long Run"

By AndrewHyman

The New York Times has an article tomorrow (Sunday) about Senator Frist, and here's a chunk of it:

"The short-term evaluations, I believe, will prove to be shortsighted and wrong after we get judge after judge after judge after judge through, plus at least one Supreme Court nominee and an energy bill," Dr. Frist said after a lecture at Harvard, where he received his own medical education. "And we will get Bolton."

The majority leader said the judicial impasse would have never been broken had he not forced the issue by threatening to prohibit filibusters and engaged in an extended buildup to the vote, creating pressure for a compromise.

"Without that sort of leadership, there is no deal to be cut, there are no brokers to deal, there is no deal to be brokered," he said.

Senator Mike DeWine of Ohio, who was one of the seven Republicans who worked with seven Democrats to fashion the compromise, agreed.

The rest of the article is interesting too. Compliments to the Times (yes, I said that).

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Posted at 12:16am on Jun. 4, 2005 Senator Feinstein versus the Congressional Research Service

By AndrewHyman

California Senator Dianne Feinstein claims that a Supreme Court nomination was defeated by filibuster way back in 1881, but the Congressional Research Service (CRS) says the opposite. The following statement is at Senator Feinstein's website:

In 1881, Republicans held a majority of seats in the Senate but were unable to end a filibuster to preclude a floor vote on President Rutherford B. Hayes's nomination of Senator Stanley Matthews to the Supreme Court. Matthews was renominated by incoming President James Garfield, and after a bitter debate in the Senate, was confirmed by a vote of 24 to 23. This has been described as the first recorded instance in which the filibuster was clearly and unambiguously deployed to defeat a judicial nomination.

But, here's what the CRS says:

According to one historical account, the nomination did not enjoy majority support in the Senate Judiciary Committee and was not reported out by the Committee or considered by the full Senate before the end of the Congress.

The thing I can't figure is how Matthews could have been filibustered if he didn't even make it out of committee. Senator Cornyn has confirmed that Matthews never got out of committee during the Hayes administration.

Not only is Senator Feinstein's claim of a Matthews filibuster unfounded, but in fact his ultimate confirmation vote of 24 to 23 plainly shows that the Senate has never before accepted a supermajority threshold for even the most controversial nominees. I guess if history's not on your side, you just make it up, or cite someone else who has.

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Posted at 10:25pm on Jun. 3, 2005 Democrats Planning to Filibuster Judges Again

By AndrewHyman

On May 23, a group of Senators signed ââ‚Å“The Dealââ‚¿ regarding judicial nominations. But now the Democrats are trying to use technicalities to minimize their commitments.

The Dems are now saying that they will filibuster various appellate court nominations, regardless of whether they think ââ‚Å“extraordinary circumstancesââ‚¿ exist, and regardless of statements like this one by Senator Landrieu on May 23:

The senators made a good-faith pledge that the filibuster should only be employed under extraordinary circumstances, and that each senator would use his or her discretion and judgment to determine whether such circumstances exist.

Now the Democrats are apparently insisting that The Deal allows them to filibuster the following nine nominees regardless of whether they think ââ‚Å“extraordinary circumstancesââ‚¿ exist:

Saad, Henry --- Sixth Circuit

Myers, William --- Ninth Circuit

Kavanaugh, Brett --- District of Columbia Circuit

Haynes, William --- Fourth Circuit

Boyle, Terrence --- Fourth Circuit

Griffin, Richard --- Sixth Circuit

McKeague, David --- Sixth Circuit

Neilson, Susan --- Sixth Circuit

Griffith, Thomas --- District of Columbia Circuit

The Democrats say that they will filibuster the first four on this list. The Washington Post reported today that ââ‚Å“Democrats said they believe they have a united caucus -- excepting Sen. Ben Nelson (Neb.) -- to blockââ‚¿ the first four on the list.

The GOP should not hesitate to be just as hyper-technical as the Democrats. If any of the nine nominees listed above is filibustered, then that nominee can be withdrawn and nominated for a different judgeship, thereby falling within the ââ‚Å“extraordinary circumstancesââ‚¿ language that the Democrats now seek to avoid. For example, if Myers is filibustered, then he could simply be withdrawn and nominated for the DC Circuit instead, and he could then only be filibustered under ââ‚Å“extraordinary circumstances" (provided that his nomination is considered by the Senate "individually" rather than as part of a group of nominees).

It's worth mentioning that Senator Nelson --- just like Senator Landrieu --- has said that these listed nominees would only be filibustered in "extraordinary circumstances." For example, Nelson said this:

If he [Judge Saad] were to come out [of committee] then he would, in my opinion, get an up-or-down vote, or some of my colleagues may decide that thatââ‚â„¢s exceptional circumstances, so thatââ‚â„¢s sort of where we are. I voted against cloture on Judge Saad, which is the only time I voted against cloture for the filibuster, but the reason I did it was I couldnââ‚â„¢t go to an up-or-down vote because I couldnââ‚â„¢t get the file; it was a file that had some information that I wanted to get.

Senator DeWine also said on May 23 that all nine of these listed nominees could only be filibustered in extraordinary circumstances:

Senators have agreed that they will not filibuster except in extraordinary circumstances.

Nonetheless, the Dems seem determined to filibuster various judicial nominations even when they don't believe extraordinary circumstances exist.

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Posted at 6:50am on Jun. 3, 2005 Bush Poised to Nominate Dozens For Judgeships, GOP Insiders Say

By feddie

WaPo has this report. Here's a taste:

The White House is preparing to send a raft of new judicial nominations to the Senate in the next few weeks, according to Republican strategists inside and outside the administration -- a move that could challenge the durability of last week's bipartisan filibuster deal and reignite the political warfare it was intended to halt.

The Bush administration has been vetting candidates for 30 more federal district and appeals court vacancies that have been left open for months while the Senate battled over previous nominations stalled by Democrats. Now that Democrats have agreed not to filibuster any new candidates except in "extraordinary circumstances," Republicans are eager to test the proposition.

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Posted at 8:08pm on Jun. 2, 2005 Graham and Buchanan on Judicial Nominations

By AndrewHyman

Senator Lindsey Graham of South Carolina said a few words recently about judicial nominations:

"What we need to have is a system where people who come forward are not filibustered based on ideology but voted on based on qualifications," he said. "We have got the hope of going back to the old way of doing business that if you didn't like them, you voted against them, but everybody got a voteâ₦.If I'm wrong, and it all breaks down, I am willing, ready and able to break the rules" on filibusters, he said, referring to the so-called nuclear option.

Meanwhile, Pat Buchanan painted an interesting (and accurate) analogy:

The filibuster-veto is the moral equivalent of letting a mob tie a man to a whipping post and lash him almost to death, without a trial, while denying the majority the right to set him free. Under the filibuster-veto, at least a dozen conservative judges have seen their good names smeared by Senate demagogues, as in a show trial, but been denied a vote by the full Senate on the truth or falsity of the charges against them.

Maybe I'm a bit daft, because this sentence in an Associated Press story from the Washington Post makes no sense to me:

So while another of President Bush's judicial nominees, Texas Supreme Court Justice Priscilla Owen, is likely to be the flashpoint for a showdown over whether Democrats should be able to stop appointments to the nation's highest courts, Brown is being debated just as much on the Senate floor this week.

I thought the Owen business was all finished. Maybe it's like that movie Groundhog Day.

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Posted at 2:43am on Jun. 2, 2005 Early Thursday Morning Filibuster News

By AndrewHyman

How Appealing lists the latest filibuster news and opinion. Plus the Sioux City Journal reports that conservative leaders in Iowa have written a follwup letter regarding judicial filibusters to potential presidential candidates:

"As stated in our earlier correspondence, we are still asking for an up or down vote on all qualified nominees," the letter said. "Any compromise that stops short of this goal is unacceptable."

It's just rude for the Senate not to give a straight answer to nominees who have made it through committee to the Senate floor. A filibustered piece of legislation doesn't care about the interminable controversy, but a filibustered nominee certainly does. There couldn't be a better way to discourage qualified people from public service.

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Posted at 10:29pm on Jun. 1, 2005 A Eulogy

By AndrewHyman

A California judge named Robert Puglia died recently. One of his friends and students was California Supreme Court Justice Janice Rogers Brown, who delivered a eulogy. Here's an excerpt that I found particularly meaningful:

Justice Puglia deserves a place in the pantheon of great American judges. He completely understood the role and relished it. He exhibited the classical judicial virtues: impartiality, prudence, practical wisdom, persuasiveness, and candor. He demonstrated complete mastery of his craft. He had a keen awareness of the ebb and flow of history, and of the need for consistent jurisprudence, and, above all, self-restraint. It may sound odd to describe a judge as both passionate and restrained, but it is precisely this apparent paradox --- passionate devotion to the rule of law and humility in the judicial role --- that allows freedom to prevail in a democratic republic.

The whole eulogy is available in a Weekly Standard article by Scott Johnson. More about Judge Brown's federal court nomination is here.

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Posted at 9:27pm on Jun. 1, 2005 Senator Talent on Filibusters

By AndrewHyman

Senator Jim Talent of Missouri recently joined a couple other GOP Senators (Santorum and Ensign) for an interview on the Hugh Hewitt Show. Here's part of the interview:

Hugh Hewitt: Let's start over here with the question about the deal that we're talking about. If we come back after the break, Jim Talent, and the Democrats filibuster anyone not named Saad or Myers, do you have the votes to go the nuclear option?

Jim Talent: Yea, I think, I think we probably would, and I think actually this compromise makes that more likely, because I think it will be the last try, if you will, that some of these folks wanted before voting for the Constitutional option. So, I think it's more likely that we'll have the votesâ₦. Hugh, it's worth repeating, that until two years ago, the Senate had never filibustered a judicial nomination that had majority support on the floor of the Senate. Never.

Hugh Hewitt: Right.

Jim Talent: And now, we've seen ten, and six others threatened, and then people wonder why you had to do what we did. I mean it's, apart from the fact it's tremendously unfair to judges of our philosophical persuasion, the Senate...it's going to shut down the courts, because if the Democrats think that this is a standard they'll apply when there's a Republican president, and it won't be applied the other way, when there's a Democratic president, they're just very naive.

The ever-charming Senator Reid has a different view.

Regarding Saad and Myers, if they are eventually nominated for judgeships in different circuits, then the "extraordinary circumstances" language would clearly protect them from filibusters, as I mentioned previously. I'm especially curious to see whether the Judiciary Committee approves Judge Saad for his current nomination, given the vague allegations by Senator Reid about incriminating evidence in Saad's FBI file. Fox News reports this about Myers:

GOP sources in the Senate confirm they plan to call for a vote on Myers sometime this month. Democrats are expected to filibuster, and key senators in that compromise deal confirm that a filibuster of Myers will not trigger the "nuclear" or "constitutional" option, meaning the nominee may not get an up-or-down vote.

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Posted at 12:26pm on Jun. 1, 2005 Judge McConnell Resources

By AndrewHyman

Judge Michael McConnell is a leading candidate for SCOTUS. For more info about him, the place to start would be his circuit court nomination hearing. Excerpts regarding polygamy and abortion are here. The complete hearing report is available online as both text and pdf. Just click here and scroll down to "Confirmation Hearings On Federal Appointments" (it's the 22nd item listed, and that item also covers the Estrada hearing).

McConnell's appeals court nomination was strongly supported by liberal academics such as Lawrence Tribe and Cass Sunstein, which is enough to at least give some pause.

Also, Judge McConnell seems inclined toward an activist role for the courts in regulating social policy, such as marriage laws. It appears from the hearing report that he would strike down laws against polygamy, for example, as a violation of First Amendment religious freedom. This would overturn Supreme Court precedent going back to 1878.

Regarding Roe v. Wade, he said at his hearing that it is "as settled as any issue can be in constitutional law," and that the right to an abortion reflects "the consensus of the American people." But characterizing Roe as being as settled as Marbury v. Madison or Brown v. Board of Education seems like quite a stretch.

UPDATE: For those seeking further info about Judge McConnell, here are a few additional resources:

* Andy Schlafly authored a June 10, 2005 article titled "McConnell: A New Type of Souter." Scott Johnson rebutted Schlafly on July 8, 2005 at Power Line. I responded to Power Line here.

* Byron York wrote an article in 2002 about his circuit court confirmation hearing.

* Judge McConnell signed this pro-life petition in 1995.

* Edward Lazarus urged fellow liberals in 2002 to not block McConnell's circuit court nomination. Lazarus says Roe was wrongly decided but can rest on other constitutional grounds.

* McConnell wrote this law review article in 1992 about religion and the First Amendment (suggesting that the Free Exercise Clause gives rise to a limited right to abortion). The article is titled, "Religious Freedom at a Crossroads," 59 U. Chi. L. Rev. 115 (1992).

* During his circuit court confirmation hearing, McConnell testified that this old Supreme Court case from 1878 about polygamy wrongly allowed Congress to violate the First Amendment's Free Exercise Clause. McConnell has written that the polygamist in this Reynolds case, ââ‚Å“asked only that the government leave him and his wives alone." (This quote is from an article he wrote in a book by S. Olyan titled, "Sexual Orientation & Human Rights in American Religious Discourse.")

* This 1993 Supreme Court case referred to the old Reynolds polygamy case that McConnell criticized at his confirmation hearing. Justice Kennedy wrote for the Court that Reynolds involved "a social harm [that] may have been a legitimate concern of government for reasons quite apart from discrimination."

* Brian Fletcher, at the Supreme Court Nomination Blog, has put together a very useful profile of Judge McConnell, accompanied by very intelligent comments from the public.

* Here's an essay that McConnell wrote on December 13, 2000 for Slate, arguing that the Supreme Court's decision in Bush v. Gore was a "failed compromise" and was "less than compelling" and was "surprising" and showed a "lack of political judgment." McConnell wrote that the U.S. Supreme Court should have "remanded to the Florida court, as Justice Breyer suggested." McConnell argued that it would have been "reassuring" if more recounting had been done in the Democratic counties that were hand-picked by Al Gore in order to scrape up more Democratic votes, in conjunction with commencent of partial recounting in other counties.

* A collection of Judge McConnell's writings in the Wall Street Journal is here.

* Then-Professor McConnell had an online debate at Slate with Professor Ronald Dworkin, in 1997, regarding the question of whether anti-suicide laws violate the Due Process Clause. McConnell took this position:

The purpose of the due-process clause is not to allow judges to decide controversial issues for themselves, but to require the states to respect rights that, through tradition and experience, the nation has come to recognize as fundamental.

Although this position would certainly constrain judges more than Professor Dworkin's position, I fail to see how McConnell's position is justified by the text of the Fifth and Fourteenth Amendments, or by the intentions of those who wrote and ratified those amendments. I wrote in detail about this subject here.

* Here's an informative article from Legal Times dated June 6, 2005.

* Finally, here's a book review that McConnell wrote, critiquing Justice Stephen Breyer's book Active Liberty.

All of that should keep you busy for awhile. :-)

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Posted at 10:22am on Jun. 1, 2005 Rehnquist will step down in the next four weeks

By feddie

I don't think this news will come as a surprise to anyone, but I just received a phone call from an extremely reliable source who tells me that it's a done deal.

The fedster's prediction: President Bush will tap Judge Michael W. McConnell of the U.S. Court of Appeals for the 10th Circuit to fill the Rehnquist vacancy and to be the next Chief.

(cross-posted at Southern Appeal)

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Posted at 9:32pm on May 31, 2005 The Big Battle To Come

By Lorie Byrd

Yesterday Ankle Biting Pundits posted a link to this AP story that says Chief Justice Rehnquist will likely retire by the end of June, but that it could occur anytime after Memorial Day. I don't suppose that is exactly big news, but the story also says that President Bush has winnowed his list of potential Supreme Court nominees down to a handful, while some believe a specific person could already have been chosen.

John McGinnis, a law professor at Northwestern University and former deputy assistant attorney general in the Justice Department's office of legal counsel, said he thinks Bush already might have made up his mind.

"This White House ââ‚” I congratulate it on its ability to be secret," McGinnis said. "It's entirely possible that Rehnquist has already communicated his intention to step down and the White House has a plan absolutely set."

I would personally be shocked if the White House did not already have a plan absolutely set considering what has transpired over the past four years. This promises to be the mother of all judicial confirmation battles and this excerpt from the AP story quoted by ABP filled me with dread thinking about the upcoming media coverage we will have to endure.

Liberals hope Bush will fill his first vacancy with a centrist, a consensus candidate, instead of one who would please right-wing Republicans who were instrumental in the president's re-election. But they acknowledge that may be wishful thinking.

It does not matter who George Bush nominates -- that person will be branded a right-wing extremist. I am sure he knows that, so hopefully he will nominate the person he thinks will best serve the country. I have little doubt that will be the case. Hopefully, the Senate Republicans will also support that person. I am less sure about that.

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Posted at 1:18pm on May 31, 2005 President Comments on "The Deal"

By AndrewHyman

President Bush commented on Tuesday about the deal over judicial confirmations:

Q Thank you, sir. Can you talk a little bit about the process you're using to pick your next Supreme Court justice? And is that going to be affected at all by the agreement that was reached between the 14 Republicans and Democrats on judicial nominations?

THE PRESIDENT: Well, that depends on whether or not the Senate will give my person an up or down vote. Here's my process. One, I'm obviously going to spend a lot of time reviewing the records of a variety of people and looking at their opinions and their character, and will consult with members of the United States Senate at the appropriate time.

I know there's been a lot of talk about consultation between the White House and the Senate, and we do consult -- obviously, we consult on district judges -- and that we listen to their opinions on appellate judges -- "their" opinions being the opinions from the home state senators, as well as others.

I look forward to talking to members of the Senate about the Supreme Court process to get their opinions, as well, and will do so -- and will do so. But, obviously, it's -- I told the American people I would find people of a certain temperament that would serve on the bench, and I intend to do that, but we will consult with the Senate.

Now, in terms of whether that agreement means that a senator [sic] is going to get an up or down vote, I guess it was vague enough for people to interpret the agreement the way they want to interpret it. I'll put a best face on it, and that is that since they're moving forward with Judge Owen, for example, and others, that "extraordinary circumstances" means just that -- really extraordinary. I don't know what that means. (Laughter.) I guess we're about to find out when it comes to other appellate judges. (Laughter.)

But I was pleased to see Priscilla Owen get an up or down vote, and she passed quite comfortably. She's a very good judge. And then, of course, Pryor and Judge Brown will be coming up pretty soon, I hope, and I would hope they would get confirmed, as well. They're good judges.

Regarding Judge Brown, I think the material at Senator Reid's web site is revealing about the opposition to her appointment. Senator Reid refers to three of Judge Brown's speeches, but does not cite or criticize any legal opinion that she wrote. It shouldn't matter that a judge makes some thought-provoking speeches, as long as the judge's actual legal opinions comport with the intended meaning of the law.

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Posted at 11:13pm on May 30, 2005 Justice Brown Will Get Up-Down Vote Next Week

By AndrewHyman

How Appealing provides links to info about California Supreme Court Justice Janice Rogers Brown. After the vote on Judge Brown, Judge Pryor will be up next. Dr. Steven Taylor wrote an interesting op/ed about Pryor today.

UPDATE: How Appealing has a Tuesday morning summary (with links) of filibuster news and opinion.

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Posted at 2:51pm on May 30, 2005 Nihilist in Golf Pants

By AndrewHyman

The blogger who calls himself Sisyphus, at the blog "Nihilist in Golf Pants," has a penchant for lists, including the "Top 11 Things the Republicans Get in Exchange for Surrendering on Judges" (beware profanity).

Meanwhile, on a somewhat more serious note, Senator Byrd hopes that the recent agreement on judges will help to reduce animosities, which of course would be a good thing. To get his point across, Byrd retells "The Pardoner's Tale" by Geoffrey Chaucer. As Democratic leaders plot further filibusters, they ought to keep that old tale in mind.

And, Confirmthem wishes everyone a safe and enjoyable Memorial Day.

UPDATE: Power Line has also noticed Byrd's reference to Chaucer. Unlike Power Line, I think it's an appropriate reference. If the Dems break tradition by grabbing for the nomination power, and Repubs break tradition by grabbing it back, then everyone ends up losing, as in the tale.

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Posted at 11:32am on May 30, 2005 McCain Ready to Go Nuclear?

By DanCT

Can we count Senator McCain as a "yes" vote on the Byrd option in the future? I wouldn't count him out. Sean Hannity had an interesting exchange with the Senator on Hannity & Colmes last week:

HANNITY: If there's a nominee like a Miguel Estrada, if there is a nominee like a Robert Bork or a Scalia or a Thomas, and the Democrats say that's an extraordinary circumstance, will you then join with Bill Frist and go forward with that option, because you feel that they will have broken the agreement?

MCCAIN: I will ââ‚” I can't name those names because I never examined any of them that carefully although Estrada clearly was qualified. But if we make a judgment that these nominees are extraordinarily unqualified, we'll agree with them. But if they're not, then we will ââ‚” we will go ahead and go forward.

McCain defines "extraordinary" in terms of qualifications rather than ideology. If the Democrats filibuster for ideological reasons, then McCain is prepared to "go forward" with the Byrd option -- and with a Miguel Estrada-type nomination in particular.

Hannity pressed him further on the deal, which looks absurd in the eyes of many conservatives:

HANNITY: But if the Democrats ââ‚” if this is the first time they did it, didn't they get a reward for this? And what guarantee is there they won't do it in the future?

MCCAIN: If they do it in the future, the agreement we had will be null and void. We've made an agreement that they will only filibuster under, quote, "extraordinary circumstances."

HANNITY: Does that mean that a conservative is appointed? Is that "extraordinary"?

MCCAIN: No, it does not. That will be our judgment, not ââ‚” as well as theirs.

McCain echos the interpretation we heard from Graham and DeWine (and Whelan), viz. that if the Democrats filibuster in circumstances that the GOPers do not agree is "extraordinary", then the deal is off. McCain then almost tells us what will happen with the deal:

Look, this was based on trust. That's the way the Senate works. We have to work that way. And I'm confident ââ‚” listen, I can't tell you. A number of my colleagues came up to me today and say, "Thank you. We need to now go about the business of the Senate."

Multiple choice. How did McCain intend to finish the sentence?

A. "I'm confident [that there will be no more filibusters]"?

B. "I'm confident [that if there are filibusters, Frist will have the votes for the Byrd option]"?

C. "I'm confident [that the President will send us 'moderates' whom the Democrats won't want to filibuster]"?

D. "I'm confident [that the 7 Republicans will nod and say 'yes' when the Democrats say 'extraordinary']"?

E. "I'm confident [that after we agreed to torpedo Myers, Saad, Haynes, and Kavanaugh, the Democrats won't filibuster very many more nominees]"?

A little speculation...I don't think there's any question that "A" is what he meant to say. Why would he then pull back? Because such a statement would arose the fury of the left. He wants the fury to be disspated into a series of small brush fires that flame briefly as each nominee is voted on in series. Ambiguity and muddleness is key. One of the defining characteristics of moderates is that they like to avoid conflict by refusing to make clear decisions, by compromising, and by postponing outbreaks of discord. If no one is certain what the deal really means, the fury on both the right and left will defuse (temporarily). The fury has been notably stronger in the right so far, and McCain is trying to deflect that fury -- but not so much as to arouse it strongly in the left! This is his game, and he is good at it (even though he blundered in the Chris Matthews interview a month or so ago when he said he'd vote against the Byrd option).

At that particular point in the interview, he was able to hold back, but at other points he just couldn't:

...now you watch. We're going to confirm these judges. There's not going to be a filibuster of a Supreme Court judge.

It sounds good, Mr. McCain. But how can we have any confidence?

He later elaborates (slightly) on his view:

HANNITY: But Rehnquist, Scalia, Thomas, those are all qualified people who should not be filibustered? People like them.

MCCAIN: I don't think these seven ââ‚” remember, I didn't make the agreement with 45 Republicans ââ‚” Democrats. We made it with seven Democrats. I'm confident that these seven Democrats would ââ‚” would not filibuster those individuals.

This is interesting because those three have already been defined by many on the left as "extreme", and the other 38 Democrats seem to be on board. McCain, though, seems to think these 7 Democrats do not think it is right to filibuster for ideological reasons and were looking for a way to break with their leadership to bring a measure of sanity back to the confirmation process. The far left has made tremendous progress in hijacking the process in recent years, from first establishing the primacy of ideology as a consideration for confirming or rejecting Supreme Court nominations (Bork, Thomas), then to establishing the primacy of ideology for Circuit Court nominations, then by asserting a minority's "right" to reject a nominee for ideological reasons. McCain apparently believes the 7 Democrats agree that the minority has pushed it a tad too far and are looking for a way to move forward with the confirmation votes.

HANNITY: The Democrats for the first time in history did this, and people feel you emboldened them by this deal. What do you say to them?

MCCAIN: Well, first of all, they did abuse the process badly, because they blocked the nominees that the president had for judgeships. We've now got an agreement where they are moving forward. You watch what we do.

We certainly will be watching, Senator, and we expect you to stand by your words to "go forward" with the Byrd option if a candidate like Estrada is nominated. This deal sounds terrible because it establishes the filibustering of nominees as legitimate and it advocates an extra-constitutional injecting of Senate politics into the nominations phase rather than containing such poison to the confirmation phase. I'm skeptical...

MCCAIN: "[O.K., Dan]... watch what happens here in the next few months before [you] make a judgment."

DAN: "Thank-you, Senator McCain. I'll be watching, and I hope you are right."

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Posted at 2:56am on May 30, 2005 Some Background About Brett Kavanaugh

By AndrewHyman

Immediately after "The Deal" was announced regarding judicial nominations, Senate Minority Leader Reid persuaded most of the Democratic signatories to commit to a filibuster against Brett Kavanaugh, who is a nominee for the DC Circuit. Since this nomination may become a major contest, I thought I'd provide a little background information about Kavanaugh.

His resume is available from the Department of Justice here. The Committee for Justice has some info about Kavanaugh here. Senator Hatch's introductory remarks at his Senate hearing are here.

People For the American Way (PFAW) says there are three main problems with Kavanaugh:

1. "Strong Views or Strong Partisanship?"

While working at the Office of Independent Counsel, Kavanaugh advocated for access to certain records of the President of the United States. In his role in the Bush administration, however, Kavanaugh has worked diligently to keep certain presidential actions and records confidential. PFAW seems to have some problem with the concept that an attorney can do different kinds of work for different clients.

2. "The Extremist Who Picked the Extremists"

As Associate Counsel to the President from 2001-2003, Kavanaugh personally coordinated the Administrationââ‚â„¢s "unsuccessful" nomination of Priscilla Owen to the Fifth Circuit. Perhaps now that Owen's nomination has turned into a success, PFAW will give Kavanaugh some of the credit.

3. "Troubling Lack of Experience"

When asked how many cases he has tried, Kavanaugh replied "[n]one, as I have not been a trial lawyer." PFAW finds this troubling. PFAW also contends that Kavanaugh has less legal experience than most DC Circuit judges had when they were appointed. Of course, those arguments are without merit, because Kavanaugh has been gainfully employed as an attorney, albeit an appellate attorney rather than a trial attorney, having argued both civil and criminal matters before the Supreme Court and circuit courts throughout the country. Apparently, PFAW believes that only trial lawyers need apply, and/or that de facto age discrimination against Kavanaugh is somehow legitimate.

These three PFAW objections have about as much substance as the "ether" that was supposed to separate the planets. I hope PFAW is unable to separate this nominee from confirmation.

UPDATE: The Kavanaugh nomination is apparently on hold until the end of 2005.

UPDATE #2: The Kavanaugh nomination was bounced back to the White House on December 23, 2005.

UPDATE #3: Kavanaugh was renominated on January 25, 2006.

UPDATE #4: Links to Kavanaugh's April 27, 2004 Senate hearing are here.

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Posted at 5:51pm on May 29, 2005 Status of the Myers Nomination

By AndrewHyman

Today on ABCââ‚â„¢s This Week program, Senator Specter again made his case for William Myers, arguing that Myers should be confirmed. Specter has previously said that, ââ‚Å“William Myers would give some balance to the Ninth Circuit, and that is going to be one of the arguments I am going to make."

Like Specter, Senator George Allen is also urging that the Myers nomination be voted on soon: ââ‚Å“Once we get through Janice Rogers Brown and Judge Pryor, I think the next one that should test all this should be William Myers for the 9th Circuit."

Myers has already been reported favorably out of committee. But, Senator Reid is now arguing that Myers is not protected by the ââ‚Å“extraordinary circumstances" hurdle in the MOU, and so Reid is threatening a filibuster:

Aides to Senate Minority Leader Harry Reid told FOX News that Democrats will filibuster the nomination of Saad and William Myers to the 9th Circuit Court. Democrats say both nominees are exempt from the "exceptional circumstances" clause in the bipartisan agreement.

Senator Reid is trying to have it both ways by also saying that, ââ‚Å“The nuclear option is gone for our lifetime." In reality, if the ââ‚Å“extraordinary circumstances" provision is inapplicable to Myers, then so too the non-nuclear pledge must be inapplicable to Myers; after all, both of those provisions are in Part II of the MOU, instead of in Part I where Myers is named.

Senator DeWine clearly stated at the press conference announcing "The Deal," as follows:

Senators have agreed that they will not filibuster except in extraordinary circumstances.

Thus, the New York Times correctly reported that the ââ‚Å“extraordinary circumstances" language does indeed apply to Myers:

Dr. Frist said he would bring the Myers nomination to the floor at the ââ‚Å“appropriate time," a move that could provide a more strenuous test of the agreement, which bars use of filibusters against judicial nominees except in ââ‚Å“extraordinary" cases.

Surely, the mere fact that Myers is named in a different part of the MOU from the ââ‚Å“extraordinary circumstances" language should not mean that he is not protected by that language. Otherwise, Henry Saad wouldnââ‚â„¢t be protected either, which would contradict what Senator Ben Nelson has explained:

If he [Judge Saad] were to come out [of committee] then he would, in my opinion, get an up-or-down vote, or some of my colleagues may decide that thatââ‚â„¢s exceptional circumstances, so thatââ‚â„¢s sort of where we are. I voted against cloture on Judge Saad, which is the only time I voted against cloture for the filibuster, but the reason I did it was I couldnââ‚â„¢t go to an up-or-down vote because I couldnââ‚â„¢t get the file; it was a file that had some information that I wanted to get.

Incidentally, Senator Reid's notion that Myers is not protected by the "extraordinary circumstances" language suggests that Owen, Brown, and Pryor weren't covered by that language either, and so up-or-down votes for Owen, Brown, and Pryor would set no precedent regarding the meaning of the "extraordinary circumstances" language. This is an additional reason to be very wary of conceding Reid's point about Myers being exempt from the "extraordinary circumstances" language.

Even if Reid's point is conceded, and Myers is determined not to be protected by the "extraordinary circumstances" language in the MOU, it would still be wise to insist upon an up-or-down vote for Myers. This is because the MOU will expire less than two years from now, at which time all nominations would become subject to the Myers precedent.

For more info about Myers, see his Dept. of Justice profile. Also, his entire February 5, 2004 hearing can be viewed online (using RealPlayer). Moreover, the Committee for Justice has two useful pdf documents about Myers, here and here. The written hearing report for Myers is linked over at the right-hand-side of the confirmthem home page. Former Senator Alan Simpson's glowing endorsement of Myers is here (referencing the fact that Myers has been endorsed by Cecil Andrus who was Interior Secretary in the Carter Administration).

I must say that, personally, I am somewhat less enthused about the Myers nomination as compared to some of Bush's other nominations (I wish Myers were more pro-environment and anti-boundless-privacy-rights). Nevertheless, all nominees who make it to the Senate floor should be voted upon. That was the general tradition for 214 years, and it would be very unfortunate if that tradition is now abandoned, in favor of a minority veto.

Regarding Judge Saad, why not have a cloture vote, just to find out whether or not he can garner more than 49 votes? Without knowing that, it's difficult to know how to proceed with the Saad nomination. On the other hand, it's pretty clear that Myers can get more than 49 votes.

Reid is not just planning filibusters against Saad and Myers. He's also targeting Kavanaugh and Haynes, according to this AP report:

In the privacy of his Capitol office last Monday night [May 23], Sen. Harry Reid, D-Nev., asked for commitments from six Democrats fresh from the talks. Would they pledge to support filibusters against Brett Kavanaugh and William Haynes, two nominees not specifically covered by the pact with Republicans? Some of the Democrats agreed. At least one, Sen. Ben Nelson of Nebraska, declined.

So, it looks like we're going to have multiple judicial filibusters pretty soon --- which may or may not be what the Republican signers of the MOU wanted.

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Posted at 7:39pm on May 28, 2005 Comments Are Welcome

By AndrewHyman

Comments from anyone are welcome here. But one of the rules is that a legitimate email address should be provided, upon request. Thank you.

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Posted at 4:10pm on May 28, 2005 Does George Soros Own Associated Press?

By AndrewHyman

AP reported today:

Senate Majority Leader Bill Frist, R-Tenn., had wanted to ban the process that allows opponents of legislation or a nomination to prevent final action by erecting a 60-vote hurdle.

Shall we attribute this to an innocent mistake, or to dishonesty?

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Posted at 12:59am on May 28, 2005 The Cloture Petition for William Myers

By AndrewHyman

The cloture petition for Priscilla Owen can be seen here. Similar petitions have now been filed for Janice Rogers Brown and William Pryor. Such a petition has not yet been filed for William Myers.

I would like to suggest that the petition for Myers be signed by a majority of the Senate, and that the petition mention that the signatories concur with the nomination. Then the President can fight it out in the courts, as to whether the petition constitutes advice and consent.

A similar idea was suggested here. I believe that this solution could help to restore the system that was designed by the Framers of the Constitution, and that existed for 214 years.

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Posted at 4:30pm on May 27, 2005 <em>Fox News</em> Has an Odd Report

By AndrewHyman

Patterico has a transcript from a May 26 Fox News report by Major Garrett, on ââ‚Å“Special Report With Brit Hume." That transcript is also below the fold. Iââ‚â„¢m kind of skeptical about this Fox News report, which basically says that Frist and Bush urged DeWine and Graham to enter into ââ‚Å“The Deal" because Frist and Bush were worried that Specter might not vote for the constitutional/nuclear/Byrd option. I havenââ‚â„¢t heard this Fox News report confirmed by anyone else, as of yet. The report also concludes by saying Graham and DeWine have conceded that Democratic filibusters of both Saad and Myers will not trigger the C/N/B option. However, this seems to be at odds with Senator Nelsonââ‚â„¢s recent statement that any filibuster of Saad would have to overcome the ââ‚Å“extraordinary circumstances" hurdle (and is also at odds with a recent NY Times article that reported any filibuster of Myers would have to overcome the same hurdle).

I would really like a little bit of glasnost here. Citizens have a right to know where Senator Specter stands on an important issue like this. Citizens also have a right to know why DeWine and Graham believe that Myers and Saad should not trigger the "nuclear option," if indeed they do believe that. Is it because there are extraordinary circumstances, and if so then what do they think those extraordinary circumstances are? Will the rights of a Senate majority to provide advice and consent be snuffed out without any public explanation?

UPDATE: Also below the fold is a segment from the Rush Limbaugh show, titled "Bush, Frist Did Not Dispatch Graham & DeWine to Make a Deal."

First, here's the transcript from Fox News:

Okay, here's what Rush Limbaugh has to say about it:

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Posted at 2:57pm on May 27, 2005 "Pryor restraint: gay Republicans and Republican jurisprudence"

By feddie

That is the title of this excellent post by Paul over at the Right Side of the Rainbow, a very good blog (I obviously don't agree with Paul on every issue, but I have a tremendous amount of respect for his abilities as a blogger). Here's a snippet of the post:

Log Cabin's other objection to William Pryor is that he does his work. As Alabama's attorney general, Judge Pryor filed a brief in support of Texas in Lawrence v. Texas, the case the U.S. Supreme Court used to overturn sodomy laws in the states where they still existed. But there's nothing unusual about a state attorney general filing an amicus brief in a case where the law of his own state is implicated. That's part of his job.

In that brief, Judge Pryor wrote:

[A] constitutional right that protects 'the choice of one's partner' and 'whether and how to connect sexually' must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.

If gays and lesbians find that statement offensive, it's because they don't like having their own conduct compared to other conduct that they, like most Americans, view as immoral. But Judge Pryor wasn't making a comparison; he was making a legal argument . . . .

As much as we might approve of the outcome in Lawrence, we'd be hard pressed to identity the logical limits of its holding. And that's what Judge Pryor was saying in his brief. He was arguing that the court could distinguish homosexual conduct from other forms of sexual conduct only by judicial fiat . . . .

Judge Pryor would not require the states to prohibit homosexual conduct or abortion; rather, he would leave them at liberty to decide for themselves public policy questions about which the Constitution is silent. This is known in the vernacular as democracy, and deference to it is a staple of Republican jurisprudence. But Log Cabin, which protests its fealty to Republican governance, describes Judge Pryor's respect for democratically-enacted law as a "pre-formed, inflexible ideal;" it seeks to bypass the people's elected representatives and have the courts produce outcomes with which the group agrees. Judge Pryor is, quite properly, unwilling to do that.

Log Cabin instructs us to "Call your Republican senator today" and express a view on William Pryor's confirmation.

Indeed I will.

Well said, Paul.

(cross-posted at Southern Appeal)

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Posted at 2:19pm on May 27, 2005 Krauthammer on the Deal

By AndrewHyman

Charles Krauthammer has penned a piece titled "Profiles in Flinching" that concludes this way:

[DeWine and Graham] both say that if the Democrats start to filibuster again, they will defect back to the warm embrace of Frist and go nuclear. Will they be willing to forfeit their newfound celebrity and stature as statesmen? That would be a profile in courage.

If DeWine and Graham are willing to be tough with the rest of their "Gang of 14," then the deal may turn out to have been worthwhile. But, if Graham and DeWine are not willing to go "nuclear" in order to defend the Senate majority's right to advise and consent, then the deal will have been really unfortunate.

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Posted at 11:10am on May 27, 2005 Chafee is the New Specter

By carney

Lincoln Chafee's office confirmed that it was Owen's dissent in a parental notification case that caused his NAY vote on her confirmation. In NRO today, Dave Freddoso and I say it's time for the White House to throw him overboard.

Itââ‚â„¢s not just that Chafee has gone on the record repeatedly voting that Roe v. Wade was rightly decided and ought not be overturned. If Chafeeââ‚â„¢s litmus test wonââ‚â„¢t even abide parental notification, having him in the Senate undermines Bushââ‚â„¢s stated goal of appointing justices like Scalia and Thomas. If Bush means what he says about the courts ââ‚” if this hasnââ‚â„¢t all been a show to mollify the religious Right ââ‚” heââ‚â„¢ll throw Chafee overboard.

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Posted at 11:42pm on May 26, 2005 Comic Relief -- The Extreme Extremist

By Lorie Byrd

Liberal Larry discusses the confirmation of Priscilla Owen. You know the Democrats' rhetoric is overdone when spoofs like this one are almost unidentifiable as satire.

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Posted at 9:36pm on May 26, 2005 Cloture Filed on Pryor and Brown

By AndrewHyman

Cloture motions have been filed this evening for the nominations of William Pryor and Janice Rogers Brown. Hat tip to Bench Memos. According to the Senate website, Justice Brown will be considered first, when the Senate returns on June 6.

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Posted at 4:18pm on May 26, 2005 Draft and Final Deals

By AndrewHyman

You can compare the "DRAFT DEAL" to the "FINAL DEAL," if you want. I think it's kind of interesting that the final deal seeks "a return to the early practices of our government," which would entail no more appearances by nominees before Senate committees (perhaps the signers of the deal didn't realize that hearings for nominees only began in the mid twentieth century).

Anyway, check out this interesting quote from Jonah Goldberg:

If I say two plus two equals four, and you say two plus two equals one billion, is it really such a great advance to split the difference and agree that it's somewhere near 500 million?

I hope we don't get into a situation where people like Senators DeWine and Graham argue for splitting the difference with the Democrats, on judicial filibusters.

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Posted at 3:33pm on May 26, 2005 Extraordinary This, Extraordinary That

By AndrewHyman

The New York Times reports that William Myers will be filibustered only under "extraordinary" circumstances:

Republicans are pressing for a vote on William G. Myers III, who was not guaranteed a vote under the agreement. Dr. Frist said he would bring the Myers nomination to the floor at the "appropriate time," a move that could provide a more strenuous test of the agreement, which bars use of filibusters against judicial nominees except in "extraordinary" cases.

Democratic leaders have indicated that they intend to maintain the filibuster against Mr. Myers. They say they also have commitments from most Democratic signatories to the judicial agreement to block Brett M. Kavanaugh and William J. Haynes, whose nominations, unlike that of Mr. Myers, have not cleared the Judiciary Committee.

Senator Mike DeWine of Ohio, a Republican leader of the compromise initiative, would not address on Wednesday whether filibusters against these two nominees would be viewed as a breach of the agreement.

"I'm not going to speculate," Mr. DeWine said.

Hmm, I wonder what "extraordinary circumstances" surround the Kavanaugh nomination. He does have extraordinarily good qualifications to be a judge.

UPDATE: The idea that majority-supported judicial nominations can be filibustered to death under "extraordinary circumstances" is very strange. Between 1789 and 2003, such circumstances never existed once.

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Posted at 2:56pm on May 26, 2005 Boyle and Kavanaugh delayed

By Quin

Wonderful. Boyle and Kavanaugh AGAIN were delayed by the Judiciary Committee. Why are we STILL slow-walking these nominees? Boyle has been waiting forever. Kavanaugh is the White House staff secretary; if I were the president, I would call in DeWine and Graham, etc., and tell them exactly which commode I would ensure their political careers would be flushed down if they don't get Brett confirmed NOW.

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Posted at 10:59am on May 26, 2005 Blog Poll On Chances Of Supreme Court Filibuster

By Lorie Byrd

Polipundit, where I blog and whose readers include a large number of Republican primary voters, ran a poll yesterday asking the following question:

What will happen when President Bush nominates a Supreme Court Justice?

-- No filibuster, nominee gets through

-- Democrats will filibuster successfully

-- Democrats will filibuster, Republicans will use the Constitutional Option

Click here to answer the poll and to see the results so far. When I last checked, the respondents were not optimistic that Democrats would refrain from using the filibuster. This made me wonder how some of these Republican primary voters might voice their opinions in upcoming Senate races.

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Posted at 8:52pm on May 25, 2005 Good News For Kavanaugh, Saad, and Haynes

By AndrewHyman

Senator Ben Nelson gave a long interview on Washington Journal yesterday, and he clarified that filibusters against Kavanaugh, Saad, and Haynes must meet the threshold of "extraordinary circumstances." In other words, that threshold is not just applicable to people nominated in the future, but is also applicable to people who have already been nominated. Here's what Sen. Nelson said:

If he [Judge Saad] were to come out [of committee] then he would, in my opinion, get an up-or-down vote, or some of my colleagues may decide that that's exceptional circumstances, so that's sort of where we are. I voted against cloture on Judge Saad, which is the only time I voted against cloture for the filibuster, but the reason I did it was I couldn't go to an up-or-down vote because I couldn't get the file; it was a file that had some information that I wanted to get.

This seems to me like good news for Saad, Kavanaugh, and Haynes. They can't be filibustered unless there are extraordinary circumstances. It's still unclear to me, however, whether or not the "extraordinary circumstances" threshold would also be applicable to Myers, given that Myers had already come out of committee when the agreement was signed (the agreement distinguishes between a "pending nominee" and a "future nominee").

I didn't watch the whole Nelson interview, so others might want to do that. Incidentally, even if the "extraordinary circumstances" threshold is not presently applicable to Myers, there are ways to make it become applicable, as I mentioned earlier.

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Posted at 8:08pm on May 25, 2005 <em>NY Times</em> Can't Count

By AndrewHyman

The Times concludes its editorial tomorrow this way:

There is absolutely nothing unfair about allowing a minority that actually represents more American people to veto lifetime appointments of judges that are far outside the mainstream of American thinking.

What about the President of the Senate? Doesn't Mr. Cheney represent anyone?

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Posted at 7:55pm on May 25, 2005 Video of Press Conference

By AndrewHyman

Video of the May 23 press conference of 14 Senators, at which they announced their agreement, is available here. The deal itself is listed under "Documents" on the right-hand-side of the confirmthem page.

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Posted at 7:10pm on May 25, 2005 Kavanaugh in cross-hairs!

By Quin

Okay, here's grist for the mill, from a wire story: "And liberal organizations, such as the Alliance for Justice and People for The American Way, are asking senators to reject not only Saad and Myers, but also Kavanaugh and Haynes.

'We will keep four judges off the court,' vowed Charles E. Schumer, D-N.Y. 'They are Myers, Saad, Kavanaugh and Haynes.' "

So far I seem to be a one-man band here sounding the alarm about the Kavanaugh nomination. But I URGE everybody out there to make it clear to GOP senators that we will NOT stand for Kavanaugh to be blocked. He should not be allowed to go the way of Estrada, Allen, Kuhl, Pickering, Myers (apparently) and Saad. He is NOT an "extraordinary circumstance." This is serious stuff. Please, a message to ALL conservative groups out there: Lobby, hard, on behalf of Kavanaugh.

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Posted at 6:42pm on May 25, 2005 Senator Warner on the Deal He Signed

By AndrewHyman

Hat tip to Mark Angellotti for pointing out Brit Hume's interview with Sen. John Warner. Here's some of what Warner said:

[T]he constitutional option, which we call it, is not off the table. And we all 14 understand that. It is very much on the table.

To use an example, we simply unscrewed the fuse. But that fuse can be put back in if we detect that it's not extraordinary circumstances, but we're back to where the Democrats begin to trot out and do a leadership-led type of series of filibusters.

At that point, senators, seven senators of which I was one, any one or more of them may say, "Time out. I'm not satisfied that this is extraordinary circumstances as a matter of good conscience. I'm going to give leader Bill Frist the vote." And then Frist can ascertain whether or not he wants to use that constitutional measure.

This very much agrees with what Senators Graham and DeWine have said.

UPDATE: According to the following report, Senator Mark Pryor agrees with DeWine, Graham, and Warner:

DeWine said he explicitly raised the issue just before the group announced the deal on Monday night. "I said at the end, 'Make sure I understand this now, that . . . if any member of this group thinks the judge is filibustered under circumstances that are not extraordinary, that member has the right to vote at any time for the constitutional option.' Everyone in the room understood that."

Sen. Mark Pryor (D-Ark.), another member of the group, concurred, saying that while he hopes the nuclear option is gone for the duration of the 109th Congress, circumstances could bring it back. "I really think Senator DeWine and Senator Graham have it right," he said.

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Posted at 5:37pm on May 25, 2005 Ordinary v. Extraordinary

By DanCT

Now that Owen has defined a reasonably clear a distinction between "extreme" and "extraordinary" in the eyes of the left, expect them to push smears like "oooo...you should just see what's in his confidential FBI files, THEN you'd know" even harder so they can make nominations look extraordinary rather than extreme. McCain's "solution" will make the confirmation battles reek even more than they did before, much as his campaign finance reform led to even more stench in the political campaigns.

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Posted at 5:21pm on May 25, 2005 A Statement From Senator Frist on Owen Confirmation

By AndrewHyman

It's brief:

Todayââ‚â„¢s vote marks a triumph of principle over politics and results over rhetoric. Justice Owen is a distinguished, mainstream jurist who has exhibited extraordinary patience and courage in the face of vicious and continuous criticism. This vote should mark a new beginning here in the Senate ââ‚“ a step forward for principle, fairness and the Constitution. However, we cannot stop with this single step. Though it remains my hope that the Constitutional option does not become necessary, we must give fair up or down votes to other previously blocked nominees. It is the only way to close this miserable and unprecedented chapter in Senate history.

Whether or not the Constitutional option is ultimately used during this 109th Congress, everyone now fully realizes that such an option is available. Whatever shenanigans are pulled by the Senate minority in the future, the Senate majority will ultimately be responsible for allowing those shenanigans. This has been a good lesson for everyone involved.

Senator Hatch called this recent agreement a truce rather than a treaty, which sounds pretty accurate. With all of its flaws and distortions, the agreement may turn out to be worthwhile, in which case we can all be at least somewhat grateful for the leadership of Senator Ben Nelson of Nebraska, even if he did vote against Judge Owen today. He seems to have helped pave the way for a more traditional and reasonable confirmation process, in the event of one or more Supreme Court vacancies this summer. Of course, if everything turns sour, we can blame him, too. :-)

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Posted at 3:11pm on May 25, 2005 On the constitutionality of Senate Rule XXII:

By feddie

I have questioned for some time whether it is constitutionally permissible for the dems to filibuster President Bush's judicial nominees, but most of the lawyers I've spoken with don't seem to be as troubled (pointing, understandably, to the Senate's right to make its own rules). The problem with that argument, as I see it, is that the text of Article II, Sec. 2--i.e., "[The president] . . . shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court, and all other officers of the United States . . . ."--would appear to impose an obligation on the entire "Senate" to advise the president with respect to his judicial nominations. Indeed, it seems fairly clear to me that the foregoing text outlines the process by which justices/judges are to be considered; and a filibuster of a judicial nominee prevents that mandated constitutional process from taking place. In fact, I was just having this debate last night over at the Greedy Clerks Board.

Anyway, Mama Feddie (a staunch dem) emailed today with a link to this post by John Jay Hooker, a Vandy law grad and long-time dem activist (who has been a thorn in the side of many a Republican), in which he outlines his reasons for concluding that the Senate dems' judicial filibuster tactic is patently unconstitutional:

Sen. Frist has every right, and indeed the duty, to see that every presidential nominee for the Federal bench at every level gets an up or down vote. That is the constitutional requirement, notwithstanding the fact that the Senate for 200 years has failed to acknowledge the constitutional requirement set out in Article II, Section 2, Paragraph 2, which mandates that the Senate advise and consent with respect to all judicial nominees. The requirement is for an up or down vote and a majority of the Senate can confirm any nominee. A filibuster designed to prohibit an up or down vote is in effect a "pocket veto" and is unconstitutional.

The Constitution was written by 55 educated and highly intelligent men in Philadelphia in 1787, but it was written so that it could be understood by people of limited education and modest intelligence. It was those ordinary people who ultimately ratified the Constitution and made it the fundamental law of the land.

It is preposterous that the current members of the United States Senate and all of their predecessors for more than 200 years haven't been able to read the Constitution and do what it says. Article II, Section 2, Paragraph 2, of the Constitution gives the President of the United States the exclusive power to nominate all Federal judges and the exclusive power to appoint them subject to confirmation of these judges by a majority vote of those who wish to advise and consent in the Senate.

The Senate has the right to make its own rules under Article I, Section 5, of the Constitution, but it does not have the right to make a rule, i.e., Senate Rule XXII, permitting filibusters and requiring a super majority of three-fifths to stop a filibuster before the Senate can proceed to an up or down vote on each judge. It is obvious to anyone who can read that Senate Rule XXII is in direct conflict with Article II, Section 2, Paragraph 2, and, accordingly, is unconstitutional as it violates the fundamental law.

Therefore, Sen. Frist as the Majority Leader and, even more importantly, the President of the United States who nominated these judges, and the judges themselves, who likewise have the right to an up or down vote, are entitled to confirmation if a majority of the Senate favorably gives its advice and consent.

The so-called nuclear option or the constitutional option is not necessary. The legitimate option is the option that Sen. Frist has to make a motion that Senate Rule XXII is unconstitutional. There is no need to violate Senate Rule XXII as the nuclear option requires because Senate Rule XXII is unconstitutional and the Senate should forthwith so declare. Therefore, Sen. Frist has the absolute right as the Majority Leader to make a motion for the Senate to declare Senate Rule XXII unconstitutional. Senate Rule XXII should be taken off of the books so it can no longer be the poison for the SenatorsÂ? minds that so agitates them that they can't agree on the time of day or adhere to the plain language of the Constitution of the United States.

Any Senator on either side of the aisle who votes against declaring Senate Rule XXII unconstitutional either canÂ?t read or is so prejudiced that he or she can't see the truth. However, if there are enough who can't read or can't see the truth to defeat the motion, then Sen. Frist should take this matter to the Supreme Court of the United States which has the jurisdiction to issue a Declaratory Judgment as to whether or not Senate Rule XXII is unconstitutional.

Our democratic-representative-republican form of government demands in the future that the Judicial Branch of government and the Legislative Branch of government and the President of the United States function in accordance with the constitutional mandates. In this instance, the constitutional mandate is that the President has the right to nominate, the Senate has the right to advise and consent subject to a majority vote, and, likewise, the judges who have been nominated are entitled to an up or down vote on their nomination.

Therefore, any compromise that does not provide for the aforesaid violates the Constitution. That's why I claim -- SENATOR FRIST IS RIGHT AND THE COMPROMISE IS WRONG!

Well, I don't necessarily agree that the issue is as clear as Mr. Hooker seems to believe; but I like his style. :)

(cross-posted at Southern Appeal)

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Posted at 2:08pm on May 25, 2005 Alito and Garza

By Quin

The two best choices for the Supreme Court (assuming two openings this summer): Alito and Garza. They've both been on the court for years, with excellent reputations. Both in their 50s. Both very difficult to filibuster against.

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Posted at 12:54pm on May 25, 2005 Temporary Cooling Off of Filibuster Issue Clears Way for Bolton Vote

By DanCT

Boxer relents and will allow a vote on Bolton.

"There is no desire for a filibuster," said Sen. Chris Dodd, D-Conn.

(more)

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Posted at 12:49pm on May 25, 2005 Strong Statement From Frist

By DanCT

"The confrontation over judicial filibusters is the greatest single constitutional issue to confront the Senate in our lifetime."

On the floor, he discussed in detail the issues at stake -- a good read.

FRIST FLOOR STATEMENT ON JUDICIAL NOMINATIONS:

WASHINGTON, D.C. ââ‚“ U.S. Senate Majority Leader Bill Frist, M.D. (R-TN) made the following statement this morning on the Senate floor:

The confrontation over judicial filibusters is the greatest single constitutional issue to confront the Senate in our lifetime.

That is because this issue involves the relationship between the Senate and the Presidency, and the relationship between the Senate and the courts. It involves all 3 branches of government! In addition, it involves interaction between majority and minority parties within the Senate itself.

The Senate confronts many significant issues every year, but none of them touches the grand institutions of American democracy the way this one does.

The President has the constitutional obligation to appoint judges. And the Senate has constitutional responsibility to offer its advice and consent. For 214 years, the Senate gave every nominee brought to the floor a fair up or down vote. Most we accepted, some we rejected. But all those nominees got a vote.

In the last Congress, however, the minority leadership embarked on a new and dangerous course. They routinely filibustered 10 of President Bush's appellate court nominees and threatened filibusters on six more. Organized and fueled by the minority leadership, these filibusters could not be broken. By filibuster, the minority denied the nominees a confirmation vote and barred the full Senate from exercising its obligation to advise and consent.

The purpose of the filibusters was clear. It was not only to keep the President's nominees off the bench, it was to wrest effective control of the appointments process from the President. Anyone who did not pass the minority leadership's ideological litmus tests would be filibustered. That meant a minority would dictate whom the President should appoint if he expected the nominee to get a confirmation vote. This was a power grab of unprecedented proportions. And with more filibusters threatened for this Congress, the power grab would become even bolder and more entrenched.

Fundamental constitutional principles were called into question. These included the separation of powers, checks and balances, the independence of the judiciary, and negation of the Senate's right to advise and consent.

The minority claimed the right to impose a 60 vote threshold before a nominee could pass muster, for that is the number needed to invoke cloture and break a filibuster. The Constitution doesn't say that. It only requires a majority to confirm. But for a minority spinning novel constitutional theories, the real Constitution took a back seat.

The Republican majority tried at first to invoke cloture on each of the judicial nominees. But driven by the minority leadership, the filibusters proved resilient to cloture. Then, we introduced a filibuster reform proposal and took it through committee. But it died without action because it was sure to be filibustered itself. So, we turned to the voters in November, and the election strengthened our majority. But the minority ignored the election and dug in its heels.

Faced with the certainty that the minority would expand its filibusters, Republicans faced a critical choice. Either accept the filibuster power grab as the new standard for the Senate, or restore the tradition of up or down votes for the nominees. We as Republican Leadership decided to stand for a principle. And that principle is clear. It is clear without trimming or equivocation: every judicial nominee brought to the floor shall get a fair up or down vote.

The Constitution specifically gives the Senate the power to govern itself. And we were fully committed to use that power to establish a process by which a confirmation vote would occur after reasonable debate. This approach has a lot of precedent. The minority attempted to demean it by calling it the ââ‚Å“nuclear option.ââ‚? But the nuclear option is what they themselves detonated with their filibuster power grab initiated in the last Congress. The proper term for our response is constitutional option, because we would rely on the Constitution's power of self governance to restore Senate traditions barring judicial filibusters.

Against their unprecedented power grab by filibuster ââ‚“ their nuclear option -- the constitutional option is the only effective certain antidote.

The moment of truth was to have come yesterday on May 24. But action was preempted by an agreement among seven Republicans and seven Democrats to forestall use of the constitutional option in exchange for confirmation votes on just three nominees and a promise that filibusters would only occur in ââ‚Å“extraordinary circumstances.ââ‚? I was not a party to that agreement nor was the Republican Leadership. It stops far short of guaranteeing up or down votes on all nominees. It leaves open the question of whether Miguel Estrada ââ‚“ who has been filibustered by the minority seven times in the last congress ââ‚“ would be an ââ‚Å“extraordinary circumstance.ââ‚?

Now we move into a new and uncertain phase. Today the Senate will confirm Priscilla Owen to the Fifth Circuit Court of Appeals. Several more of the nominees will follow her. Priscilla Owen, a gentle woman, accomplished lawyer and brilliant Texas jurist was unconscionably denied an up or down vote for more than four years. The minority distorted her record, cast aspersions on her abilities, and rendered her almost unrecognizable. She had the fortitude to see the process through. And very late, but at long last, she will be confirmed by an up or down vote.

· Without the constitutional option, Priscilla Owen would never have come to a vote. Neither would any of the other nominees.

· Without the constitutional option, judicial filibusters would have become a standard instrument of minority party policy. The agreement among the 14 is based on the trust that casual use of judicial filibusters is over.

· Without the constitutional option, the minority would have adhered to the path it was on and deal brokers would have had no deal to broker.

I am now hopeful but wary. As Ronald Reagan was fond to say, trust but verify. If nominees receive up or down votes and the sword of the filibuster is sheathed, then the Republican Leadership can be proud that its focused direction on the constitutional option arrested a dangerous and destructive trend. If filibusters again erupt under circumstances other than extraordinary, we will put the constitutional option back on the table and move to implement it.

Abraham Lincoln once said that when it is not possible to do the best, it is best to do what is possible. Standing firm for the principle of fair up or down votes, we have made real progress. That is something we all can celebrate. And that principle will be our guidepost as the rest of this great constitutional drama unfolds.

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Posted at 12:41pm on May 25, 2005 Owen Confirmed

By DanCT

Owen wins 56-43.

Interesting votes include:

Byrd (D-WV. Does this mean he'll vote on competence rather than ideology? Doubt it.)

Landrieu (D-LA. She is not as left as most Democrats, so ideological issues may not be paramount for her.)

Collins (R-ME. Big pro-choice Republican. NOT voting ideologically here.)

Snowe (R-ME. Big pro-choice Republican. NOT voting ideologically here.)

No:

Chafee (R-RI. That ranckles. Looks like an abortion litmus test.)

Nelson (D-NE. I thought he was supposed to be a pro-life moderate...)

Pryor (D- AR. He voted for cloture, so Owen is not "extraordinary", but she is not ideologically correct)

Lieberman (D-CT. Associating with Gore really did a number on his "reasonable" credentials.)

Salazar (D-CO. Purple state. Votes for cloture; votes against confirmation. Inference: Ideology does not constitute "extraordinary", but does constitute grounds for a no vote).

Dorgan (D-ND. Red state Democrat on the wrong side, but he is not up for re-election any time soon.)

Dayton (D-MN. Gopher pokes his head out of the hole long enough to vote.)

Nelson (D-FL. Another red state Dem on the wrong side. He's up for election in '06).

Lincoln (D-AR. Not up for re-election until 2010).

Baucus (D-MT. Deeply red state. Re-election vote in '08, but who could defeat him? Calling Marc Racicot!)

Abstain:

Sen. Daniel Inouye (D-HI. Where is Senator Inouye? He skipped the cloture vote too.)

Historically, nominees have typically been confirmed if they were competent and ethically clean. PFAW and NARAL have been pushing hard for two decades to institute ideological litmus tests first under the guise of "judicial temperament" (in the '80s) and now less obscurely as "extreme right-wing activism." It looks like their campaign has been enormously successful with Democrats, but GOP still resists. The GOP hasn't been tested lately, but the far out candidate Ginsberg was confirmed 96-3, and the equally far out candidate Breyer won 87-9. What's different about this vote is the degree that ideology comes to play so strongly in a Circuit Court confirmation, as opposed to Supreme Court. Next, politics are bound to strongly enter into District Court confirmations as well.

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Posted at 11:46am on May 25, 2005 Taranto Sees Rays of Hope Too

By DanCT

In today's Best of the Web, James Taranto expresses some optimism about the deal:

Did the Democrats really want to go through all this again? Well, some no doubt did. Hate is more important than success to the likes of Barbara Boxer and Ted Kennedy, and in any case senators from liberal states are unlikely to pay a price for obstructionism. But the filibuster strategy runs counter to the inclinations and political interests of a substantial minority of Democrats, including, as we noted yesterday, at least five of the seven compromisers.

From where we sit, then, the actions of the Republican compromisers look like not a capitulation but a way of letting Democrats back down from a losing position without being humiliated.

Why not humiliate the Democrats? Well, here's one reason: "Democrats agreed on Tuesday to clear the way for the Senate to vote on the controversial nomination of John Bolton as the next U.S. ambassador to the United Nations, which was expected to pass mainly on party lines," Reuters reports.

The deal is wrong on principle (filibuster is still a possibility and "advice and consent" should not apply to nominations but only to appointments ), but the jury is still out on the politics.

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Posted at 11:38am on May 25, 2005 More Rays of Hope

By AndrewHyman

The deal says this, among other things:

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Obviously, Part A does not automatically commit signatories to invoke cloture if Brown, Pryor, or Owen were to be nominated to different judgeships (e.g. the Supreme Court). Likewise, Part B only refers to nominations of Myers and Saad to the 9th and 6th circuits respectively. If Myers were to be nominated for a different circuit instead (e.g. the 4th or DC Circuit), then that future nomination would very clearly benefit from the "extraordinary circumstances" hurdle described later in the agreement.

Nominating Myers for a different circuit could defuse some tension (the 9th handles way more enviro cases than other circuits). Even so, I don't think shuffling Myers to a different circuit would be necessary in order to avoid a filibuster.

As I mentioned previously, if Myers continues to be nominated for the 9th circuit, and then his nomination expires at the end of this one-year session of Congress, and then he is renominated, it may well be that he would then be able to benefit from the "extraordinary circumstances" hurdle in the agreement (see page 946 of Riddick which says that the ââ‚Å“president submits nominees anew each session").

And, even right now, there is a strong argument to be made that the "extraordinary circumstances" hurdle immediately applies to Myers. If it doesn't, then there is no reason to suppose that the agreement is any kind of admission that the Owen, Brown, and Pryor nominations lack "extraordinary circumstances."

UPDATE: Senator Nelson has made clear that the "extraordinary circumstances" hurdle already applies to Saad, but it's still unclear about Myers.

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Posted at 10:55am on May 25, 2005 Small ray of hope

By Quin

Okay, I'm on record as wanting to destroy the political careers of DeWine and Graham, etc., because of this pathetic, idiotic, unprincipled capitulation. All that said, I do see one ray of hope for future nominations. It is this: By and large, the Democrats who signed the deal are basically decent people. Mark Pryor and Mary Landrieu are tough-minded partisans, but they are, in the end, generally well-intentioned and generally trustworthy. (Landrieu going back on her word on the Estrada fight was inexcusable, but, in a sense, understandable: She justifiably had "a mad on" against the Republican Party in general after she was subjected to a truly objectionable cheap-shot campaign. Indeed, if the campaign against her had been a little less heavy-handed, she might have lost; she got a last-minute sympathy surge in part because the negative stuff against her went overboard. Then, after that, the White House rejected overtures by her colleague John Breaux to try to defuse the coming Estrada filibuster, which made her angrier still.) If those two truly have an agreement with the GOP as to what basic kinds of things constitute "extraordinary," and, more important, a real agreement to consult on the interpretation thereof, I believe they will try to ward off filibusters unless they feel personally offended by a nominee. Among the other Dems: Joe Lieberman is a good guy. Period. I have no idea what kind of person Nelson is, but he clearly leans a bit right of center politically. Inouye is a true war hero, although I've never seen him buck his party leadership and don't expect him to do so if Reid calls for another filibuster. Salazar, we still need to watch and get a better reading on. And as for Byrd, there is no need to belabor all of his faults... but there is one argument in favor of his character, his sense of personal honor, that must be remembered. If it weren't for Byrd's honor, then our fellow blogger, feddie (also of Southern Appeal), would not have had a judge to clerk for. Daniel Manion would not be a judge right now if it weren't for Byrd. Byrd opposed Manion, but when another Democrat went back on his word to a missing Republican, Byrd did a procedural maneuver to keep the Manion nomination alive for another day so the missing Republican could be represented fairly. Without Byrd's maneuver -- against his own desires to defeat Manion, but in defense of maintaining the honor of the Senate -- Manion would have lost by one vote. Instead, on the re-vote, Manion squeaked by -- if memory serves, again by one vote. So while I don't credit Byrd for philosophical consistency, I do believe his word is good. Let's hope I'm right.

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Posted at 6:57am on May 25, 2005 On Pryor

By feddie

Two articles are out today re: Pryor's nomination:

First, is this article by the Mobile Register, "High profile likely aided Pryor's bid--Vote on judicial nominee from Mobile probably coming next month," which notes, inter alia, that:

While the Senate was already proceeding Tuesday afternoon toward a final confirmation vote for Owen, the timetable for Pryor remained unsettled. U.S. Sen. Jeff Sessions, R-Mobile, had hoped it could take place as early as this week; other observers said it would probably occur after lawmakers return next month from their Memorial Day recess.

. . . .

As recently as this month, Democrats on the Senate Judiciary Committee again argued that Pryor's opposition to legalized abortion, along with other outspoken positions on divisive social issues, raised troubling questions about his ability to serve impartially as a judge.

But those views have also won him influential allies in conservative Christian organizations that have become a crucial part of the GOP base.

"I think he fits the exact model of what a judge should be," said Jay Sekulow, an influential Christian evangelical leader who is chief counsel for the American Center for Law and Justice, a Washington, D.C.-based organization specializing in constitutional law.

During Pryor's tenure as attorney general, he and Sekulow worked together on a high-profile school prayer case. In a front-page story in The Wall Street Journal last week, Sekulow stressed the importance of Pryor's nomination for "our people."

At the same time, Pryor "absolutely" benefited from his gamble to accept the temporary 11th Circuit judgeship, said Sheldon Goldman, a political scientist at the University of Massachusetts Amherst and an authority on the judicial selection process.

As a judge, "he didn't do anything so outlandish or grandstanding that the Democrats could point to as (evi dence) that this man was not fit to serve on the bench."

"He didn't stand out as an extremist."

And the B'ham News has this excellent editorial, "A deal at last in Senate standoff":

It serves Pryor well because it gives him a shot at a lifetime appointment to the 11th U.S. Circuit Court of Appeals, a position he already holds on a temporary basis. Democratic senators had threatened to block consideration of Pryor, who they portrayed as a dangerous judicial candidate who had put his conservative ideology above the law.

As Alabamians know, nothing could be further from the truth.

They recall Pryor as the courageous prosecutor who took on former Alabama Chief Justice Roy Moore for disobeying a federal court order to move a Ten Commandments monument from the state court building. They recall him arguing, successfully, for the popular chief justice's removal from the bench. They know Pryor did not take the challenge because of any disregard for the Ten Commandments. He certainly did not do it to score political points. He did it because he believes, first and foremost, in the rule of law.

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Posted at 1:31am on May 25, 2005 Is It True?

By DanCT

Noam Scheiber at New Republic has this to say about the MOU:

So a deal has been struck on the filibuster. Republicans will allow Democrats to keep the filibuster as long as Democrats never use it. This way, both sides win (except for the Democrats).

Is it true that both sides win (except the Democrats)? If so, Lindsey Graham will look like a genius instead of the fool that he has appeared to be in the past week or so. It's still too early to tell. Let's see what happens with Myers, Saad, Kavanaugh, and Haynes...

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Posted at 7:11pm on May 24, 2005 Frist: "Filibusters...almost impossible"

By DanCT

On the floor today, Senator Frist (R-TN) said: "...the agreement, if followed in good faith, will make filibusters of judicial nominees in the future, including Supreme Court nominees, almost impossible."

That conditional "if followed in good faith" does have some teeth. Graham and DeWine have both said they will use the "out clause" if they think a filibuster arises except in "extraordinary circumstances" -- and they don't hold the NARAL view of "extraordinary circumstances". Let's wait and see.

Democrats are trying to push the spin that the Byrd option is off the table:

"[The compromise] took the nuclear option off the table," Reid, D.-Nev., said May 25. "The nuclear option is gone for our lifetime. We don't have to talk about it anymore. I'm disappointed that there's still these threats of the nuclear option."

But it is clearly not gone because Graham and DeWine are already talking about it coming right back on the table at the first sign of Democrats' reneging by filibustering outside of "extraordinary circumstances." Expect floor debates on Kavanaugh, Haynes, Saad, and Myers. Expect cloture to be filed. Expect a vote on the Byrd option if the cloture vote does not pass. Let Graham and DeWine and the wobbly Democrats (i.e., the six who signed the deal, excepting Byrd) know that this is what you expect.

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Posted at 5:38pm on May 24, 2005 Pryor for Chief Justice!

By feddie

You gotta love this comment published over at The Corner today:

Under what possible circumstances could the Democrats stop Pryor from being elevated to CJ without breaking the deal? Here is the logic: Only "extraordinary circumstances" warrant stopping candidates; Pryor (and Brown and Owen and all the others placed on the C of Appeals by GWB) have not been stopped; Therefore, these nominations are not "extraordinary."

Pryor for CJ!!

Count me in! Indeed, I think SA or CT needs to begin selling "Pryor for Chief" t-shirts ASAP. :)

(cross-posted at Southern Appeal)

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Posted at 5:21pm on May 24, 2005 Kennedy Doesn't See the Graham/DeWine/Whelan Interpretation

By DanCT

Beldar describes Kennedy on the floor today:

At 9:30am: Bless his boozy, craven, liberal, lawyer-like heart, there's a reason that the senior senator from MS (in contrast to its junior senator) still keeps his law license intact. He just performed the first preemptory cross-examination of any Republican signer of the MOU who might waiver and claim he/she's off the hook if the Dem signers are vaguely naughty. He didn't quite use the word "iron-clad," but that's the concept and that's the language, and yes, Teddy absolutely gets both.

But there is an "out clause", Teddy, and we will point it out to you.

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Posted at 5:18pm on May 24, 2005 Graham Agrees with Whelan

By DanCT

Lindsey Graham (R-SC): "One of the major elements of the deal makes clear that if one of my seven Democratic colleagues decides to filibuster in the future because of an 'extraordinary circumstance,' I retain the right to vote for a rules change. It's my hope we never get to that point."

And he would have that right under the terms of the agreement, as explained in a previous post.

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Posted at 4:33pm on May 24, 2005 The Double-Edged Sword and the Out Clause

By DanCT

Ed Whelan (Bench Memos) argues that "...the provision that 'each signatory must use his or her own discretion and judgment in determining whether such circumstances exist' is double-edged: A Republican signatory is fully entitled to determine that 'extraordinary circumstances' do not exist and that a Democrat signatory's contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory's determination." (Pers. comm.)

Or, in other words, the clause "nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist" means that if Democrat signatories filibuster when Lindsey Graham and Mike DeWine (et al.) think the circumstances are not extraordinary, then they have their "out" clause. They can can rightly say that the nominees should not have been filibustered because the circumstances were not extraordinary. Thus, the GOPers would be released from their commitment to vote against the nuclear option.

That reading is more plausible to me than the alternative reading that Graham and DeWine were majorly duped. Now it is up to them to hold the Democrats' feet to the fire. Are they up to it? Graham surely is, and DeWine is mouthing the right words. That makes 48 GOP non-signers + 2 who will hold Dems to the agreement = 50. In theory, it looks good.

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Posted at 4:32pm on May 24, 2005 Kavanaugh okay?

By Quin

Despite what the NYT and others reported (which spurred my post on this subject this morning), I am now told by a good source that a sacrifice of Kavanaugh is NOT part of some side deal, and that indeed some of the GOP signatories would consider a filibuster of Kavanaugh a clear violation of the agreement... clear enough for,uh, retaliatory action. Let's hope my source is right.

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Posted at 3:25pm on May 24, 2005 Roll Call Vote on Cloture for Justice Owen

By AndrewHyman

Click here for a list of which Senators voted for cloture on the Owen nomination today. The vote was a landslide, 81-18, which augurs well for other majority-supported nominees like Myers and Kavanaugh. The 18 voting against cloture were as follows:

Biden, Del.; Boxer, Calif.; Cantwell, Wash.; Corzine, N.J.; Dayton, Minn.; Dodd, Conn.; Dorgan, N.D.; Feingold, Wis.; Kennedy, Mass.; Kerry, Mass.; Lautenberg, N.J.; Levin, Mich.; Lincoln, Ark.; Murray, Wash.; Reed, R.I.; Sarbanes, Md.; Stabenow, Mich.; Jeffords, Vt.

Incidentally, regarding Myers and Kavanaugh, it's not 100% clear to me whether the "extraordinary circumstances" hurdle (in the deal) would be applicable to their nominations, inasmuch as they may be "pending nominees" instead of "future nominees." However, that "extraordinary circumstances" hurdle certainly would be applicable after their nominations expire and they are then renominated. As Floyd Riddick explained (at page 946), the ââ‚Å“President Submits Nominees Anew Each Session."

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Posted at 2:15pm on May 24, 2005 "Deal clears path for Pryor vote"

By feddie

The Montgomery Advertiser has this report, which notes, inter alia, that:

A group of 14 senators cleared the way Monday for a confirmation vote for former Alabama Attorney General Bill Pryor, whose nomination to a federal appeals court was battered by a long and bitter fight over his fitness for the bench.

"This agreement should clear the way for him," said Sen. Jeff Sessions, R-Mobile, Pryor's staunchest backer in the Senate.

. . . .

Sessions said he hoped a confirmation vote for Pryor would be held soon, hopefully in the next couple of weeks.

"I'd like to push it and get it done as soon as possible," Sessions said. "It is better to move while the ink is still fresh (on the agreement) because people flip-flop."

Sessions, who backed Frist's efforts to eliminate the filibuster judicial nominees, said it was better to have the agreement.

"I have always thought an agreement would be better than a constitutional rules change," Sessions said.

(cross-posted at Southern Appeal)

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Posted at 12:45pm on May 24, 2005 DeWine Clarifies

By AndrewHyman

Senator Mike DeWine of Ohio added some interesting clarification yesterday (May 23), according to the New York Times:

"If an individual senator believes in the future that a filibuster is taking place under something that's not extraordinary circumstances, we, of course, reserve the right to do what we could have done tomorrow," said Senator Mike DeWine, Republican of Ohio, another lawmaker instrumental in the compromise.

I hope that every time a nomination is filibustered to death in the future, Senators DeWine and Graham will be required to explain why they think "extraordinary circumstances" exist. That includes for Myers, Kavanaugh and also for Miguel Estrada (if and when he's nominated for the Supreme Court).

Also, Senator Graham needs to go on record as agreeing with DeWine's clarification.

UPDATE: Senator Graham speaking on May 24, said as follows on the Senate floor:

If one of the seven decides to filibuster --- and I believe it's not an extraordinary circumstance for the country, for the process, then Iââ‚â„¢ve retained my rights under this agreement to change the rules if I think that's best for the country. That's only fair.

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Posted at 12:42pm on May 24, 2005 Cloture

By Zummo

KJL reports on bench memos that the Senate invoked cloture 81-18.

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Posted at 12:22pm on May 24, 2005 Man battle stations for Kavanaugh!!!!!!!!!!

By Quin

Okay, everybody, here is where the continuing fight moves to another confrontation: the nomination of Brett Kavanaugh to the DC Circuit. If the Dems filibuster Kavanaugh -- or if Judiciary GOPers don't move him to the floor -- then all hell should break loose. I mean, the GOPers who signed this agreement should be forced, by every political means available, including utter curtailment of all pork projects in their states, including being stripped of prized committee posts, including EVERYTHING available, to guarantee a straight-up-or-down floor vote on Kavanaugh, including by reinvocation of the constitutional option. If there is ANY deal to block Kavanaugh, every conservative in the country ought to man the ramparts. If Kavanaugh doesn't get a vote... indeed, if he doesn't get CONFIRMED... Lindsey Graham should be ostracized into oblivion. And the WHite House ought to join in the moves to squash these guys; after all, Brett is a top White House staffer. Blocking Brett's nomination would be the single biggest direct slap in the face to the WHite House that is possibly imaginable.

Now,why should conservatives care about Kavanaugh? Because he is a principled, thoughtful, brilliant, conservative, fair-minded young attorney of the first order. Conservatives who have dealt with him think he's great; moderates know he is fair, a straight shooter, etc. And Bob Woodward, of all people, paints Brett as a hero in his book on the Starr investigation.

Aha! The Starr investigation! Now we see the root of the Dems' pathetic objections to Brett. Anybody who worked for Ken Starr is treated, ipso facto, as a leper by the Dems. Never mind that Woodward describes Kavanaugh as the fair-minded, thoughtful adult in the Starr outfit -- wise beyond his years, far more balanced in his perspective than Starr was.

There is NO good reason for the Dems to oppose such a principled and fair-minded nominee. The ONLY reason they can offer is guilt by association.

For those reasons, this should be THE test case of the deal. If Kavanaugh is blocked by permanent filibuster, the GOP should say the deal has been breached, and do the constitutional option IMMEDIATELY. There is NO way, none on earth, that Brett's nomination can be characterized as an "extraordinary circumstance."

So, to Lindsey Graham and Mike DeWine and Susan Collins, et al., here's the gauntlet being thrown at your feet: Confirm Brett Kavanaugh, or your political career is over. Book it.

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Posted at 12:05pm on May 24, 2005 Fate of Kavanaugh and Haynes

By DanCT

Bradford Berenson (Bench Memos) received confirmation from "excellent sources" that an unwritten part of the deal is that Kavanaugh and Haynes will be sacrificed along with the two mentioned explicitly in the deal.

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Posted at 11:52am on May 24, 2005 A selective reading of conservative principles

By Zummo

Stephen Bainbridge is one of the best legal bloggers around, thus his analysis of the filibuster deal is that much more maddening. Bainbridge has an unfortunate tendency to scoff at conservatives when they disagree with him, and this is more of the same as he basically tells us all to chill out. He turns to selective quotations of Russell Kirk to inform us all of how unconservative we're all being. But the very quotation he uses demonstrates why we are in the right.

Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they donââ‚â„¢t know.

... Burkeââ‚â„¢s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to he gradual and discriminatory, never unfixing old interests at once.... In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any manââ‚â„¢s petty private rationality.

... Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. As John Randolph of Roanoke put it, Providence moves slowly, but the devil always hurries.

Bainbridge uses these quotations as evidence of why breaking the filibuster is both wrong politically and principally. And yet is not our insistence on maintaining two plus centuries of precedent the very definition of conservatism? It is the radical left that is breaking with tradition in utilizing the filibuster to require a supermajority to confirm judicial nominees.

Bainbridge then offers a profoundly political rationale for preserving the filibuster. Even though most conservatives would only do away with the judicial filibuster (yours truly excepted, I have no respect for any filibuster - it is an extraconstitutional mechanism that goes far beyong merely tempering democratic exuberance - it simple tramples majoritarianism, and as such is an extreme measure that goes too far), Bainbridge insists that it is quite probable that all filibusters could be eliminated.

Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don't have the filibuster then? Our slim majority in the House?)

My answer: so what? If the principle is wrong should we maintain it as a prudent political device because maybe, just maybe the Democrats will one day again control the Senate? Does Bainbridge, or anyone else for that matter, truly believe that the filibuster is the only thing keeping us away from the morass that is Hillarycare ? I seem to recall Democratic majorities in both Houses the last time that was tried, and it went nowhere in either place.

I completely sympathize with the conservative argument that the filibuster slows down the Senate's business, and there's nothing more a conservative appreciates than slow change. But the Framers didn't necessarily want the government to come to a complete standstill. The very reason the Framers established the Constitution was to provide a more efficient federal government than existed under the Articles of Confederation. The national government could do nothing under the Articles without the unanimous consent of all of the states. As a result, nothing was accomplished. The Framers remedied the situation by creating a Constitution that corrected the problems of the AoC while at the same time limiting the scope of the Federal government's powers, and also designing institutional mechanisms - the electoral college, a bicameral legislature, a Senate appointed through indirect election, separation of powers, etc. - meant to put the brakes on democracy. Quite frankly, if those mechanisms aren't enough, then there's just no point in fighting anymore.

Update: Gerard Bradley offers more thoughts on the Bainbridge piece on Bench Memos.

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Posted at 11:25am on May 24, 2005 NARAL heartened

By DanCT

Nancy Keenan, president of NARAL Pro-Choice America:

"[we are] heartened that the crisis has been averted and the right to filibuster preserved for upcoming Supreme Court nominations. We are confident that a Supreme Court nominee who won't even state a position on Roe v. Wade is the kind of 'extraordinary circumstance' this deal envisions."

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Posted at 10:10am on May 24, 2005 Beldar on the deal

By krempasky

Bill Dyer is far, far smarter than I - and he thinks the Republicans got completely snookered when you get into what the deal actually says. He's probably right as a matter of law - I'm not sure if he's on as solid ground when it comes to the politics. Deals in the Senate are as binding as the signatories want them to be (budget deals/resolutions, anyone?) - so if the moderate Republicans really were looking for a way to avoid a vote, perhaps he's right.

On the other hand, if those who participated (sans McCain, his ego is like Obi-Wan, just try and strike it down) want the opportunity to seem like elder statesmen and then get "forced" by the Democrats into voting later to drop the filibuster, well - that's just as plausible.

One thing's clear: this is a delay, not a final disposition.

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Posted at 10:04am on May 24, 2005 A "superduper" majority

By Zummo

If you're looking for a little humor today, look no further than Scrappleface. As always, Scott Ott nails it with the satire.

As part of the deal, three of President Bush's nominees will receive prompt votes on confirmation and two others will be "cast into the yawning mouth of an active volcano."

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Posted at 9:57am on May 24, 2005 The future of Bill Frist

By Zummo

If the US Senate were a parliamentary institution, Bill Frist would resign his post. Fortunately it is not, but that does not mean Bill First ought not resign the leadership.

Sorry for getting into the game so late, but you can find my thoughts on this terrible deal here if you so desire. I can't put it any better than so many of my co-bloggers, though I am perhaps a tinge less upset than some of them. Ultimately this will come down to the precise interpretation of "extraordinary" circumstances.

But the question we must ponder is what is the future of Bill Frist? Surely he has proven to be a rather ineffective leader as seven of his own Senators forged a deal right under his nose. He has assuredly cost himself any chance of the presidential nomination in 2008, much as McCain, but unlike McCain Frist still had a fighting chance entering the day.

Unfortunately the events come as no real surprise. Bill Frist has hardly been the energetic and effective leader that Tom DeLay - like him or not - has shown himself to be. Even if the Senate does not need another Tom DeLay, it could use someone who has the basic understanding of what it means to be in the majority.

I personally like Bill Frist. He seems to be a good man, and holds almost all of the same policy positions as I do. He is a solid conservative with excellent credentials. But he simply does not have the leadership qualities that the GOP needs in order for it to be an effective governing party.

As everything unfolds this ââ‚Å“dealââ‚? may not wind up being quite as bad as we anticipate. There will undeniably be a showdown once Rehnquist steps down, and it may undue everything that has transpired in the past day or so. But if that is the case, is Bill Frist the man to lead the Republicans into battle? Can we afford him another chance?

Magic 8 ball: the outlook isnââ‚â„¢t good.

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Posted at 2:50am on May 24, 2005 And If You Still Aren't Convinced It's a Terrible Deal...

By DanCT

...the statement from PFAW could not be clearer:

The explicit language of the agreement reached tonight by a group of senators rejects the nuclear option, preserves the filibuster and ensures that both political parties will have a say in who is appointed to our highest courts. The agreement embodies the very principle of consultation and consensus that the filibuster encourages. This is good news for the American people. Saving the Senateââ‚â„¢s constitutional advice and consent role, and the checks and balances that protect judicial independence, is especially important with multiple vacancies expected on the Supreme Court.

The unprincipled nuclear option has been averted. This is a major defeat for the radical right.

Hat tip: KJL at the Corner

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Posted at 2:44am on May 24, 2005 Exuberance on the Left; Disappointment on the Right

By DanCT

Harry Reid (D-NV): "This is really good news for every American tonight. ... Checks and balances have been protected, the integrity of the Supreme Court has been protected from the vocal influence of the radical right wing."

[Ahhh, yes. This deal may well protect the Supreme Court from the radical right wing judicial conservatives.]

Harry Reid (D-NV): "This is a day I've waited for for a long time....We've won anyway, because this is a victory for the American people. ... It's over with, and I feel so good."

Charles Schumer (D-NY): "We here in the Senate stepped right up the precipice, but we didn't fall in. ... Senators came together and came to an agreement that I think serves this body well."

And from the GOP?

Bill Frist (R-TN): "The agreement announced tonight falls short...it's a shame that well-qualified nominees are threatened still...There is no need, at present, for the 'constitutional option.' But with this agreement, all things remain on the table, including the 'constitutional option.'"

[Well, not really on the table, Mr. Frist, unless the 7 GOP moderates renege.]

Mitch McConnell notes that he wouldn't have made this agreement, but calls it "a good start [because votes will occur for three nominees]."

Scott McClellan: "Many of these nominees have waited for quite some time to have an up or down vote and now they are going to get one. That's progress. We will continue working to push for up-or-down votes for all the nominees."

Hat tip: ChargingRINO

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Posted at 2:20am on May 24, 2005 Dick Durbin (D-IL) Crows

By DanCT

"There is nothing more exhilarating than being shot at and missed"-- Richard Durbin, May 23, 2005

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Posted at 2:08am on May 24, 2005 What About the Other Nominees?

By DanCT

The fates of two of the other nominees are apparently decided: "Democratic officials said an unwritten aspect of the pact was that two nominees not named in the deal - Brett M. Kavanaugh and William J. Haynes - would not be confirmed and would be turned aside either at the committee level or on the floor. " (NY Times). With these two down, two others mentioned explicitly in the agreement likely going down, and three others already down in Bush's first term, it looks like 7 successfully blocked by filibuster, 3 allowed by an ever-so-gracious-and-humble minority party to be given votes.

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Posted at 2:02am on May 24, 2005 Barbara Boxer (D-CA) Crows

By DanCT

From the NY Times:

"After thanking him on the Capitol steps for the "wonderful" deal, Senator Barbara Boxer, Democrat of California, acknowledged that Democrats had cleared the way for possible confirmation of three judges many in the party opposed. But Ms. Boxer said that others had been held off and she described the agreement as a "big victory" for Democrats."

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Posted at 1:50am on May 24, 2005 <i>NY Times</i> Is Giddy

By DanCT

In an article entitled "Efforts of 2 Respected Elders Bring Senate Back From Brink" discussing the deal, Sheryl Gay Stolberg of the NY Times can hardly contain herself:

In the end, it was the language of the Constitution itself and two old bulls of the Senate - Robert C. Byrd and John W. Warner - that averted a grim showdown over federal judicial nominees that had threatened to wreak lasting damage on Capitol Hill.

After weeks of seemingly fruitless negotiations between the two sides, Mr. Byrd, 87, a West Virginia Democrat who has spent more than half a century in Congress, and Mr. Warner, 78, a Virginia Republican who regards himself as an "institutionalist," met privately twice on Thursday. They parsed the language of Alexander Hamilton's Federalist Paper No. 66 in an effort to divine what the founding fathers intended when they gave the Senate the power to advise and consent on nominees. After trading telephone calls over the weekend, they drafted three crucial paragraphs.

The agreement contends that the word "advice" in the paper "speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations." It goes on to state, "Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate."

People on each side of the fight over President Bush's judicial nominees say those lofty principles, articulated by the Senate elders, were instrumental in bringing together 14 senators - 7 Democrats and 7 Republicans - to do what the chamber's leaders could not: draft a compromise.

Amazing what things moderates can find in the emanations and penumbras of the Federalist Papers when they put their minds to it. Have they also stumbled onto a way to put like-minded folk on the Supreme Court?

Bonus points to anyone who can tell me how Federalist Papers #66 implies that the "advice and consent" clause of the Constitution is to apply to the nominations stage, rather than just the post-nomination appointments stage, as a clear reading of the words of the Constitution would indicate? Here is the section of #66 that pertains to the "advice and consent" clause:

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE. They can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

It sounds very much to me like the President nominates, and the Senate either confirms or rejects. When a nominee is rejected, the President sends over another one "and [the Senate] could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected." Sounds to me like the Senate offers "advice" by rejecting a nominee. The President then sends them another one--with no guarantee that they'll like the next one better. It doesn't come close to saying that the "advice" part should apply to the Senate informing the President whom they want see nominated. With hard searching in the emanations and penumbras, though, who knows what might pop up? On other hand, Federalist Papers #76--which deals more explicitly and in greater length about the "advice and consent" clause--discusses the rationale for leaving the power of nomination entirely in the hands of the executive: "one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment." [NOTE: I analyze this in greater detail in an earlier post.] The moderate 14 wouldn't want to read this one, though, because it would shed light on those emanations and penumbras from #66 and expose the 14's argument as fantasy.

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Posted at 11:22pm on May 23, 2005 Terrible Deal

By DanCT

Hugh Hewitt wonders:

It is impossible to say whether this is a "terrible" deal, a "bad" deal, or a very, very marginally "ok" deal, but it surely is not a good deal.

It's terrible, Hugh.

1. Democrats agree to allow votes on three nominees, but make no commitment on the others. [It's amazing how a minority of Senators is able to dictate terms to a fairly large majority.]

2. Democrats reserve the right to filibuster: "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."

3. Republicans give up any check on the minority's power: "...we commit to oppose the rules changes in the 109th Congress."

The commitment to oppose rules changes is unconditional. There is no out clause such as, "We commit, so long as Democrats are not abusing their discretion in our eyes. " Instead, it says, "We trust that the Democrats won't filibuster Luttig, McConnell, Estrada, Alito, or whomever is nominated to the Supreme Court unless they, in their own discretion, decide they want to. For our part, we put it in writing that we won't support any rules change because our trust in those Democrats is absolute. Trust but verify? Nah. That's mean. We just trust--period."

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Posted at 10:31pm on May 23, 2005 The Upside of the Deal

By krempasky

Much hand-wringing on all sides, in wake of the McCain for President Announcement compromise on judges. Many on both sides think they've lost.

This is a bad deal, no question. It undermines Senator Bill Frist, Senator McConnell - and frankly, the entire Senate leadership.

On the other hand - Democrats are surely screwed. They get their little scalps - Myers and Saad will not soon see the inside of an appellate court. But the Democrats have simply grabbed enough rope to hang themselves.

Why? Because they've defined extraordinary - if not specifically, by who they've "allowed" on the courts to date - and when Chief Justice William Rehnquist retires on June 27th of this year - all President Bush need to do is select one of the 30-some odd appellate juddges confirmed since he took office and elevate him/her to the Supreme Court. In that case, the Democrats have completely surrendered any opportunity to block such a nominee on any grounds.

Plus, it doesn't hurt that Nan Aron, Ralph Neas, Nadine Strossen, and the New York Times will be nursing some wicked headaches in the morning.

P.S. John McCain is dead to me.

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Posted at 10:22pm on May 23, 2005 14 Senators Signed

By AndrewHyman

Here is a corrected list of the signers.

Republicans: John McCain (AZ), John Warner (VA), Mike DeWine (OH), Susan Collins (ME), Olympia Snowe (ME), Lindsey Graham (SC), Lincoln Chafee (RI).

Democrats: Ken Salazar (CO), Ben Nelson (NE), Mary Landrieu (LA), Joseph Lieberman (CT), Mark Pryor (AR), Robert Byrd (WV) and Daniel Inouye (HI).

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Posted at 10:06pm on May 23, 2005 What counts?

By Irishlaw

I'm with Lorie on the "extraordinary circumstances" language -- the "discretion" thus far exercised by the filibustering senators hasn't inspired much confidence at all. But I wanted to highlight Dave's comment here, which offers good analysis: taking the three nominees now apparently not considered too extraordinary (Pryor, Owen, Brown), anyone else in their mold should also not be considered too extraordinary -- and if any such future nominees are filibustered, the rule change can then be exercised.

I'm not thrilled about this compromise but these three nominees are among the strongest. The fight isn't over (especially as we head into the summer with high court possibilities) but in the meantime, I will especially look forward to reading Judge Brown's opinions. (I recently had occasion to reread her dissent in Catholic Charities v. Superior Court -- sharp language, great analysis. Recommended reading.)

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Posted at 9:54pm on May 23, 2005 Senator Frist's Statement....

By AndrewHyman

is below the fold (hat tip to Katie Harbath).

WASHINGTON, D.C. ââ‚“ U.S. Senate Majority Leader Bill Frist, M.D. (R-TN) made the following statement this evening on the Senate floor:

Mr. President.

I have had the opportunity to review the agreement signed by the Senator from Virginia, the Senator from Arizona, the Senator from Nebraska, and eleven other Senators ââ‚” an agreement that Iââ‚â„¢ve reviewed but to which I am not a party.

Let me start by reminding the Senate of my principle.

A simple principle that Iââ‚â„¢ve come to this floor day after day stating. Itââ‚â„¢s really this, that I fundamentally believe that it is our constitutional responsibility to give judicial nominees the respect and the courtesy of an up or down vote on the floor of the United States Senate.

Investigate them. And question them. And scrutinize them. And debate them. In the best spirit of this body.

But then, vote. Up or down. Yes, or no. Confirm or reject. But each deserves a vote.

Unlike bills, nominees cannot be amended. They cannot be split apart. They cannot be horsetraded or logrolled. Our constitution does not allow for any of that.

It simply requires up or down votes on judicial nominees.

So, in that regard, this agreement announced tonight falls short of that principle. It falls short. It has some good news, and has some disappointing news, and will require careful monitoring.

Let me start with the good news. I am very pleased that each and every one of the judges identified in this announcement will receive the opportunity of that fair, up or down, vote.

Priscilla Owen: after four years, two weeks, and one day, a fair, up or down, vote.

William Pryor: after two years and 1 month, he will have a fair, up or down, vote.

Janice Rogers Brown: after 22 months, a fair, up or down, vote.

Three nominees will get up or down votes with certainty now because of this agreement. Whereas a couple of hours ago, maybe none would get up or down votes. And that would have been wrong. And, with the confirmation of Tom Griffith to the D.C. Circuit Court of Appeals, which weââ‚â„¢ve been assured of, though itââ‚â„¢s not part of this particular agreement, there will be four who will receive up or down votes. And based on past comments, on this floor, although not in the agreement, I expect that David McKeague, after three years and six months, will get a fair up or down vote. I expect that Susan Neilson, after three years and six months, will get a fair, up or down, vote. I expect that Richard Griffin, after two years and 11 months, will get a fair, up or down, vote.

Now, the bad news. It is a shame that well-qualified nominees identified by those twelve members are threatened still with not having the opportunity to have the merits of their nominations debated on the floor.

Henry Saad waited for three years for the same courtesy. He deserves a vote.

William Myers has waited for two years and one week for a fair, up or down vote. He deserves a vote.

If Owen, Pryor, and Brown can receive the courtesy and respect of a fair up or down vote, so can Myers and Saad.

So I will continue to work with everything in my power to see that these judicial nominees also receive that fair, up or down vote that they deserve. But it is not in this agreement.

But in this agreement is other good news.

It is significant that the signers give up using the filibuster as it was deployed in the last Congress, in the last two years.

The filibuster was abused in the last Congress. Ten nominees were blocked on 18 different filibuster occasions, 18 different filibusters in the last two years alone. With a leadership led minority party obstruction threatening filibusters on six others.

That was wrong.

It was not in keeping with our precedents over the past 214 years.

It made light of our responsibilities as U.S. Senators under the Constitution.

It was a miserable chapter in the history of the Senate and I believe brought us to a new low.

Fortunately, tonight, it is possible that this unfortunate chapter in history can close because this arrangement makes it much less likelyââ‚”indeed, nearly impossibleââ‚”for such mindless filibusters to erupt on this floor over the next 18 months. And for that I am thankful.

Circuit Court and Supreme Court nominees face a return to normalcy here in the Senate, where nominees are considered on their merits.

Their records are carefully examined.

They offer testimony, and are questioned by the Senate Judiciary Committee.

The Committee acts.

And then the Senate discharges its constitutional duty to vote, up or down, on a nominee.

So given this disarmament on the filibuster and the assurance of fair up or down votes on nominees, there is no need at present for the constitutional option.

But with this agreement, all options remain on the table ââ‚“ including the constitutional option. If it had been necessary to deploy the constitutional option, it would have been successful, and the Senate would have by rule returned to the precedent of the past 214 years. Instead, tonight, members have agreed that this precedent of up or down votes should be a norm of behavior as the result of mutual trust and goodwill in that agreement.

I of course will monitor this agreement carefully as we move ahead to fill the pending 46 vacancies on the Federal bench today, and other vacancies that may yet arise during this Congress.

I have made it clear from the outset that I havenââ‚â„¢t wanted to use the constitutional option, I do not want to use the constitutional option, but bad faith and return to bad behavior during my tenure as Majority Leader will bring the Senate back to the point where all 100 members will be asked to decide whether judicial nominees deserve a fair up or down vote.

And I will not hesitate to call all members to their duty if necessary.

But for now, as reflected in this agreement, I look forward to swift action on the identified nominations.

Now the full impact of this agreement will await its implementation. But I do believe that the good faith and good ought to guarantee a return to good behavior on the Senate floor.

And that when the gavel falls on the 109th Congress, the precedent of the last 214 years will once again govern: fair, up or down votes on the floor of the United States Senate.

Now this will be spun as a victory, I would assume, for everyone. Some will say this is a victory for our leadership. Some for the group of fourteen. I see it as a victory for the Senate, I honestly believe it is a victory for the Senate. Where members have put aside a party demand to block action on judicial nominees. They rose to principle. And then acted accordingly.

I am also gratified with how clearly the Democratic Leader has repeated, over and over again during this debate, how much he looks forward in working with us and I with him as we move forward on the agenda of the 109th Congress. Our relationship has been forged in part by circumstance, but leavened by friendship. I look forward to working with him as we move the nationââ‚â„¢s agenda forward together.

We have much to do, from addressing vital issues of national defense and homeland security, to reinforcing our energy independence and our role as a reliable and strong trading partner, to an orderly consideration of all the bills before us about funding and to put the deficit on the decline.

I look forward to working with the Democratic leader on these and many other issues of national importance.

Mr. President, a lot has been about the uniqueness of this body and indeed our Senate is unique, and we all as individuals and collectively as a body have a role to play in ensuring its cherished nature remains intact.

And indeed, as demonstrated by tonightââ‚â„¢s agreement and by the ultimate implementation of that agreement, we have done just that. It has withstood mighty tests that have torn other governments apart.

The genius is in its quiet voice, not the mighty thunder; the harmony of equality brings all to its workings with an equal stake at determining its future.

In all that the Senate has done in the last two years, I as leader, have attempted to discharge my task as steward of the institution consistent with my responsibilities not just as the Majority Leader, not just as Republican Leader, but also as the Senator from Tennessee.

In closing tonight Mr. President, with this agreement, the Senate begins the hard work of steering back to its better days, leaving behind some of its worst. While I would have liked my principle to have been fully validated, for this Congress, now, we have begun our labors for fairness and up or down votes on judicial nominees with a positive course.

And as all involved keep their word, it should be much smoother sailing.

I yield the floor.

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Posted at 9:33pm on May 23, 2005 Judge William H. Pryor Jr.

By feddie

As a long-time supporter of Judge Pryor, I am obviously pleased that he will finally be confirmed by the full Senate and receive the life-time appointment he so richly deserves.

Congratulations, Judge Pryor.

That having been said, like many of you, I think the deal stinks.

(cross-posted at Southern Appeal)

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Posted at 9:17pm on May 23, 2005 William Myers

By AndrewHyman

I would highly recommend that GOP leaders try to persuade William Myers not to back out. No signatory to this deal has given any indication that they support a continued filibuster of Myers.

So, the Senate can now go ahead and confirm Owen, Brown, and Pryor. They've all been reported out of committee, so confirm them. That's what this site is all about: "confirm them." Then let's see about William Myers. He's also been reported out of committee already, so there need be no long delays here.

Regarding Myers, Senator Specter has said, ââ‚Å“I think that William Myers would give some balance to the Ninth Circuit, and that is going to be one of the arguments I am going to make."

Myers has been endorsed by Jimmy Carter's Interior Secretary, for Pete's sake. If you want to read a glowing tribute to a nominee, just read this piece in which former Senator Alan Simpson endorsed Myers.

Myers represented mining and cattle interests in private practice. So what? I bet sitting U.S. Supreme Court Justices represented some murderers and rapists in private practice.

Bring on Myers.

UPDATE: It will be interesting to see whether Myers becomes the first judicial nominee in American history to be permanently denied an up-or-down vote though supported by a clear majority of the Senate.

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Posted at 9:06pm on May 23, 2005 Harry Reid (D-NV) Crows

By DanCT

Senator Reid reacts to this victory for radical left that gives the Senate an O.K. to break with the Constitution and 200+ years of Senate tradition:

We have sent President George Bush, Vice President Dick Cheney and the radical right of the Republican party an undeniable message ... the abuse of power will not be tolerated.

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Posted at 8:58pm on May 23, 2005 It Depends On What The Meaning Of "Extraordinary" Is

By Lorie Byrd

After reading the following portion of the "deal" I have a couple of questions below:

Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

How on earth do those who define Priscilla Owen and Janice Rogers Brown as "extreme" even begin to define "extraordinary"? And how can those senators engaging in the recent character assassination be said to possess any "discretion" or "judgment" whatsoever?

UPDATE: In the comments section, David points out that since it is up to the individual senators to determine what "extraordinary" is that the deal is not all that bad for Republicans.

That, combined with the fact that the determination of what are ââ‚Å“extraordinary circumstancesââ‚? is left to each individual signatory, opens the opportunity to be excused from voting against future rules changes.

In legalese, not filibustering other than in ââ‚Å“extradordinary circumstancesââ‚? is the ââ‚Å“considerationââ‚? for the agreement not to vote for future rules changes.

If Democrats filbuster in the future for other than ââ‚Å“extraordinary circumstancesââ‚? as determined by each Senator individually, that Senator is excused from his/her commitment not to vote for rules changes.

All in all, not a bad deal and, in my estimation, a well-lawyered memorandum of agreement.

I am not convinced of that. It will definitely be interesting to see how this plays out .

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Posted at 8:52pm on May 23, 2005 The Deal is Based on a Distortion of the Constitution

By AndrewHyman

Whatever else this deal may be, it is a gross distortion of the Constitution, by people who should know better. Here's the pertinent part of the deal:

We believe that, under Article II, Section 2, of the United States Constitution, the word ââ‚Å“Advice" speaks to consultation between the Senate and the President with regard to the use of the Presidentââ‚â„¢s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

You don't have to be a lawyer to know this is wrong. You just have to know how to read. Here's what the Constitution says:

[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court....

The advice comes after a person is nominated. It's clear as day. Once a person is nominated, then the Senate must not only passively consent to the appointment, but must also actively advise that the nominee be appointed. Every shred of evidence from the drafting of the Constitution emphatically supports this view that the word "advice" in this clause has nothing to do with what happens prior to a nomination. These signatories have just decided to summarily reject the intended meaning of the Constitution. Their "deal" is obviously intended as a threat --- if the President does not seek prior review of his nominees before they are nominated, then these signatories will allow filibusters in that "extraordinary" situation. This is unconstitutional blackmail.

UPDATE: I must admit that it is possible to look at the "We believe..." sentence (in the deal) as being completely independent of the "We encourage..." sentence. But, that's quite a stretch.

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Posted at 8:19pm on May 23, 2005 Capitulation, not compromise

By Quin

This deal is a load of cr@!` It is not compromise, but capitulation. And I say that as somebody who did agree that a certain form of compromise was acceptable. But this comrpomise treats a couple of nominees, Saad and Myers, as pawns. It makes them not people, but expendable objects. And that is unconscionable.

When BOTH of those men were nominated, years ago, there was no reason to believe they would be denied up-or-down votes. Their expectations, based on 214 years of history, were that they would be afforded up or down votes. I've seen, first-hand, the torment that judicial nominees go through. They don't deserve to be treated like expendable pawns. That's why ANY agreement that failed to afford fair votes for all the already pending nominees is not a compromise but a sell-out.

Now, if the deal had been fair votes for all pending nominees, PLUS filibusters only in "extraordinary circumstances" for FUTURE nominees, then anybody who is asked to have his/her name submitted would know in advance what he is getting into. Everybody would understand the rules going in, and, while not optimal (optimal is killing all filibusters), it would have been better than an attempt that fails (fail because of gutless GOP senators) to kill all filibusters. I should be rejoicing right now because Bill Pryor, the guy I've most championed, will get a fair vote. But my heart goes out to Saad and especially Myers -- Myers, because I see no way that he would fail to get 50 votes plus Cheney if he actually was afforded a fair chance.

All this talk about "preserving the Senate" is bunkum. Senators would have adjusted. Most senators have too high an opinion of their own legislative body anyway. The Senate NEEDS reform, not preservation in its current form.

Way back when, two years ago, before the Estrada filibuster began, I was an advocate of a three-way deal ON PROCEDURES, between the White House and the two parties in the Senate, to head off the filibuster and maintain the dignity of the institution of the Senate AND maintain fairness to nominees. The White House had no interest then in such a deal. Now I bet the White House folks wished they had listened.

But, having come to this point, the White House was absolutely in the right to demand up-or-down votes for all nominees. The Senators, ON BOTH SIDES, who fail to provide such a vote for pending nominees have sacrficed fairness (to Saad and Myers) for expedience and political advantage. I guarantee you there was horse-trading in there concerning pork and other matters. And I guarantee you that not a one of them gave a thought to the havoc they have wrecked on these nominees' lives. Shame on them all. Fie on them all. Disdain for them all.

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Posted at 8:11pm on May 23, 2005 Text of the Deal

By AndrewHyman

Hat tip to Bench Memos for this:

UPDATE: The signers are listed here.

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Posted at 7:28pm on May 23, 2005 Fox News Says Deal Reached

By AndrewHyman

Click here.

UPDATE: AP reports:

Deal Reached to Avert Judicial Showdown

Monday, May 23, 2005

WASHINGTON ââ‚” Centrists from both parties reached a compromise Monday night to avoid a showdown on President Bush's stalled judicial nominees and the Senate's own filibuster rules, officials from both parties said.

These officials, who spoke on condition of anonymity, said the agreement would clear the way for yes or no votes on some of Bush's nominees, but make no guarantee.

Under the agreement, Democrats would pledge not to filibuster any of Bush's future appeals court or Supreme Court nominees except in "extraordinary circumstances."

For their part, Republicans agreed not to support an attempt to strip Democrats of their right to block votes.

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Posted at 6:51pm on May 23, 2005 Reid's address this evening

By krempasky

Senate Majority Minority Leader Harry Reid will give the following address this evening, sponsored bought and paid for by the moderately liberal raging leftist Alliance for Justice.

Good evening.

I'm Harry Reid of Nevada, Democratic leader of the Senate, and I love our country very much.

But as I speak to you tonight a crisis is unfolding here in the Capitol that threatens some of our nation's founding principles.

This isn't hype. This is as real as it gets.

Unfortunately, some Senate Republicans are trying to give President Bush power no president has ever had -- the ability to personally hand out lifetime jobs to judges -- including the Supreme Court, without consensus from the other party.

This abuse of power is not what our founders intended. It's wrong for one political party -- be it Republicans today or Democrats tomorrow -- to have total control over who sits on our high courts and rules on our most basic rights.

The fact is Democrats have approved 208 out of President Bush's 218 nominees. That's right -- only 10 were stopped because their views were so outside the mainstream.

I believe that the great moderate majority of Americans don't want judges from either extreme. They want to preserve Constitutional checks and balances and protect the independence of our courts.

I know there are Republican Senators of courage and conviction who share this view. We will continue to reach out to them and pray they will do what's right.

Today, America faces many challenges...we should stand together and meet them - not abandon 200 years of Constitutional principles that have served us so well.

Thank you for listening and May God Bless America.

Yes, Harry - I'm sure you love the country. But that doens't give you a free pass to play games with numbers. Sure, you allowed lots of District Court judges through - but how does the record look for appellate nominees?

Fisk away.

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Posted at 4:34pm on May 23, 2005 Prelude to a Big Vote

By AndrewHyman

With a bust of the late Senator Thurmond (who famously filibustered civil rights legislation back when he was a Democrat) in the foreground, Senate facilities workers make up beds on Capitol Hill Monday, May 23, 2005, as the Senate prepares for an all-night floor debate over judicial filibusters. (AP Photo/Dennis Cook):

C-Span has live coverage, plus re-runs, here. Why watch Gilligan's Island when you can watch Senators drone on forever? :-)

IT APPEARS THAT THE CLOTURE VOTE ON JUDGE OWEN WILL BE AT NOON ON TUESDAY.

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Posted at 1:40pm on May 23, 2005 Dems Say They <i>Nearly</i> Have the Votes

By DanCT

Roll Call has the following gem:

... in Reidââ‚â„¢s corner, he needs to peel away six Republicans to preserve the minorityââ‚â„¢s right to filibuster judicial nominations. So far, just three GOP Senators ââ‚” Lincoln Chafee (R.I.), John McCain (Ariz.) and Olympia Snowe (Maine) ââ‚” have publicly opposed the maneuver.... In an interview with regional reporters from targeted states Friday, Reid said he had a private commitment from a fourth Republican to oppose the nuclear option but declined to name who that person was. He told the reporters that he had four GOP targets remaining, of which two will be needed to outflank Frist.

The remaining GOP targets are Warner, Specter, DeWine and Sen. Chuck Hagel (Neb.), according to aides and liberal activists.

Two questions:

1) Reid says he has a secret committment from someone outside this group. Is it Collins?

2) Will Frist be able to get three from this group?

My bets are that Specter, DeWine, and Hagel will vote with Frist.

Specter has called what the Democrats are doing a "constitutional revolution," and he is judiciary committee chair. On principle, he can't stand on the Democrats' side. On politics, he doesn't sabotage his own work as committee chair and go down in history as a coward who could have prevented a constitutional revolution but didn't.

DeWine isn't going to pull a Voinovich.

Hagel is thinking about 2008 primaries.

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Posted at 1:40pm on May 23, 2005 The President, the Chief Justice, and Cots in the Senate

By AndrewHyman

Laurie Kellman of Associated Press reports on a press conference by President Bush at which he discussed the filibuster debate; plus the Chief Justice visited the capitol physician today; plus cots have just been wheeled into the Senate for the all-nighter; plus Senate leaders continue debating; plus negotiators continue negotiating:

"People ought to have a fair hearing and they ought to get an up-or-down vote on the floor," Bush said at a White House news conference....

Chief Justice William Rehnquist was brought into the Capitol in a wheelchair for a brief visit to the office of the Capitol Physician, his presence a stark reminder of the stakes involved in the clash unfolding one floor above in the Capitol....

"The moment draws closer when all 100 United States senators must decide a basic question of principle, whether to restore the precedent of an up or down vote...or to enshrine a new tyranny of the minority into the Senate rules," said Majority Leader Bill Frist, R-Tenn. "You should not be able to come in here and change willy nilly a rule of the Senate," countered the Democratic leader, Sen. Harry Reid of Nevada....

"My job is to pick people who will interpret the Constitution, not use the bench from which to write laws," Bush said at the White House. "And I expect them to get an up or down vote, that's what I expect. And I think the American people expect that as well --- people ought to have a fair hearing and they ought to get an up-or-down vote on the floor...."

[C]ompromise efforts unfolded outside the presence of the two Senate leaders --- although Frist and Reid monitored the talks carefully....

In a sign of the all-night debate to come, custodians wheeled cots past tourists through an ornate Capitol corridor.

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Posted at 12:48pm on May 23, 2005 Frist's Floor Statements on Judicial Nominations

By Zummo

Here are Senator Frist's remarks today on the floor of the US Senate. (Hat tip to Katie Harbath)

Mr. President, over the last three days, for more than 25 hours, the Senate has debated a simple principle - whether qualified judicial nominees with the support of a majority of Senators deserve an up or down vote on the Senate floor.

A thorough debate is an important step in the judicial nominations process.

But debate should not be the final step.

Debate should culminate with a decision.

And the decision should be expressed through a fair up or down vote.

The Constitution grants the Senate the power to confirm or reject the Presidentââ‚â„¢s judicial nominees. In exercising this duty, the Senate traditionally has followed a careful and deliberate process with three key components:

1) We investigate,

2) We debate,

3) We decide.

We investigate by examining nominees in committee hearings and studying their background and qualifications.

We debate by publicly discussing the nominees in committee and on the floor.

And we decide through an up-or-down vote.

Investigate, debate, decide. That is how the Senate and the judicial nominations process operated for 214 years.

But in 2003, the Senate stopped short of a decision. A minority of Senators began blocking final votes on judicial nominations.

As a result, nominees have been left in limbo, courthouses sit empty, justice is delayed, political rhetoric has escalated and political civility has suffered.

It is time once again to decide. The moment draws closer when all 100 Senators must decide a basic question of principle ââ‚“ whether to restore the precedent of a fair up or down vote for judicial nominees on this floor or to enshrine a new tyranny of the minority into the Senate rules forever.

I favor fairness and an up or down vote.

The individual nominee now before the Senate is Priscilla Owen.

Justice Owen is a qualified, mainstream judicial nominee.

She is a sitting member of the Texas Supreme Court who has received the highest possible rating by the American Bar Association.

She has been reelected by 84% of the people in her home state.

More than four years ago, the President nominated her to be a judge on the U.S. Court of Appeals for the Fifth Circuit.

Since then, the Senate has thoroughly and exhaustively investigated and debated her nomination. A brief look at the record tells the story-

· The Judiciary Committee has held two hearings on her nomination, lasting more than 9 hours.

· During the hearings, Justice Owen answered more than 400 questions from Senators on the Committee.

· After the hearings, Justice Owen submitted 90 pages of responses to an additional 118 written questions.

· The Judiciary Committee has debated her an additional 5 hours before committee votes.

· And today marks the 20th day of Senate floor debate on Justice Owenââ‚â„¢s nomination, more debate than on all the sitting Supreme Court justices combined.

Yet, Justice Owen has not received one, single up or down vote on the Senate floor. Not one.

Four years of waiting, nine hours of committee hearings, more than 500 questions answered, another five hours of committee debate, and 20 days of floor debate - but not one up or down vote. Not one.

As Majority Leader, I have tried for two years to find a mutually agreeable solution that will resolve this issue without sacrificing the core principle of an up or down vote.

I have offered to guarantee up to 100 hours of debate for every judicial nominee, far more than has ever been necessary for any nominee in the past.

I have offered to guarantee that no nominee ever becomes unjustly stalled in the Judiciary Committee, as some colleagues have alleged occurred in previous Congresses. Thus far, these efforts have not been successful.

I remain hopeful that the Senate will restore the tradition of fair up-or-down votes without the need for procedural and parliamentary tactics.

Tomorrow, Senators have another opportunity to diffuse this controversy.

A cloture motion is pending before the Senate. If cloture is invoked, it will bring debate to an orderly close.

With cloture pending, 60 votes cast in the affirmative tomorrow would yield a fair, up or down vote on Justice Owen.

So, I look forward to the debate ahead. I look forward to hearing from my colleagues.

And I look forward to a decision by all 100 Senators on the nomination of Justice Owen, a decision expressed through a vote.

A vote to confirm or to reject. A vote up or down.

The American people expect us to act, not just debate. They expect results, not just rhetoric.

We may not agree on every judicial nominee. But we can agree on the principle that every qualified judicial nominee deserves an up-or-down vote.

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Posted at 11:55am on May 23, 2005 Is anyone paying attention?

By Zummo

Via the Corner, Kathryn Jean Lopez links to this Christian Science Monitor article that questions whether the public at large is paying attention to the judicial filibuster showdown.

As the Senate heads toward an expected Tuesday vote on barring judicial filibusters, and the fight over judicial nominees grows nastier, the answer to which party is winning the battle for public opinion may be "neither."

Americans think "there's no direct relationship to their lives, and they have other things to be concerned about," says Larry Sabato, director of the center for politics at the University of Virginia in Charlottesville. "They see it as typical politicians fighting in the sandbox while Rome is burning."

The article continues, observing that though public opinion polls show a slight majority seeming to back the Democratic position, in the long-run the public could punish the Democrats for their obstructionism.

"You get close enough to Washington and you can smell the stink," says Nick Zeger, a young pharmacy technician who voted for Bush, outside a Nashville grocery store. "I'm disgusted with the Republicans in the fact that it's come to this, but I'm more disgusted with the Democrats for refusing to work with them.'' And if he had to blame anyone for the impasse? "It would be the American people - because we're the voters and we chose these clown acts to go to Washington."

Frankly I am not surprised to hear that the public is not overly concerned with this issue. To the average person, this seems like more of a procedural fight that unduly (in their eyes) takes attention away from more pressing matters. And to the degree that the public doesn't really care, I think that it should assuage the fears of those who think that Republicans will face a backlash should they go through with the nuclear/constitutional/Byrd/poppycock option. I have argued before that the Republicans didn't even experience a backlash for more public controversies, such as the 1995 government shutdown and the impeachment. If the mass public didn't repudiate the GOP over those matters, what makes people believe that the voters are going to do so now when the issue is one that they are less concerned about?

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Posted at 11:19am on May 23, 2005 What Do Iowa Caucuses Look Like for GOP Supporters of Filibusters?

By DanCT

The Des Moines Register reports:

A powerful group of leading state Republicans and social conservatives sent a letter last week to "potential presidential candidates" telling them, in effect, that any GOP senator with presidential aspirations who doesn't support ending judicial filibusters will face consequences in the 2008 caucuses....

While McCain could bypass the caucuses in 2008, just as he did in 2000, it's not clear Hagel, a relative unknown from a neighboring state, could afford to do so. Almost any strategy for Hagel would require him to do well in the leadoff contest in his home region before the race moved to New Hampshire and South Carolina.

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Posted at 7:06am on May 23, 2005 Some Monday Morning Filibuster News and Opinion

By AndrewHyman

Again, as you might expect, thereââ‚â„¢s a huge amount of news and commentary today regarding the filibuster situation. So, Iââ‚â„¢ll just mention a few of the items that strike me as most significant.

The Washington Post has this report regarding whether or not Senate leaders will ask for party-line voting on filibuster matters this week:

Eric Ueland, his chief of staff, said the leader "has not made this a test of party loyalty," nor has he offered legislative or campaign favors to keep wavering Republicans in line. "There are times and places where those tools might be appropriate," Ueland said. "But on an issue that so directly goes to the core responsibilities of the United States Senate, none of those tools are appropriately applicable."....

Warner, Collins and Specter said they have not been threatened, and Ueland said of the idea, "Not only has it not happened, it's a completely silly idea hatched by the same conspiracists" who believe in UFOs.

Strangely, this story in the Post does not discuss whether or not the Democratic leaders will likewise release members from party-line voting. As Senator Specter has pointed out in his May 20 speech on the Senate floor:

Senator Reid did not make any reference to my urging him to have the Democrats reject the party-line straitjacket voting on filibustering.

It would indeed be unfortuanate if Senator Reid insists upon party-line voting on cloture, while Senator Frist does not. Whatever happens, people like Michael Ackley will hopefully continue to find humor in it:

Last week provided us the highly diverting spectacle of members of "the greatest deliberative body in the world" lying about judicial nominees and the filibuster. These lies included sins of commission and sins of omission, bald misstatements of fact, quotes egregiously out of context, and calculated misinterpretations. It was a veritable carnival of mendacity, made all the more entertaining by the participants' sober demeanor.

Seriously, Ackley goes on to argue for real 24/7 filibusters. Turning now to the Washington Times, that newspaper reports as follows about what some Senators have been saying over the weekend:

"I just think that it is not that big of a deal for senators to exercise their constitutional responsibility," Mr. Allen said on ABC's "This Week." "I think that we'll get the constitutional option done, and we'll vote on judges."

Also yesterday, Senate Majority Whip Mitch McConnell, Kentucky Republican, answered "yes" when asked on CBS' "Face the Nation" whether his party "has the votes to overturn this Senate rule."

....

"We're talking about changing the rules of the Senate with 51 votes, which has never happened in the history of the United States Senate," Mr. McCain said.

Actually, Senator McCain is mistaken, according to MSNBC, which reports that a 51-42 rule change vote occurred on Feb. 20, 1975. There is a long tradition of such votes. No historian disputes that the Senate's very first rules were adopted by simple majority vote, and for many years those rules explicitly prevented rule-changes from being filibustered (i.e. any Senator could make a motion for the "previous question"). Senator McCain is just mistaken.

Michael Barone notes the following:

[O]nly 14 years ago, when the nomination of Clarence Thomas was before the Senate, no Democratic senator gave serious consideration to a filibuster, though there were enough senators opposed to Thomas to uphold one. Evidently, every senator then considered a filibuster unthinkable. Today, the unthinkable is a time-honored tradition.

Robert Novak reports that Senate Democrats are actually pleading with the GOP to "TRUST" the Dems not to abuse the filibuster:

Sen. Mark Pryor, a first-term moderate Democrat from Arkansas, has led these informal negotiations. I asked him how to get by the Supreme Court stumbling block. "Trust," he replied. "We have to try to learn to trust each other." But would Republicans trust Democrats not to filibuster George W. Bush's Supreme Court nominees without a written guarantee? Not to filibuster Antonin Scalia for chief justice? Not to filibuster Miguel Estrada for associate justice?

The Detroit Free Press has an article about one of the nominees, Judge Henry Saad. The article discusses, among other things, Senator Reid's vague statement about Saad's FBI file, and quotes Sean Rushton about that incident:

It is McCarthyite to wave around a piece of paper ... that no one else can see ... and insinuate that it contains damaging information.

And, the LA Times has the latest on compromise negotiations:

The group is discussing a draft agreement under which Democrats would pledge not to use the filibuster in the future except under "extraordinary circumstances." In return, Republicans would pledge not to vote in favor of changing the filibuster rule, unless at some point they thought the Democrats had violated the spirit of the agreement.

Under the draft plan, five of seven Bush nominees to the federal appellate courts would be given up-or-down confirmation votes....

Graham predicted that of the judges in dispute, "at least one would be rejected" by a bipartisan majority [on the floor]. He declined to name that nominee.

So, the compromisers still feel like they want to deprive the Senate the opportunity to vote up or down on at least one majority-supported nominee. That would be a horrible precedent, and is exactly the precedent that the GOP has been trying for two years to prevent. It would change 215 years of tradition, and would directly contradict the Framers of the Constitution.

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Posted at 2:30pm on May 22, 2005 Sunday TV Gabfest

By AndrewHyman

Mark Kilmer has again heroically sat through the major Sunday talk shows, and I excerpt the parts of his summary that are related to filibusters, below the fold.

JOHN MCCAIN ON FOX NEWS SUNDAY. Speaking of the magic compromise language on which he is working for the Senate, John McCain exclaimed: "It's tough." He said that the President's judges deserve up-or-down votes, and the deal on which he's working would not throw some out and accept others. He clarified that most would be guaranteed floor votes, and the Dems would decide whether to filibuster the others on a case-by-case basis. (This means, of course, that his deal would sink some nominees.)

MCCONNELL AND DURBIN ON FTN. The Senate whips, Mitch McConnell for the majority and Dick Durbin for the minority, were host Bob Schieffer's guests on CBS's Face the Nation.

McConnell would not at first answer Schieffer's question regarding whether or not he had the votes to modify the Senate rules to allow debate on judicial nominees to end with a vote of the majority of Senators. Instead, he explained that for 214 years, nominees with a majority support in the Senate have been confirmed. But the cloture vote will take place Tuesday morning, he said. Asked again if Frist had the votes, McConnell replied: "I believe he'll have the votes." (It's evidently not wrapped up quite yet.)

Durbin alleged that the Republicans were bringing in Dick Cheney for the vote because they knew it would be historic when they "break the rules to change the rules." (Most rule changes are agreed to with 67 votes.) He stipulated that the Constitution tacitly provides for the filibuster of judicial nominees and acknowledged that the moderates could work something out at the last minute: "There's always a chance" for compromise. He referred to the filibuster of judicial nominees as an "important Constitutional tradition." (Is it found in the emanations of the penumbra of the preamble?)

McConnell insisted that Durbin was confusing the possible with the practical. While it has always been theoretically possible to filibuster judicial nominees, it had never been done "until the last Congress." One out of three of the President's appellate court nominees have been filibustered, he said: "The worst record since World War II."

He said that the GOP would not postpone the vote if the moderates said that a deal was imminent. He insisted on "getting back to the business of the Senate," citing energy bills and whatnot.

Durbin said that he had offered McConnell votes on four of the disputed nominees, but the Senator had turned him down. (This was hypocrisy on Durbin's part. If the judges were so bad as to be a dangerous if they sat on the courts, why allow them to be confirmed when otherwise they'd filibuster?)

Durbin said that "the Democrats will not shut the government down." He insisted that they would merely follow the rules. And he noted that "we're going to push an agenda the Republicans don't want to talk about." He listed a few things he might have taken from Teddy Kennedy's crib notes.

GEORGE ALLEN AND JOE LIEBERMAN ON THIS WEEK. Host George Stephanopoulos wanted to know if Senator Allen were worried that the filibuster fight would cost the GOP "seats." Allen explained that real people in the real world don't care much about process, that they think judges deserve an up-or-down vote.

Lieberman said that people wanted them to do health care and energy, etc. He said that the 60-vote requirement for judges "forces the Senate to be more moderate." As if this were a positive thing. He had once disagreed with the filibuster, but he now supports it because the issue is different. It's not majority versus minority thing to him; rather, he's concerned about "extremists on both sides of the aisle."

Allen countered that the Constitution had not changed since Lieberman opposed filibusters. He pointed out that if 60 votes had been required to confirm judges, Thurgood Marshall would not have been confirmed to the U.S. Court of Appeals for the Second Circuit.

Lieberman used the canard that Bush has been more successful than was Clinton with judges.

Allen said that he did not know how his fellow Virginia Senator John Warner would vote, but he expressed certainty that "if the Democrats continue to obstruct," they'll have the votes. With or without Warner.

Lieberman said that "moderates, centrists, mavericks, independents" -- six or seven from each party -- are working on a compromise. He called this "historic." But the "Gang of Twelve," according to Lieberman's count, might really be the Gang of Thirteen or Fourteen

The aim, he said, is to get the Republicans to say that they "won't go to the nuclear option in this Congress." [emphasis mine]

Lieberman spoke of the historic nature of the moderates coming to a consensus and saving the day and how it would give birth to a new dynamic. He said he's optimistic that the compromise will prevail.

Allen said that while he agrees with Lieberman "on a lot of issues," he will not settle for casting some of the President's nominees aside "like a slip of paper." He thinks that "we'll get this Constitutional option done."

BEN NELSON AND LINDSEY GRAHAM ON LATE EDITION. Ben Nelson (D-Nebraska) and Lindsey Graham (R-South Carolina), both dubbed moderates by Blitzer, were on to talk about their compromise proposal.

Graham said that the threat is "institutionalizing reprisal filibusters," bringing politics to the table on judicial nominees. It will cost us good judges.

Nelson spoke of the "rights of the minority to see to it that you don't have a runaway majority." What's at stake, he argued, is the energy bill and suchlike. He doesn't "know if we're going to be able to get it done or not." He wants "up-or-down votes on as many nominees as possible," allowing for "exceptional circumstances," or judges that make a Senator's skin crawl.

Graham said that one of the eight judicial nominees "would be rejected by the Senate in a bipartisan manner." He wouldn't give the name. He said that he is a YES vote for the rule change if it comes to that, but he does not want to "destroy the judiciary" with "political payback with judges."

Graham said that "there are a couple of YES votes" looking for a compromise.

The term "Group of 12." Six Dems, Six Republicans, six on either side would tilt the balance.

Nelson: "When you have twelve Senators in the room, you have at least fourteen opinions."

Nelson thinks that if a compromise is reached, it will lead to greater harmony in the Senate on other issues. He wants to "find a solution, not just save the fight for another day."

Blitzer showed a poll giving Congress a 33% approval rating and suggested that, because the GOP controls both houses of Congress, this could harm the Republican Party.

Graham said that it affects Democrats as well.

Graham said that "this all started with Bork twenty-years-ago." He accused Bill Frist of "letting this go for over a year."

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Posted at 11:23am on May 22, 2005 The Future of Byrd/Warner Compromise

By DanCT

Although discussions about the compromise proposals between the administration and Senators are secret, bits and pieces do get reported. Says the LA Times:

One example came late last week during compromise negotiations among a dozen senators from both parties. When Sen. Robert C. Byrd (D-W.Va.) proposed greater consultation between the White House and the Senate before judicial nominations are made, the White House quashed that notion, a Republican congressional staffer with knowledge of the discussions said.

Will Senators continue to try press the issue onto the executive branch or will they keep it framed as an issue of how the Senate fulfills its end of the appointments process? Even the group of moderates see (or would eventually see) the difficulty and problem with treading into the Presidential prerogative of nominations. The Byrd/Warner compromise can go nowhere unless the moderate Senators force themselves onto the President in a very public way. Will they? No way. Not unless they want to increase the tension and escalate the battle. That's not going to happen. They are moderates, after all, and the defining characteristic of moderates is that they'd rather smooth over differences between competing parties than escalate the conflict by bringing a new, powerful player into the fray. "Calm, calm, keep everything calm. Back slowly away from the President. Keep the battle confined to the Senate."

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Posted at 9:16am on May 22, 2005 Some Sunday Morning Filibuster News and Opinion

By AndrewHyman

As you might expect, there's a huge amount of news and commentary today regarding the filibuster situation. So, I'll just mention a few of the items that strike me as most significant.

The Washington Times takes a fascinating look at the appellate confirmation rates of presidents only during periods of time when the same party had the Senate majority. These are some amazing numbers:

[A]ppellate-court-nomination success rates achieved by presidents for the first Senate controlled by their party following the president's election and re-election: Mr. Carter (100 percent); Mr. Reagan (95 percent, 100 percent); Mr. Clinton (100 percent, de facto); G.W. Bush (52.9 percent).

In the same newspaper, Robert Hardaway of the University of Denver pinpoints one major cause of the recent filibuster ruckus: the decision in 1964 to allow Senators to filibuster without holding the floor.

Newsweek has a pretty interesting profile of Priscilla Owen. No, Newsweek doesn't say that she desecrated the Qu'ran, but the magazine does present this misleading information:

In one frequently cited case, Owen ruled against a woman who'd been raped by a door-to-door vacuum salesman. She said that the company should not be held liable for failing to conduct a background checkââ‚”even though it would have uncovered the salesman's record as a sex offender.

This is really not accurate. The case involved Dena Read, a woman raped in her home by a Kirby vacuum salesman. There were two companies involved, and Owen only said that one of the two companies was liable. The salesman worked not for Kirby, but for a distributor. Kirbyââ‚â„¢s contract with the distributor specified that Kirby had no control over whom its distributors hired as salesmen. Thus, Justice Owen joined a dissent that said, ââ‚Å“No one questions that under these rules, [the distributor] is liable to [the victim] for failing to use reasonable care in selecting [the rapist salesman] as a competent dealer, as the jury found." Patterico discusses this case further. The Newsweek profile also mentions that, according to Justice Owen's pastor, she has a strong belief in the separation of religion and politics, and was "appalled" at the "Justice Sunday" event.

The LA Times has an interesting story today about how President Bush is trying to stay out of the Senate's internal business, even though the White House is very concerned about the matter.

Turning now to the two Nebraska Senators, Chuck Hagel says, "I don't know how I would vote." And, here's some info about Senator Nelson:

Nelson said he's prepared to vote for cloture to reach an up-or-down vote on nearly all of President Bush's blocked nominees. Only in one case could he not support cloture and end a filibuster, he said, and that's because he was denied the opportunity to see the background file on that nominee...[H]e declined to say if he would support the "nuclear option" if a compromise fails.

By the way, Patterico has some interesting comments about the strange attitude of the New York Times (the Times suggests that it's okay for Byrd to compare Republicans to Nazis, but not okay for Santorum to compare Democrats to Nazis).

And, that about does it for our Sunday morning filibuster news update, for now.

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Posted at 10:02pm on May 21, 2005 Fred Thompson, Paul Laxalt and Other Former Senators Weigh In

By AndrewHyman

Former Senators Fred Thompson, Paul Laxalt, Slade Gorton, Zell Miller, and James Buckley have written the following to the Senate leadership:

The constitutional option is not the ideal way of guaranteeing that the president's judicial nominees receive the votes they deserve. However, barring the minority's willingness to restore 214 years of precedent and tradition, it is a far better option than allowing the minority to hijack the chamber and deny the Senate the opportunity to fulfill its constitutional obligations.

Another group of former Senators said basically the same thing in a press conference televised recently on C-Span, including Dan Coates, Peter Fitzgerald, Rod Grams, and Tim Hutchinson. That press conference can be accessed via C-Span, which also has tons of other resources on this issue.

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Posted at 9:04pm on May 21, 2005 AP-Ipsos Poll

By AndrewHyman

A new Associated Press-Ipsos poll shows that 43% of people believe judicial decisions are based mostly on the judges' personal beliefs and political opinions, while 51% believe those decisions are based upon the law. Other poll results are below the fold.

UPDATE: Matthew J. Franck comments at Bench Memos.

1. Generally speaking, do you think that federal judges in this country are too conservative, too liberal or about right?

Too conservative, 24 percent

Too liberal, 30 percent

About right, 37 percent

Not sure, 9 percent

2. Would you like the federal judges nominated by President Bush to have political views that are...

Very conservative, 13 percent

Somewhat conservative, 34 percent

Somewhat liberal, 29 percent

Very liberal, 11 percent

Moderate, middle of the road (volunteered), 6 percent

Not sure, 7 percent

Total Conservative ââ‚” 47 percent

Total Liberal ââ‚” 39 percent

(Results to question 3 from November AP-Ipsos poll in parentheses)

3. In President Bush's second term, he may have the opportunity to appoint several new justices to the U.S. (United States) Supreme Court. How comfortable are you that George W. Bush would nominate the right kind of justices to the Supreme Court?

Very comfortable, 29 percent (37)

Somewhat comfortable, 23 percent (22)

Not too comfortable, 14 percent (12)

Not at all comfortable, 32 percent (29)

TOTAL COMFORTABLE, 52 percent (59)

TOTAL NOT COMFORTABLE, 46 percent (41)

4. As you may know, the president nominates federal judges, but the appointments must be approved by the U.S. Senate. Do you think the Senate should...

Give the president's judicial nominees the benefit of the doubt and approve them without a lot of scrutiny, 18 percent

Take an assertive role in examining each nominee, 78 percent

Not sure, 4 percent

5. Do you think judges usually base their decisions...

Mostly on their interpretation of the law, 51 percent

Mostly on their personal beliefs and political opinions, 43 percent

Not sure, 6 percent

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Posted at 7:29pm on May 21, 2005 Myth Busting (redux)

By DanCT

Fact: The 45 Democratic Senators (including Jeffords) represent states with total population of 147,825,268, which exceeds the population of 138,026,809 represented by the 55 Republican Senators. (There was an error in my original calculation, and I apologize for any confusion this may have caused.) The calculations are below the fold.

Question: This "representation" issue is often cited as though it had some significance. Does it? Not according to our prior post.

Andrew Adds: The NY Times mentions the following in tomorrow's paper:

"A simple majority in the current Senate doesn't represent a majority of the United States..." Professor Gerhardt said.

That's dead wrong, if Vice President Cheney votes.

The calculation of how many people each party represents in the Senate is based on year 2000 census figures.

Working from the premise that Senators represent the people of the state as a whole, rather than only people in their own parties and that the states with split delegations have split representation, the calculation is as follows:

State       Population      GOP       Dem

Alabama       4447100   4447100         0

Alaska         626932    626932         0

Arizona       5130632   5130632         0

Arkansas      2673400         0   2673400

California   33871640         0  33871640

Colorado      4301261   2150630   2150630

Connecticut   3405565         0   3405565

Delaware       783600         0    783600

Florida      15982378   7991189   7991189

Georgia       8186453   8186453         0

Hawaii        1211537         0   1211537

Idaho         1293953   1293953         0

Illinois     12419293         0  12419293

Indiana       6080485   3040243   3040243

Iowa          2926324   1463162   1463162

Kansas        2688418   2688418         0

Kentucky      4041769   4041769         0

Louisiana     4468976   2234488   2234488

Maine         1274923   1274923         0

Maryland      5296486         0   5296486

Massachusetts 6349097         0   6349097

Michigan      14938444         0   14938444

Minnesota     4919479   2459740  2459740

Mississippi   2844658   2844658         0

Missouri      5595211   5595211         0

Montana        904433    452216    452216

Nebraska      1711263    855632    855632

Nevada        1998257    999128    999128

NewHampshire  1235786   1235786         0

NewJersey     8414350         0   8414350

NewMexico     1819046    909523    909523

NewYork      18976457         0  18976457

NorthCarolina 8049313   8049313         0

NorthDakota    642200         0    642200

Ohio         11353140  11353140         0

Oklahoma      3450654   3450654         0

Oregon        3421399   1710699   1710699

Pennsylvania1 2281054  12281054         0

RhodeIsland   1048319    524160    524160

SouthCarolina 4012012   4012012         0

SouthDakota    754844    377422    377422

Tennessee     5689283   5689283         0

Texas        20851820  20851820         0

Utah          2233169   2233169         0

Vermont        608827         0    608827

Virginia      7078515   7078515         0

Washington    5894121         0   5894121

WestVirginia  1808344         0   1808344

Wisconsin     5363675         0   5363675

Wyoming        493782    493782         0

Total       285852077 138026809	147825268

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Posted at 7:17pm on May 21, 2005 "Bill Frist Has the Votes"

By AndrewHyman

David Brooks, writing in the New York Times:

The minority leader, Harry Reid, told a small group of us Friday he was cautiously optimistic that he had the votes to defeat the nuclear option, but I think he's wrong. John McCain, Lincoln Chafee, John Warner and maybe Susan Collins and Olympia Snowe will vote against the nuclear option, but none of the other Republicans are likely to. Bill Frist has the votes.

So says Brooks.

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Posted at 5:13pm on May 21, 2005 More on the Warner-Byrd Draft Compromise

By AndrewHyman

The Washington Times has some more details about what Senators Warner and Byrd are suggesting:

Sen. John W. Warner, Virginia Republican, and Sen. Robert C. Byrd, West Virginia Democrat, are among those looking for a compromise and made a proposal that was offered as legislation in an earlier Congress by Mr. Specter.

Under the proposal, a bipartisan group in the Senate "would establish a pool of men and women to be considered for any vacancy on the Supreme Court," according to a press release yesterday. "The committee would submit this group of names to the president. The president could select from that list, if he chooses, or pick someone completely different."

If this compromise entails up-or-down votes for all of the pending majority-supported nominees, then it may be a decent compromise, provided there is no suggestion that the "list" would amount to "advice" within the meaning of the Constitution. The Constitution is very clear that "advice and consent" refers to advice given after a nomination is submitted to the Senate.

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Posted at 4:47pm on May 21, 2005 Populations Represented by Senators

By AndrewHyman

Due to a technical glitch, our post regarding population is out of action, at least for the time being. For more on this subject, please see our previous post here. Apologies for the inconvenience.

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Posted at 11:58am on May 21, 2005 The Schedule

By DanCT

Katherine Jean Lopez posted the Senate's filibuster-related schedule at Bench Memos. To summarize:

* Cloture motion filed: Friday, 5/20

* Vote to request Senators to attend the session: Monday, 5/23

* Roll call vote on cloture petition: Tuesday, 5/24

Other procedural role call votes are possible on Monday and Tuesday. Stayed tuned...

Andrew adds: How Appealing has lots of links to today's filibuster news and opinion.

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Posted at 11:46am on May 21, 2005 Would GOP Confirm a Lefty, Out-of-the-Mainstream Nominee?

By DanCT

Edward Whelan at NRO raises an interesting question---

Can you guess the nominee's name and fate in Senate confirmation hearings given the nominee's expressed beliefs in the following?

1. a constitutional right to prostitution and polygamy;

2. eliminating Mother's and Father's days and replacing them with a gender-neutral "Parent's Day";

3. sexually integrated prisons on the theory that male prisoners needed to practice dealing with females for when they got out;

4. the notion that Boy Scouts and Girl Scouts are damaging because they perpetuate sterotyped sex roles;

5. court-ordered enforcement of racial quotas to correct racial imbalances in the work place, even when there is no evidence of discrimination;

6. despite the flowery non-discrimination language, the nominee selected not a single black employee in her 50 hires even though her office was in a majority black neighborhood.

Not only was Ruth Bader Ginsberg not filibustered --- she was promptly confirmed 96-3, despite her being far to the left of the majority of the Senate and the American people. She was not filibustered because the Republicans understood that it is largely the prerogative of the President to fill the courts with quality people. The Senate's role is to provide a check on corruption and cronyism, and not to impose ideological filters on the nominees. In addition, because Republicans were then in the minority in the Senate, they would not have had majority support to justify blocking her. She was competent, qualified, and ethically clean, so the Republicans plugged their noses and voted to confirm.

We've come a long way since then...

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Posted at 3:56am on May 21, 2005 The Warner/Byrd Escalation

By DanCT

As Andrew pointed out in a previous post, the New York Times has reported that Senators Warner (R-VA) and Byrd (D-WV) are discussing a plan to formally present to the President lists of acceptible nominees from which he should choose. The idea is to:

"bring into focus the importance of the word advice in the Advice and Consent clauseââ‚? of the Constitution as part of a broader agreement ââ‚Å“that will permit the Senate to move forward this Congress with its important business, while establishing a workable blueprint for the Senateââ‚â„¢s present and future consideration of judicial nominees.ââ‚?

If this account is accurate (and it may not be --- the Virginian-Pilot has a somewhat different spin), it would represent a substantial escalation in the battle over judicial nominees.

I am sending Mr. Warner the following letter to nudge him to think more carefully about his plan:

Hon. Senator Warner,

The New York Times reported rumors that you are working with Senator Byrd on a "plan to designate for the President a pool of qualified judicial candidates who might win confirmation more easily." I hope you will prove the rumors false. Such a plan would be worse than the current filibustering in every way.

1. The Democrats have been filibustering nominees precisely because they want the power to directly involve themselves in the President's Constitutional prerogative to nominate whomever he sees fit. Presenting lists to the President to choose nominees from would institutionalize that very power for them without them even having to pay a political price of obstruction. A plan to present a list of nominees to the President amounts to surrender in the minority party's attempt at a "constitutional revolution" (in the words of your esteemed colleague, Senator Arlen Specter). To concede this critical point would result in a worse situation than currently exists.

2. Injecting the Senate into the nominations phase (rather than restricting it to its historical and explicit constitutional role of offering "advice and consent" only AFTER the President has submitted nominations) would futher politicize the appointment process by injecting the politics into the process at an ealier stage.

3. Although there is some debate about whether the filibustering of nominees is unconstitutional, most would agree that it is not. However, for the Senate to inject itself into the nomination stage would be blatantly unconstitutional because the clear language of the Constitution restricts the Senate's role to the confirmation process as opposed to the nomination process: The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges." Constitutional scholars are nearly unaminous on that point.

4. The idea of the Senate creating a list of compromise candidates for the President to choose from was considered and rejected by the founders when they wrote the advice and consent clause --and for good reason. In Federalist Papers (76) Hamilton wrote at some length about the rationale for excluding the Senate from the nominations process: "I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. ...A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body." The "advice and consent" clause purposely restricts the Senate's role to post-nomination deliberations because compromise candidates tend to be mediocre. They achieve their "inoffensive" status through their hesitation to make clear decisions that might offend, even when the facts and the law dictate a clear decision that is bound to irk the losing party.

5. This radical, extra-constitutional change in the nominations process would be a direct attack on the office of the President. The administration would be right to step in and forcefully defend the constitution and the Presidency. The administration has played a quiet, restrained role in the filibuster debate thus far. However, given Mr. Bush's deep respect for the Office, I do not believe that he would idly watch the filibuster dispute escalate into a direct assault on the constitutional powers invested in the Presidency. The political storms currently surrounding the filibuster issue would pale in comparison to what will happen should you and other GOP Senators give serious consideration to Senators Byrd and Schumer's idea.

Senator Warner, I respectfully urge you not to escalate the political battle over nominations by encroaching on the constitutional power of the President to present nominations of his own choosing to the Senate. I also urge you not to abrogate your and the Senate's responsibility to offer advice and consent after nominations are submitted and urge you to vote to disallow the minority party to block appointments simply by refusing to allow the Senate to exercise its rightful power to consent.

Sincerely,

Dan Dalthorp

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Posted at 11:28pm on May 20, 2005 John Warner of Virginia on Judicial Nominations

By AndrewHyman

The New York Times reports that Senator Warner is seeking to give the President formal "advice" about who to nominate:

Senator John W. Warner, Republican of Virginia and a Senate elder, is working with Senator Robert C. Byrd, Democrat of West Virginia and the longest-serving member of the chamber, on a plan to designate for the president a pool of qualified judicial candidates who might win confirmation more easily.

Mr. Warner said in a statement Friday that "Senator Byrd and I are attempting to bring into focus the importance of the word advice in the Advice and Consent clause" of the Constitution as part of a broader agreement "that will permit the Senate to move forward this Congress with its important business, while establishing a workable blueprint for the Senate's present and future consideration of judicial nominees."

This does not seem like the best approach. Almost all constitutional scholars agree that the word "advice" in the Constitution only applies to advice given AFTER a nominee is nominated. Andrew McCarthy has put it this way:

[A]s far as the constitution is concerned, the Senate's advice is required only after the president has made his nominations.

This is clear from the plain language of the Constitution: "he shall nominate, and by and with the advice and consent of the Senate, shall appoint... judges." This advice comes AFTER the nomination.

The above-mentioned New York Times article also quotes Senator Specter:

"It is my personal view that the option of a filibuster for really extraordinary, egregious circumstances ought to be retained," Mr. Specter said, appearing to sympathize with the Democratic side of the talks. "It seems to me that each senator individually would have to make a determination as to what he or she thought were the extraordinary circumstances."

Thus, Senator Specter would personally prefer not getting totally rid of the ability to filibuster judicial nominations. However, Specter is very much against any deal that would dump the current majority-supported judicial nominees, according to the following remarks made on Friday:

A small group of Senators are attempting to take control of the Senate. By trading judges like chips in a card game, moderates are denigrating the Senate and robbing the body as a whole of its constitutional duty of advise and consent -- 12 Senators should not be picking and choosing for the entire Senate which judges receive votes.

To admit that four out of the ten judges, or six out of the ten, or seven out of the ten are worthwhile for up or down votes in a deal setting is to admit that those judges were previously being filibustered for partisan reasons even though they are qualified and deserving of votes. This would serve to reinforce public cynicism about back room dealmaking for political purposes in the U.S. Senate.

Additionally, Specter urged party leaders to release Senators from party-line voting on matters related to judicial nominations.

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Posted at 10:36pm on May 20, 2005 James Monroe of Virginia on Judicial Nominations

By AndrewHyman

Long before becoming President of the United States, James Monroe participated in the ratification of the U.S. Constitution, as a delegate to the Virginia Ratifying Convention. During that convention (on 10 June 1788), he explained what the role of the President would be with regard to judicial nominations:

He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. THE CONCURRENCE OF A BARE MAJORITY OF THOSE WHO MAY BE PRESENT WILL ENABLE HIM TO DO THESE IMPORTANT ACTS.

Monroe carried on this tradition as one of Virginia's first United States Senators. This majoritarian tradition, which endured for 215 years, may be restored next week. Meanwhile, here's a link to lots more news stories on this subject, courtesy of How Appealing.

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Posted at 5:53pm on May 20, 2005 A piece of history

By krempasky

At 2:19pm today, Senator John Cornyn (R-TX) filed this cloture petition with the words, ââ‚Å“Without objection, on behalf of the Majority Leader, I send a cloture motion to the desk.ââ‚?

Expect the final vote late Monday or early Tuesday, and thanks to Barbara Ledeen at the Republican Conference for the document.

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Posted at 5:43pm on May 20, 2005 Kyl Speech About Rules and that Sort of Thing

By AndrewHyman

Senator Jon Kyl of Arizona gave a detailed speech yesterday, explaining what the Senate majority is planning to do regarding judicial filibusters. The full text of Senator Kylââ‚â„¢s speech is below the fold. Here are a few highlights:

As former Parliamentarian and Senate procedural expert Floyd Riddick has said, ââ‚Å“The precedents of the Senate are just as significant as the rules of the Senate"â₦. [P]recedents have sometimes been created that directly contradict the Standing Rules of the Senate.

â₦.

It is certainly the case that the Standing Rules of the Senate do countenance the filibuster of judicial nominations. But it is equally the case that the longstanding norms of the Senate do not.
â₦.

By breaking the traditions of the Senate, members of the minority should have known that they would force the Senate to react. Traditions should never change without consensus, and a consensus requires ââ‚” at a minimum ââ‚” a majority.

â₦.

[W]hat did not happen as a result of ... earlier exercises of the constitutional option? First, the Senate did not collapse or become ââ‚Å“like the House" ââ‚“ the perennial (and somewhat condescending) fear of many Senators. Second, Senatorsââ‚â„¢ speech rights are just as strong as everâ₦. Third, minority rights were not destroyed.

Those are a few highlights, and the full speech is below the fold.

Mr. President, I rise today to address a very simple yet momentous question: does the Senate have the power to govern itself? Specifically, can a majority of the Senate establish how it will be governed?

I have heard much careless talk over the past few months. Some charge that the Senate will soon ââ‚Å“break the rules to change the rules" and ââ‚Å“destroy the Senate as we know it." Some Senators claim that the Senate is about to abdicate all constitutional responsibility and is becoming a ââ‚Å“rubber stamp." Others raise the specter of ââ‚Å“lawlessness" and ââ‚Å“banana republics." Worst of all, other Senators speak figuratively of detonating nuclear bombs and shutting down the Senateââ‚â„¢s business.

Mr. President, this kind of hysteria does a tremendous disservice not only to the Senate, but to our whole nation. Not only are the claims blatantly false, but they add to the already unacceptable level of incivility in political affairs. It is often said that we should disagree without being disagreeable ââ‚“ a sentiment with which I wholeheartedly concur. A good first step would be for my colleagues to stop making outrageous claims that Republicans want to destroy this institution.

The reality is that the Senate is now engaged in an historic effort to protect constitutional prerogatives and the proper checks and balances between the branches of government. Republicans seek to right a wrong that has undermined 214 years of tradition ââ‚“ wise, carefully thought-out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations but were never used to that end is an important indicator of what is right, and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore.

Fortunately, the Senate is not powerless to prevent a minority from running roughshod over its traditions. It has the power ââ‚“ and the obligation ââ‚“ to govern itself. As I will demonstrate today, that power to govern itself easily extends to that device that has come to be known as the ââ‚Å“constitutional option."

Mr. President, the Constitution is clear about the scope of the Senateââ‚â„¢s power to govern itself. Article I, section 5, clause 2 of the Constitution states that ââ‚Å“Each house may determine the Rules of its Proceedings." The Supreme Court has rarely interpreted this clause, but one case is important for our purposes, that of United States v. Ballin, 144 U.S. 1 (1892). That 1892 case dealt with the power of the majority in the House of Representatives to make rules, and contains two holdings that bear on our situation today.

First, the Supreme Court held that the powers delegated to the House or Senate through Article I, section 5, clause 2 are powers held by a simple majority of the quorum. The Constitution states that a majority of members constitutes a quorum, and the Supreme Court, therefore, held that ââ‚Å“when a majority are present the house is in a position to do business." 144 U.S. at 5. The Supreme Court continued, ââ‚Å“All that the Constitution requires is the presence of a majority." 144 U.S. at 6. Thus, a majority is all the Constitution requires to make rules, to set precedents, and to operate no a day-to-day basis. The Supreme Court made this clear.

Second, the Supreme Court held that the ââ‚Å“power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house." 144 U.S. at 5. By ââ‚Å“house," the Court means the House of Representatives or the Senate. The import of this statement is crucial for present purposes. The power of the majority of Senators to define Senate procedures is one that exists at all times ââ‚“ whether at the beginning, middle, or end of Congress.

So, Mr. President, the constitutional background is simple and uncomplicated. We can govern ourselves. We can do it by majority vote. And we can do it at any time.

Let us look now at how the Senate employs its constitutional power to govern itself. There are four basic ways the Senate does so ââ‚” in standing rules, in precedents, in standing orders, and in rulemaking statutes. I will discuss each in turn.

First, the Senate has adopted Standing Rules to govern some (but not all) Senate practices and procedures. I have seen much confusion in the press and, sadly, in this body, about those Standing Rules. Some argue that the Standing Rules are the be-all and end-all of Senate practice and procedure. This confusion is understandable outside the Senate, but Senators know that those rules are but one aspect of the overall tools ââ‚“ the ââ‚Å“broader rules," we might say ââ‚“ that the Senate uses to govern itself.

That brings us to the second way that the Senate exercises its constitutional power: the creation of precedents. Precedents are created whenever the Presiding Officer rules on a point of order, when the Senate sustains or rejects an appeal of the Presiding Officerââ‚â„¢s ruling on a point of order, or when the Senate itself rules on a question that has been submitted to it by the Presiding Officer. As former Parliamentarian and Senate procedural expert Floyd Riddick has said, ââ‚Å“The precedents of the Senate are just as significant as the rules of the Senate." [Oral History Interview, Senate Historical Office, Nov. 21, 1978, at page 429.] Let me repeat what Mr. Riddick said. ââ‚Å“The precedents of the Senate are just as significant as the rules of the Senate." Indeed, as we will see, precedents have sometimes been created that directly contradict the Standing Rules of the Senate. I will return to this point later in my presentation, but I want everyone to remember what Mr. Riddick said.

A third way that the Senate exercises its constitutional power is through Standing Orders, which can be adopted via legislation, Senate resolutions, or run-of-the-mill unanimous consent agreements. It is worth pausing to note that the Senate regularly overrides the Standing Rules and precedents of the Senate through unanimous consent agreements. Our Leaders get together and decide, for example, to change the time to hold a cloture vote, even though Rule 22 mandates that the vote shall occur one hour after the Senate comes into session on the second day after the cloture petition is filed. Yet the Leaders move the votes ââ‚” in direct contradiction of the rules. Now, of course a ââ‚Å“unanimous consent" agreement is, formalistically, ââ‚Å“unanimous." But that temporary rule change, if you want to call it that, is done completely outside the Standing Rules.

Well, Mr. President, how can they do this? How can they ignore the Standing Rules of the Senate? The answer is simple, and goes to the essence of the situation before us today. As the Supreme Court held, the Constitution gives the Senate the power to make rules and govern itself on a continuous basis. We are not held hostage to the Standing Rules, nor are we required to go through the cumbersome process of amending the Standing Rules, when it is necessary to get something done. This has always been true.

A fourth way that the Senate exercises its constitutional power is through rule-making statutes. For example, for 30 years, the Budget Act has been placing severe restrictions on the right of Senators to debate. Indeed, the Congressional Research Service has identified twenty-six rule-making statutes that somehow limit the ability of individual Senators to debate and/or amend legislation. Think about that for a moment. We hear much pontificating on this floor about the supposedly sacred and untouchable right of Senators to debate on an unlimited basis. Yet arguably our most important function ââ‚“ that of ensuring that government services are budgeted and receive funding ââ‚“ is subject to carefully crafted restrictions of that right. We have 50 hours of debate, followed by a majority vote. For generations, Senators have judged some limits on debate are necessary, just as a matter of common sense.

Parenthetically, no matter how many times a few Senators say otherwise, this controversy has nothing to do with ââ‚Å“free speech." As the Minority Leader has also acknowledged, this dispute ââ‚Å“has never been about the length of the debate." (Cong Rec, Apr. 28, 2005) It is about blocking judicial nominees.

Mr. President, I would like to move to another important aspect of this discussion ââ‚” the role of tradition and norms of conduct in the day-to-day functioning of the Senate. Although it is frequently said that the unique features of the Senate are individual Senatorsââ‚â„¢ rights to debate and amend, there is another, more central aspect to Senate procedure. As I see it, the overriding feature of the Senate is mutual self-restraint and respect for the settled norms of the body.

Let us consider a few examples. Senators limit their speech on an informal basis virtually every day. We cut short remarks so that others can speak. We acquiesce in unanimous consent agreements that will have the effect of denying ourselves any chance to speak on a subject. We decline to object to procedural unanimous consent requests even though we might have good reasons to want to slow down Senate business. We acquiesce in our Leadersââ‚â„¢ floor schedule. We work with bill managers to limit amendments so that the Senate can function, so that each individual Senatorââ‚â„¢s ââ‚Å“rights" do not become an impediment to the task of governing.

Senators have ââ‚Å“rights," but we also have obligations to each other and to the nation. So we limit our rights on the basis of mutual respect and a belief in good government, but ââ‚“ candidly ââ‚“ also out of fear of retaliation. If I assert my rights too forcefully, I not only disrespect my colleagues, but I threaten my own public policy goals. The result is a complicated, multilateral ââ‚Å“truce" of sorts that allows us to do the peopleââ‚â„¢s business in an orderly way. In a word, we gain stability. Institutional stability.

In short, the Senate is institutionally stable not because of the rules, the precedents, the standing orders, or the rulemaking statutes I discussed earlier. The body is stable because we respect each othersââ‚â„¢ prerogatives and understand that any breach of the truce will produce a reaction. It is that basic understanding of physics ââ‚“ action, reaction ââ‚“ coupled with genuine good will that allows us to function even with the many individual ââ‚Å“rights" we possess. The rights only work because we so often choose not to exercise them. So it is not just rights that define the Senate, but also restraint.

Which brings us back to the filibuster of judicial nominations. It is certainly the case that the Standing Rules of the Senate do countenance the filibuster of judicial nominations. But it is equally the case that the longstanding norms of the Senate do not.

Until 2003, no judicial nominee with the demonstrable support of a majority of Senators had ever been denied an up-or-down vote on the Senate floor due to a filibuster. Even on the rare occasions where there were attempts, they failed. On a bipartisan basis.

And why, Mr. President? Because the filibuster of judicial nominations ââ‚” used as a minority veto ââ‚”was not part of our tradition. Again, out of respect for fellow members, for the President, for the Judiciary, and out of a recognition of the long term impact of such tactics, the Senate had always declined to march down this path. When I entered the Senate in 1995, I had grave concerns about some of the more activist nominees that President Clinton sent us. But I listened to my Chairman, Orrin Hatch, my Leader, Trent Lott, and many others. They taught that we had a longstanding Senate tradition against blocking judicial nominations by filibuster. So I joined Democrats and Republicans alike in preventing filibusters.

Ironically, some point to successful cloture votes for confirmed judges and then claim that those nominees were ââ‚Å“filibustered." All that establishes is that both parties ensured a supermajority to end debate precisely to adhere to the historical norms. We took the steps to ensure that those judicial nominees who reached the Senate floor received the fair, up-or-down votes to which they were entitled.

Again, the standing rules might have permitted such obstruction, but the Senate norms and traditions did not. To the extent that the rules technically permitted such obstruction, the traditions had rendered the power obsolete and inert. In common law, there is a doctrine called desuetude, which means that obsolete or unenforced laws shall not have effect in the future, even if not formally repealed. In other words, a law that is de facto unenforced may be treated as ineffective de jure as well. We faced a similar situation in the Senate.

In effect, our tradition was our rule. To minimize the traditions of this body is to display a naive and legalistic misunderstanding of the history of the institution. To say we are a body of traditions is meaningless if we do not simultaneously acknowledge that our traditions have content and meaning.

There can be no question that the filibusters of the last Congress broke that Senate tradition, and, therefore, the settled way this body governed itself. By breaking the traditions of the Senate, members of the minority should have known that they would force the Senate to react.

Traditions should never change without consensus, and a consensus requires ââ‚” at a minimum ââ‚” a majority. The question, Mr. President, is what we are to do when norms and traditions are changed by the minority? What do we do when there is no consensus, just a minority with a determination to exploit dormant rules to further partisan ends?

The Senate can do one of two things. We can let our traditions be transformed and permit rule by the minority, or we can insist that the Senate maintain its traditional norms and take action to protect them. And that, Mr. President, brings us to the Constitutional Option itself.

The ââ‚Å“Constitutional Option" is nothing more than the Senate governing itself as the Constitution provides ââ‚“ by acts of the majority of Senators. The Senate has been in this situation before. Four times over a 10 year period, the Senate majority reacted to a minority that was using rules that had not traditionally been used to obstruct Senate business. My colleague, Senator McConnell, will be discussing each of these instances in depth, but I would like to address one in particular, by way of illustration.

In 1977, two Senators attempted to block a natural gas deregulation bill after cloture had already been invoked. They were succeeding through a strategy of ââ‚Å“filibuster by amendment." Post-cloture debate time had elapsed, but the obstructing Senators could still call up amendments, force quorum calls, and then force roll call votes on the amendments. Rule 22 prohibited dilatory or non-germane amendments, but Senate procedure did not provide any way to automatically rule these post-cloture amendments out of order. True, a Senator could raise a point of order against one of these dilatory amendments, but any favorable ruling could be appealed. A roll call vote could then be demanded on that appeal. And once that roll call vote began, the obstructing Senators could accomplish their slowdown in a different way ââ‚” filibuster by roll call vote. To make matters worse, in 1977, before any point of order could even be made against an amendment, the amendment in question had to be read by the clerk. By objecting to the routine courtesy of waiving of the reading of the amendment, the obstructing Senators delayed Senate business even further.

Now, that all may seem complicated, but thereââ‚â„¢s one undeniable truth about what these obstructing Senators were doing. It was all completely permitted under the Standing Rules and precedents of the Senate. At the same time, however, these tactics were in violation of settled Senate norms and practices. So what was the Senate to do?

The answer came when the then-Democratic Majority Leader made the decision that these new tactics were dilatory, in violation of traditional norms and could no longer prevail. He asked then-Vice President Walter Mondale to sit in the Chair in his capacity as President of the Senate. The Democratic Majority Leader then made a point of order that ââ‚Å“when the Senate is operating under cloture the Chair is required to take the initiative under Rule 22 to rule out of order all amendments that are dilatory or which on their face are out of order." (Cong Rec, Oct. 3, 1977) Mondale sustained the point of order, even though it had no foundation in the rules or precedents of the Senate. Another Senator appealed the Mondale ruling, and the Democratic Majority Leader moved to table. The Senate then voted to table the appeal. In so doing, the Senate created a new precedent. But that precedent ran directly contrary to the Senateââ‚â„¢s longstanding procedures which had required Senators to raise points of order to enforce Senate rules. Under the new precedent established by the Senate, no such point of order would be necessary.

Again, this may seem complicated, but these small changes had dramatic effects. The Democratic Majority Leader then began to call up each of the dilatory amendments so that the Chair could rule them out of order, one-by-one, and the Chair obliged. Under normal circumstances, an appeal would have been in order, but the Majority Leader exercised his right of preferential recognition to block any appeal. He quickly called up every single remaining amendment, Vice President Mondale ruled them out of order, and all the amendments were disposed of.

Nearly 20 years later, the Senator who orchestrated those events in 1977 explained to the Senate what he had done. He explained ââ‚Å“I asked Mr. Mondale, the Vice President, to go please sit in the chair; I wanted to make some points of order and create some new precedents that would break these filibusters. And the filibuster was broken ââ‚” back, neck, legs, and arms." (Cong. Rec., Jan. 5, 1995) So there should be no confusion about what happened that day.

That was the Constitutional Option in action. The Senate faced a situation where a minority of Senators was frustrating Senate business in an untraditional way. The majority wished to proceed. The majority did not propose a formal rules change, refer the proposal to the Rules Committee, wait for its action, and then bring it to the floor under Rule 22ââ‚â„¢s cloture provisions for such rule change proposals. That procedure was not followed. Instead, the Majority Leader recognized that the Senate had the constitutional power to bypass that route ââ‚“ which is exactly what the Senate did.

As I mentioned earlier, Mr. President, that same Democratic Leader would create several other precedents while serving as Majority Leader, in each case because he concluded that the existing standing rules and precedents of the Senate were inadequate, and that a majority of Senators had the power to alter the way the Senate governs itself. In 1979, for example, a new precedent was created to prevent legislation on appropriation bills, in direct contravention of the text of the Standing Rules at that time. In 1980, the Senate used the Constitutional Option to eliminate the ability to debate ââ‚“ and filibuster ââ‚“ the motion to proceed to a particular item on the Executive Calendar. That situation is remarkably similar to the one we face today. And in 1987, in a complicated set of maneuvers, the Senate created new precedents to limit minority rights and to declare that certain dilatory tactics during the Morning Hour were out of order.

Mr. President, I will not examine each of these historical events in detail here today. Instead, I ask unanimous consent to enter into the record a copy of a policy paper prepared by the Republican Policy Committee, which I chair, that examines each of these events in great detail.

These past precedents ââ‚“ in 1977, in 1979, in 1980, and in 1987 ââ‚“ bear directly on the situation the Senate faces today. In those instances, Senate business was being obstructed by dilatory tactics that had not traditionally been employed, but which were permitted under the rules. The Senate faced the same conundrum as it does today: must the Senate permit rule by the minority, or can it exercise its constitutional power to restore traditional practices? In each case, the Senate did the latter. It created precedents that altered the practices and procedures and in some cases the operation of the Standing Rules themselves in order to ensure that tradition was upheld.

Mr. President, what did not happen as a result of these earlier exercises of the constitutional option?

First, the Senate did not collapse or become ââ‚Å“like the House" ââ‚“ the perennial (and somewhat condescending) fear of many Senators.

Second, Senatorsââ‚â„¢ speech rights are just as strong as ever. Nor were Americans ââ‚Å“free speech" rights injured, as some Senators say will happen today.

Third, minority rights were not destroyed. The Senate minority is as vibrant as ever and has been remarkably successful at obstructing the business of the Senate, whether we are talking about the energy bill, medical liability lawsuit reform, asbestos litigation reform, or tax relief.

Before I close, I would like to address concerns that some of my conservative friends have expressed recently. Some are fretting that Republicans are taking a dangerous step by restoring the traditional up-or-down vote standard for judicial nominations.

My friends argue that Republicans may want to filibuster a future Democratic Presidentââ‚â„¢s nominees. To that I say, I donââ‚â„¢t think so, and even if true, Iââ‚â„¢m willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future. I know some insist that we will someday want to block Democrat judges by filibuster. But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned. So I say to my friends: what you say we Republicans are losing is, in fact, no loss at all.

My friends also argue that the legislative filibuster will be next. I have even seen some media outlets insist that this exercise of the Constitutional Option for judicial filibusters will automatically apply to the legislative filibuster. That is completely false. Moreover, Mr. President, no Republican Senator wants to eliminate the legislative filibuster, and few, if any, Democrats do. Some once did, but they have recanted. In fact, the Junior Senator from California said she was ââ‚Å“wrong â₦ totally wrong" ever to have thought otherwise. (Weekly Standard, 3/28/05) Everyone here knows that political fortunes change. It is one thing to give up a supposed ââ‚Å“right that had never been used, such as this filibuster of judicial nominees. It is quite another to be so shortsighted" as to eliminate such a powerful legislative tool. In fact, the first vote I ever cast as a United States Senator was to preserve the legislative filibuster ââ‚” and I was in the majority!

But I think it is important to acknowledge, in the interest of intellectual honesty, that if the majority wanted to eliminate the filibuster for all matters, including legislation, it would certainly have that power. It would be wildly imprudent, contrary to tradition, and genuinely destructive of the institution. But that is what the Constitution provides ââ‚” the power to the Senate to govern itself.

So, in closing, I say to my colleagues: what we are contemplating doing is in the best traditions of the Senate. We are restoring our consensus practices for managing the judicial confirmation process, using a tool that has repeatedly been used and always been available. I look forward to completing this debate so that we can start voting on individual judicial nominees and turn to the pressing legislative matters before the Senate.

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Posted at 3:00pm on May 20, 2005 Cloture Motion Has Been Filed

By AndrewHyman

The cloture vote on the Owen nomination is scheduled for Tuesday, reports How Appealing. Sen. Frist's statement is available here.

Meantime, National Review continues to excel in filibuster coverage. NR's William F. Buckley has a column titled "Phony Apocalypse" that starts out this way:

Really, you would think the Republicans had proposed to rape the Statue of Liberty.

Buckley points out that "hesitation, after a while, comes over as irresolution," so it's a good thing the cloture motion has been filed. NR editor Rich Lowry has a column titled "Dangerous Women: The Yââ‚â„¢s of the injudicious holdup." Lowry concludes with these observations about gender bias:

Because Democrats have used unprecedented judicial filibusters to block the nominees, they have had to apply red-hot rhetoric to justify themselves. Priscilla Owen might have been a garden-variety conservative if she had a Y chromosome, but as a woman she is deemed an "extremist" undeserving of an up-or-down vote on the Senate floor. The evidence adduced to support this charge is primarily her decisions on the Texas supreme court in cases involving the state's parental-notification statute. She ruled with the majority in nine out of 12 such cases, hardly a sign of runaway judicial extremism. When it comes to Owen, Brown, or presumably other compelling conservative women appellate nominees, Democrats have a simple message: "You've come a long way, baby. Go no further."

NR's Bench Memos also continues to have great stuff on the impending opportunity for the Senate majority to assert its will.

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Posted at 1:25pm on May 20, 2005 Compromise News

By DanCT

The most realistic approach to a compromise is the one that has been getting the most coverage:

Democrats would pledge not to filibuster upcoming nominees except in "extraordinary circumstances." Republicans would not vote for changes in the filibuster rules, except if, in their view, Democrats at some point violate the spirit of the agreement.

There are two big problems with such a deal. First, it is obviously only a temporary fix and doesn't address the underlying issue of the inappropriateness of filibustering nominees. As soon as the mix of Senators changes or even one of the signators defects, the deal falls apart. The second is that after Democrats called Scalia, Thomas, Rehnquist, Owen, and Brown "extreme", GOPers are hesitant to trust the Democrats' judgment about what constitutes "extraordinary circumstances." According to Ben Nelson (D-NE), trust building been the focus of the discussions:

Sen. Ben Nelson (D-Neb.), who has played a major role in seeking a compromise, said that much effort in the last few days had been spent on building trust among the group. "Every time we've gotten together, we've increased that trust, that mutual respect and the desire to work together," Nelson said after one session.

And how close are they getting to a deal?

"Getting close," said Sen. Ben Nelson

And:

We're as optimistic as we've ever been, but we're not quite there yet," said Sen. Mark Pryor (D-Ark.).

A different picture is painted by Susan Collins (R-ME):

We're making progress, but we're making progress by inches, rather than by miles," said Maine Republican Susan Collins, adding, "We need to get everyone to a certain comfort level."

It sounds like Collins is wary, but she leaves open the possibility that she could be convinced. Hagel, on the other hand, isn't about to be lured into a deal that allows blockage of any nominees.

Ben Nelson (D-NE) appeared on Hardball with Chris Matthews last night and didn't do very much to inspire trust. An exchange:

MATTHEWS: Do you mean thereââ‚Ëœs a possibility you would declare Judge Scalia an extraordinary case and vote against cloture [if he were nominated for Chief Justice]?

NELSON: Probably not. But I havenââ‚Ëœt vetted him. I havenââ‚Ëœt seen all the papers....I havenââ‚Ëœt looked at every one of his decisions.

Probably not? If even the famously moderate Ben Nelson accepts the premise that there is nothing wrong with filibustering judicial nominees for ideological reasons, there will be no deal. We see Democrats one day strongly denounce the principle of filibustering of nominees, and a short time later they warmly embrace the filibusters they so recently denounced. How can they defend their turnabout? [paraphrase] "These are extraordinary circumstances. Justice Owen is outside the mainstream. Justice Pryor has strongly held beliefs." If PFAW and NARAL can convince 40+ Senate Democrats that Justices Owen and Pryor are "extreme", they will be able to convince moderate Democrat Senators that Scalia or any other conservative judge that gets nominated to a circuit court or the Supreme Court is also extreme. To build the kind of trust that moderates like Susan Collins and Chuck Hagel are looking for will require a stronger committment to the principle that there's something unsavory about filibustering nominees for any reason, let alone ideology.

The interview continued:

MATTHEWS: No, I know, Iââ‚Ëœm only asking the ones who sit on the court now, because I do want to know what extraordinary means. And I question, I guess I think it may be an escape hatch for some people, maybe not one of your six, to vote against anybody.

NELSON: Well, Iââ‚Ëœll put it this way. When I couldnââ‚Ëœt get a file that I wanted, the material that was available but would not be made available to me in the case of one of the judges, I voted against cloture. The one time I did. Because I thought it was extraordinary. I decided, if I canââ‚Ëœt get the information, if I canââ‚Ëœt make up my mind, how can I decide up or down on that judge?

That was the rationale for blocking Miguel Estrada--that he didn't release confidential memos from his years in solicitor generals' offices:

They should remember that the reason Democrats gave for blocking Estrada's nomination was that the White House would not release memos Estrada wrote while working for both Republican and Democratic solicitors general. Those memos...are legally protected from disclosure, and every living solicitor, of both parties, condemned the Democrats' request.

If even Ben Nelson leaves open the door for blocking nominees like Miguel Estrada for not releasing confidential memos of a kind that have never been released by any nominee, there will be no deal.

Such a deal, though, is plausible, unlike the deal the Byrd and Warner have reportedly been discussing:

The issue at the forefront of current negotiations is a proposal championed by Byrd and Sen. John W. Warner (R-Va.) to create an independent, bipartisan commission ââ‚” under the auspices of the Senate Judiciary Committee ââ‚” that would pick a nonbinding pool of nominees to propose to the president to fill any Supreme Court vacancies.

This is a non-starter because it would require Senate leadership AND the President to go along with it. It's not going to happen. By contrast, the maverick deal being discussed by Nelson, McCain, Collins, etc. is plausible because individual Senators have the power to vote as they see fit. For example, if five Democrats decide that filibustering nominees is wrong, they can simply vote for cloture even if Harry Reid doesn't like it. Or if 6 Republicans decide that filibustering is a legitimate tactic to use against nominees, they can vote against the "nuclear option" even if Bill Frist doesn't like it.

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