Archives 11/5/05 to 4/14/06
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Posted at 11:52am on Apr. 14, 2006 Open Thread
By AndrewHyman
Comment away. And here's some speculation about a future vacancy on the Supreme Court. Note the author's discussion of a "vulturine pastime."
Posted in Open Threads —
Posted at 9:31pm on Apr. 11, 2006 Spring Break
By AndrewHyman
Blogging is so addictive. But, other things beckon. Time to take a break for a little while. Keep an eye on this page for our other bloggers. Thanks so much to our commenters. We'll have open threads from time to time. See you after Spring Break. :-)
Posted in Uncategorized —
Posted at 12:57pm on Apr. 11, 2006 Spongetone Law
By AndrewHyman
Steve Stoekel plays bass guitar with the band The Spongetones. Itââ‚â„¢s refreshing when people from all walks of life take an interest in the workings of the legal system. However, itââ‚â„¢s also refreshing to see that Mr. Stoekelââ‚â„¢s idiotic views about constitutional law are labelled as such, in his column titled ââ‚Å“Confessions of an Idiot.ââ‚? Hereââ‚â„¢s an excerpt from the column which appeared today in the Charlotte Observer:
Scalia recently declared his belief in sticking to the Constitution "as it was originally written" and that anyone who thinks it has to change with society is "an idiot" â₦.I'm not an expert in constitutional law or American history, but I've read enough to be puzzled by this deification of these men who were there at such a pivotal moment in human history.
Actually, Scalia is not deifying anyone. Heââ‚â„¢s saying that if you want to change the Constitution, then pass an amendment. If you want to implement a policy, then get your legislature to enact it. If a constitutional provision needs to be applied to new circumstances, then apply it in a new way. But donââ‚â„¢t pretend that the changes you want and the policies you crave and the constitutional provisions you'd prefer are already in the Constitution, and that the policies desired by your political opponents are already forbidden by the Constitution.
Regrettably, Stoekel's point of view is shared by more than a few judges. Yesterday, over at the blog Judging Crimes, Joel Jacobson had a post indicating that Justice Souter has a lot in common with the Spongetones' bass guitar player.
Hat Tip: Howard Bashman.
Posted in Analysis and Predictions —
Posted at 10:49am on Apr. 11, 2006 They The Judges
By AndrewHyman
Today, Peter Hannaford has a review in the Washington Times of Charles Pickering's book, "Supreme Chaos." Hannaford mentions this quote from Pickering's book:
Five individuals on the (Supreme) Court changing the agreement between a people and their country does not respect the right of the people for self-governance. A living Constitution turns the concept of "We the People" on its head.
It's equally problematic when the judiciary generalizes the Constitution to a level of abstraction that gives them a free hand. In other words, just because the framers of the Constitution meant to "do good" doesn't mean that judges can overturn all statutes that don't (in their view) "do good." IMHO.
Posted in Analysis and Predictions —
Posted at 5:43pm on Apr. 10, 2006 Justice Ginsburg Comments on the Confirmation Process and Caricatures Originalism
By AndrewHyman
Justice Ginsburg gave a speech last Friday at the University of Nebraska in Lincoln. Hereââ‚â„¢s a news report about some of her remarks:
[A] threat that canââ‚â„¢t ââ‚Å“be â₦ easily discounted,ââ‚? she continued, is in the confirmation process for judicial nominees, which Ginsburg likened to a ââ‚Å“political hazing.ââ‚? The process, she said, risks politicizing the judiciary, so that decisions are rendered along party lines.
In earlier remarks to a media law class at the NU College of Journalism and Mass Communications, Ginsburg recalled a conversation with Warren Burger, former Supreme Court chief justice. Burger told Ginsburg his confirmation hearing took one hour. Hers lasted four days, she told the students.
Asked by media law student Marcus Dawson to describe her legal philosophy, Ginsburg set herself apart from so-called ââ‚Å“originalistsââ‚? on the bench, led by Justice Antonin Scalia. The Constitution, she said, is not ââ‚Å“ordinary lawââ‚? but a document of ââ‚Å“grand provisionsââ‚? meant to ââ‚Å“govern through the ages.ââ‚? She cited the 14th Amendment, which guarantees equal protection. When the Amendment was passed in 1868, womenââ‚â„¢s status in society was similar to that of children, she said. ââ‚Å“The way it (the Amendment) was understood originally, did it apply to women? Iââ‚â„¢d have to say, no.ââ‚?
Unfortunately, the politicization of the confirmation process is a direct result of judges like Justice Ginsburg acting more like well-meaning politicians instead of acting like judges. Her remarks about ââ‚Å“originalistsââ‚? are way off base, and are meant to justify her own free-wheeling politicized jurisprudence. If the framers of the 14th Amendment didnââ‚â„¢t originally mean to protect women, then why in the world would they have forbidden each state from denying ââ‚Å“any person within its jurisdiction the equal protection of the lawsââ‚?? Everyone knows that women are people, and the Supreme Court has been saying so for centuries:
There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside."
MINOR v. HAPPERSETT, 88 U.S. 162 (1874). It might be plausible to ask whether the Equal Protection Clause was only meant to protect African-American men and women, instead of protecting men and women of other races too. But since the Clause makes no explicit distinction about race, itââ‚â„¢s pretty clear that the framers meant to protect men and women of all races. For centuries, the Supreme Court has correctly understood that the Clause is not limited to protecting men and women of African descent:
These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. . .
YICK WO v. HOPKINS, 118 U.S. 356, 369 (1886). Does Justice Ginsburg seriously believe that women were not considered ââ‚Å“personsââ‚? in 1868 when the Fourteenth Amendment was written? Thatââ‚â„¢s just silly. There have been debates over the years about how much women are protected by the Equal Protection Clause, but no serious scholar doubts that the Clause was meant to protect women to at least some degree. Chief Justice Rehnquist, for example, argued that the question of how much protection the Clause provides should be answered by a rule of reason rather than according to the Rube Goldberg tests that the Court (with Justice Ginsburgââ‚â„¢s help) has applied:
All legislation involves classification and line drawing of one kind or another. When this Court expands the traditional "reasonable basis" standard for judgment under the Equal Protection Clause into a search for "legitimate" state interests that the legislation may "promote," and "for fundamental personal rights" that it might "endanger," it is doing nothing less than passing policy judgments upon the acts of every state legislature in the country.
WEBER v. AETNA CASUALTY & SURETY CO., 406 U.S. 164 (1972)(Rehnquist, J., dissenting).
Perhaps what Justice Ginsburg meant to say last week in Nebraska is that the framers of the Fourteenth Amendment regarded a great deal of discrimination between women and men as being reasonable, and therefore they believed that such discrimination was not forbidden by the Equal Protection Clause. However, nothing in the text of the Equal Protection Clause requires us to apply the framers' rule of reason instead of the American people's current standard of reasonableness. Justice Scalia recently pointed this out in a Fourth Amendment case:
It is not as clear to me as it is to Justice Stevens that, at the time the Fourth Amendment was adopted, a police officer could enter a married woman's home over her objection, and could not enter with only her consent. Nor is it clear to me that the answers to these questions depended solely on who owned the house. It is entirely clear, however, that if the matter did depend solely on property rights, a latter-day alteration of property rights would also produce a latter-day alteration of the Fourth Amendment outcome---without altering the Fourth Amendment itselfâ₦.As property law developed, individuals who previously could not authorize a search might become able to do so, and those who once could grant such consent might no longer have that power. But changes in the law of property to which the Fourth Amendment referred would not alter the Amendment's meaning: that anyone capable of authorizing a search by a private party could consent to a warrantless search by the police.
There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. â₦This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband's house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding.
GEORGIA v. RANDOLPH (2006), (Scalia, J., dissenting). Of course, Justice Scalia is correct, and Justice Ginsburg is distorting his position. Justice Ginsburg's approach gives the Court great latitude and discretion to implement its own policy preferences, and that is the true cause of the lengthy and politicized confirmation hearings we have been witnessing. It's a national tragedy.
UPDATE: As far as women's suffrage is concerned, it's clear from the text of the Fourteenth Amendment that this was meant to be outside the Amendment's coverage:
Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
That's why the Nineteenth Amendment was necessary, in order to ensure that women are not denied the vote on account of gender. Also, since Section 2 the Fourteenth Amendment specifically contemplated that some males would be denied voting rights, the Fifteenth Amendment was necessary in order to ensure that African-Americans would not be denied the vote on account of race.
Posted in News —
Posted at 1:12am on Apr. 10, 2006 Constitution Versus Precedent
By AndrewHyman
Robert F. Nagel has a thoughtful essay in the April 17 issue of the Weekly Standard, titled "Bowing to Precedent: A decent respect for the Constitution should cause the Supreme Court to reconsider some past decisions." Here's an excerpt about the judicial confirmation process:
Even as Specter grilled Alito about the need to separate law and politics, the senator was engaged in a very public process in which politicians try to affect the direction the Court will take. Specter was doing so at a time when the line between political considerations and legal considerations has largely vanished even in the way that the justices attempt to justify their judgments. The doctrine that Roe is a super-precedent makes completely clear---as do scores of decisions that rest on precedent rather than on the Constitution itself---that the justices (and their apologists) now believe that the authority of the Court's decisions is more important than the authority of our fundamental law.
Nagel's essay is a must-read.
UPDATE: There's further interesting discussion of Nagel's essay over at the Volokh Conspiracy.
Posted in Analysis and Predictions —
Posted at 8:35pm on Apr. 9, 2006 Trivia
By AndrewHyman
Consider the two-term presidents. There were eleven of them who served exactly two terms, but let's leave out George Washington since he had the advantage of filling every seat of the Supreme Court. Here are the other ten two-term presidents, with the number of people they appointed to the Supreme Court in parentheses: Jefferson (3), Madison (2), Monroe (1), Jackson (5), Grant (4), Cleveland (2), Wilson (3), Eisenhower (5), Reagan (3), and Clinton (2). The average is exactly three.
Of the 101 former justices of the U.S. Supreme Court, 50 left office "feet first" whereas 51 left office by retiring or resigning or assuming senior status. Of those 51 who left office voluntarily, the party of the appointing president was the same as the party of the replacing president in 34 instances, and the party was different in the remaining 17 instances.
Because the Democratic-Republican Party pretty much became the Democratic Party, I've considered them the same. Likewise, because the Whig Party pretty much became the Republican Party, I've considered them the same as well, not that it makes much difference. Only two Whig-appointed justices left office voluntarily: one under President Grant (R), and one under President Buchanan (D) --- so I've counted that as one same-party replacement, and one different-party replacement. No justice who left office voluntarily did so under a Whig president.
Posted in Analysis and Predictions —
Posted at 2:06pm on Apr. 9, 2006 The ACLU Is Correct! Seriously.
By AndrewHyman
From an ACLU Press Release on April 7:
The Senate ... unwisely proposes to direct all immigration appeals to one court: the U.S. Court of Appeals for the Federal Circuit. Congress has yet to fully consider this radical proposal, which would undermine the rights of immigrants to judicial review. Furthermore, the Federal Circuit Court of Appeals has no experience with immigration, civil rights, or related constitutional claims - claims that could overwhelm the court.
As the ACLU says, this is just a dumb idea. The Federal Circuit currently doesn't handle (or know anything about) immigration issues. Mainly, it resolves patent disputes. Dumping the nation's immigration cases on the Federal Circuit would: (1) eliminate an opportunity for Pres. Bush to nominate new judges for the other circuits, (2) give immigration cases to judges who currently know nothing about them, (3) overwhelm the Federal Circuit and thereby destroy our country's patent system. Why is Senator Frist supporting this? It really makes no more sense than the idea of merging the Immigration and Naturalization Service (INS) into the Patent and Trademark Office (PTO). Below the fold is a very informative piece from the New York Times about this whole issue.
In bills' small print, critics see a threat to immigration
The measure would designate the U.S. Court of Appeals in Washington as the only court in the nation to handle immigration appeals.
By Rachel L. Swarns
THE NEW YORK TIMES
Saturday, March 25, 2006
A little-noticed provision in two key Senate immigration bills would reshape the handling of immigration appeals cases and has touched off an outcry from several legal scholars, federal judges and the policymaking group for the federal courts.
The measure would designate the U.S. Court of Appeals for the Federal Circuit in Washington, an administrative court that focuses primarily on patent cases and currently handles no immigration appeals, as the only court in the nation to handle immigration appeals.
Such appeals are currently shared by the other 12 federal appellate courts.
The judges and scholars say that the circuit court in Washington, which handles about 1,500 nonimmigration cases a year, would be swamped by an additional 12,000 immigration cases. And they say that the court lacks the expertise to handle complex immigration cases, which often raise a host of constitutional and human-rights issues.
The question of how these cases are handled is particularly sensitive because federal appeals court judges have sharply criticized what they have described as a pattern of biased and incoherent decisions from immigration judges in asylum cases, which are the bulk of immigration appeals.
The two bills --- one by Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, the other by Senate Majority Leader Bill Frist, R-Tenn. --- were intended in part to ease the burden on the nation's federal appeals courts, which have had a sharp increase in immigration cases.
The provisions could come up for a vote in the Senate as early as next week.
Judiciary Committee staff members said that designating a single court to handle the cases would ensure a consistent standard for immigration decisions and discourage immigrants from shopping for favorable courts.
They said that immigration lawyers would be assigned to the court to help enhance expertise and that the number of judges would be increased to 15 from 12.
But Richard Posner, a federal appeals court judge in Chicago, said the measures were "not a sound solution."
Even with the three additional judges, he said, the annual caseload would surge to 900 per judge from 125.
"I cannot think of an area of law that is more remote from immigration than patents," Posner wrote in a letter to Sen. Dick Durbin, D-Ill., a Judiciary Committee member. "No doubt the judges of the federal circuit can become knowledgeable about immigration law, but they will be overwhelmed by the new caseload."
Leonidas Ralph Mecham, secretary for the Judicial Conference of the United States, a group of judges that makes policy for the federal courts and presents the judiciary's views to Congress, raised similar concerns.
"No sufficient justification to support changing the status quo and shifting these cases from the regional courts to the federal circuit has been provided," Mecham wrote in a letter to Specter.
The judges also raised concerns about a proposal that would appoint a single judge to decide whether immigration cases were worthy of consideration for appeal. If the judge declined the case, no further review would be available.
Durbin said he planned to offer an amendment that would kill the measures, telling his colleagues on the Judiciary Committee that it would be premature to make such changes before holding hearings.
Critics of the new legislation also say that a better solution would be to add resources to the overstrained local immigration courts and the immigration appeals court, known as the Board of Immigration Appeals.
Just keep the system the way it is, and add new circuit judges to circuits around the country. If the goal is to ease the burden on the first thru eleventh circuits, then why transfer immigration cases? Why not transfer, say, 14th Amendment cases instead, or environmental cases? This seems like a transparent attempt to eliminate the need for additional judges in the First, Second, Sixth, Eighth, and Ninth circuits and thereby circumvent Congressman Sensenbrenner's threat to oppose such additional judges unless the Ninth Circuit is split.
The idea of moving all immigration appeals to a court located in Washington D.C. is especially absurd when you consider that Congress is on the verge of dramatically increasing enforcement of the immigration laws, which would mean a huge increase in litigation throughout the country. Requiring all those litigants (including officials of state enforcement agencies) to travel to Washington D.C. would be the height of inefficiency.
The solution to illegal immigration is not the Federal Circuit. It is a WALL. Hire Christo; it could be one of the great wonders of the world.
.
UPDATE: Incidentally, the immigration "courts" and the Board of Immigration Appeals (both mentioned at the end of the NY Times article) are in the executive branch.
Posted in Analysis and Predictions —
Posted at 10:47am on Apr. 9, 2006 Modify the Blackmail
By AndrewHyman
Proponents of splitting the gargantuan Ninth Circuit into two or more smaller circuits have tried a couple of interesting tactics over the past year or so. One of those tactics has been to insert the legislation into a budget bill, so that it can't be filibustered. The other tactic has been to refuse to approve new circuit judgeships nationwide, unless the circuit split is approved.
Using a budget bill to split the Ninth Circuit is not an unprecedented move. For example, in 1997, the Senate passed an appropriations bill that would have split the Ninth Circuit. And splitting the Ninth would undeniably have significant budget implications. However, Senate Judiciary Committee Chairman Specter announced last November that he would oppose putting the split in a budget bill, arguing that the split's budgetary implications would be incidental to the split's other effects.
Regarding the linkage between new judgeships and a circuit split, Chief Judge Mary Schroeder of the Ninth Circuit has called that linkage "blackmail." Presumably she would recuse herself if the legitimacy of the linkage ever comes before her court. In any event, five of the proposed 12 new circuit judgeships would be outside the Ninth Circuit, and seven would be inside the Ninth Circuit. Why not go ahead and create the five new judgeships OUTSIDE the Ninth Circuit, and only keep the seven new Ninth Circuit judgeships on ice? In other words, modify the blackmail, pending resolution of the split issue.
Posted in Circuit Courts —
Posted at 2:48pm on Apr. 8, 2006 Factoid
By AndrewHyman
According to the Senate Judiciary Committee, between May 26, 2005 and now, a total of one sitting circuit court nominee has been approved by the committee. That's one approval in more than ten months...and counting.
A list of currently pending nominees is on the right-hand-side of the confirmthem home page, under the category "Circuit Nominees."
Supreme Court nominees took up some time during the past ten months. John Roberts was nominated on July 19, 2005 and Sam Alito was reported out of Committee on January 24, 2006. But even so, from July 19, 2005 to January 24, 2006 the Judiciary Committee dealt with a variety of subjects, listed here, including asbestos, habeas reform, cameras in courtrooms, Saudi Arabia, marriage amendment, reporters' privilege, immigration, copyright, Able Danger, Kelo, FBI oversight, and patents.
Some people suggest that the pace of the Committee might pick up if the two nominees named and disfavored in the Gang of 14 Deal would withdraw. However, one of them (Saad) did withdraw, and the other (Myers) was approved by the Committee. Anyone care to speculate what's causing the delay in the Judiciary Committee?
Posted in Judiciary Committee —
Posted at 9:27pm on Apr. 6, 2006 Maybe Specter Disagrees With What Hatch Did
By AndrewHyman
The Senate is scheduled to go on a two-week recess beginning on Monday, April 10. There hasnââ‚â„¢t been much progress in the Judiciary Committee lately on circuit court judges; the two circuit nominees now pending on the Senate floor were reported out of committee way back in the first half of 2005, and the Committee has only approved one sitting circuit court judge in the last ten months. I wonder if part of the problem is that Chairman Specter might be having second thoughts about what Chairman Hatch did in 2003 to end filibusters within the Judiciary Committee.
In 2003, Senator Hatch put the kibosh on committee filibusters. The pertinent rule is Judiciary Committee Rule IV:
The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with 10 votes in the affirmative, one of which must be cast by the minority.
Hatch interpreted Rule IV as applying when the Chairman himself does not want to call for a vote, so that a member can make a motion to overcome the ââ‚Å“obstreperous chairman.ââ‚? Democrats insisted that Rule IV allows them to prevent even the Chairman from calling for a vote on his own initiative.
Itââ‚â„¢s undisputed that the Senate Parliamentarian advised Senator Hatch that if a point of order were made on the floor of the Senate objecting to Hatchââ‚â„¢s interpretation of Rule IV, then the Parliamentarian would only make sure that the Committee had voted by a majority vote with a quorum present. So, itââ‚â„¢s pretty clear that the GOP majority of the Judiciary Committee had legitimate power to do what it did in 2003. In my view, Hatch made a legitimate interpretation of Rule IV.
An anology to the rules of the full Senate is helpful. Under the rules of the full Senate, Rule XXII is used to end debate by invoking cloture. The only reason why the presiding officer of the Senate cannot end debate unilaterally is because of Rule XIX, which says:
[T]he Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consentâ₦.
There is no comparable provision in the rules of the Senate Judiciary Committee. Senator Feingold quotes something that Senator Thurmond said in a 1979 meeting of the Judiciary Committee: ââ‚Å“The present rule is the Senator can talk as long as he wants to.ââ‚? But such a rule is not written down anywhere, unlike Rule XIX of the full Senate.
Even if the Judiciary Committee did have a rule of unlimited debate analogous to Senate Rule XIX, nevertheless deliberate obstruction in the Committee would apparently undermine Senate Rule XXVI, which says, "The vote of any committee to report a measure or matter shall require the concurrence of a majority of the members of the committee who are present." In other words, requiring the concurrence of a supermajority of Judiciary Committee members in order to vote on a nominee would at best be contrary to the spirit of Rule XXVI, and at worst contrary to its letter.
Anyway, I sure hope that Specter agrees with what Hatch did. It was perfectly legitimate, and pretty gutsy too.
UPDATE: It should be noted that the Alito nomination was approved by the Judiciary Committee along party lines, during Spcter's chairmanship. However, I don't recall that there was any objection to bringing the matter to a vote without further debate. The same is true of the party line votes in 2005 on the nominations of Brown, Owen, Pryor, Myers and Boyle.
Posted in Judiciary Committee —
Posted at 6:17pm on Apr. 5, 2006 Committee Vote on Smith Tomorrow
By AndrewHyman
Looks like the Judiciary Committee will vote tomorrow on the nomination of Randy Smith of Idaho for the Ninth Circuit. Senator Feinstein has made some very unpersuasive arguments that the seat belongs to California. UPDATE: SJC meeting cancelled.
Laura Ingraham had a March 23 column in the New York Sun that gets right to the point:
Keep fighting the war for judicial confirmations. President Bush's two biggest success stories over the last year were his two Supreme Court appointments. Justices Roberts and Alito were popular with the country, and their confirmations confounded liberals who did not like having to debate the merits of judicial activism in public.
There are a number of other highly qualified judicial nominees --- Brett Kavanaugh, nominee for a seat on the D.C. Circuit, for example --- still being strangled in the Senate. Tell their stories and force the Democrats to defend their blocking strategy. By forcing a showdown with the Democrats over this issue, President Bush will once again rally his base and remind conservatives why it is important that the GOP maintains control of Congress.
Plus a good, strong bill to enforce immigration law wouldn't hurt either.
Posted in News —
Posted at 1:17am on Apr. 5, 2006 Hugh Hewitt, Dan Coates, and Voyeuristic Self-Indulgence
By AndrewHyman
On Tuesday, Hugh Hewitt had some words for Senator McCain, regarding the nomination of William Haynes.
On Monday, former Senator Dan Coates gave a speech about his experience as a sherpa for Supreme Court nominees.
And, last Friday, the blog Voyeuristic Self-Indulgence had an interesting post. Here's a sample:
I favour a Supreme Court that's so divided it swings ... back-and-forth between the Left and Right depending on the President who has just been in office (and who made the most recent nomination). This has several benefits: the only Supreme Court precedents that will be able to survive over the long term are those that enjoy the consistent support of both wings of the court and thus, presumably, are deeply rooted in the national fabric of the Constitution.
I concur. That's one reason why I think requiring a Senate supermajority to approve judges would be a very bad idea, even if (heaven forfend) Hillary becomes President and the GOP loses the Senate.
Posted in News —
Posted at 7:11am on Apr. 4, 2006 A Judge Is Born
By AndrewHyman
The full Senate is scheduled to vote this morning on the nomination of Michael Chagares. He would be the first circuit court nominee confirmed in more than 9 full months, with the single exception of Susan Neilson (deceased). Ed Whelan is a little bit suspicious about the Senate's sudden burst of activity on the Chagares nomination.
Anyway, hopefully, schedulers will soon make room for floor votes on the languishing nominations of Terrence Boyle and William Myers, plus hearings for William Haynes, Sandra Ikuta, Milan Smith, and Michael Wallace, plus committee votes for Brett Kavanaugh and Randy Smith. Information about each of them is linked over at the right-hand-side of the confirmthem home page, under the category "Circuit Nominees."
BRIEF ASIDE: I had a short exchange of views with Randy Barnett yesterday, regarding the Ninth Amendment. And here's another interesting discussion at the Volokh Conspiracy, regarding Oliver Wendell Holmes.
UPDATE: Michael Chagares has been confirmed, 98-0. Congratulations. Charages' young children had some funny questions for him (though nothing about getting a sword).
Posted in News —
Posted at 2:09am on Apr. 3, 2006 Televise Supreme Court Conferences!
By AndrewHyman
Last Thursday, the Senate Judiciary Committee approved legislation (S. 1768) that would require the Supreme Court's oral arguments to be televised, unless the Court thinks that "due process" would be violated. SCOTUSblog recently had some brief coverage of this issue. The Senate hearing on this proposal occurred on November 9, 2005. Senator Specter has explained as follows:
Because the Supreme Court of the United States holds the power to decide cutting-edge questions on public policy, thereby effectively becoming a virtual "super legislature," the public has a right to know what the Supreme Court is doing.
But why only televise the Court's open sessions, and not its critical conferences? The Court's Wednesday and Friday conferences are where the Justices discuss, debate, and vote. Why can't we watch that too? Here's a brief description of those critical Wednesday and Friday conferences, from the Encarta Encyclopedia:
During the weeks of oral arguments the Court sets aside â₦ time for private discussions of how each justice will vote on the cases they have just heard. Time is also allowed for the justices to discuss which additional cases to hear. These private discussions are usually held on Wednesday afternoons and Fridays during the weeks of oral arguments.
The public has a right to know what happens in those super-legislative conferences. The public and Congress need better information about which justices are maintaining good behavior, and which are not. Those justices who arenââ‚â„¢t behaving well in the conferences should be removed, and web sites like confirmthem could advocate confirmation of new justices/super-legislators. But we need the conference information!
Also last Thursday, the Senate Judiciary Committee approved another proposal (S. 829) that would apparently allow --- but not compel --- the Chief Justice to televise the Court's Wednesday and Friday conferences. Similar legislation has already passed the House, 375-45. Make it compulsory!
P.S. The previous paragraphs of this post are satirical, although the facts stated are entirely true. Televising oral arguments would be a terrible idea, just like televising the Court's conferences would be a terrible idea. The Court is not supposed to be a super-legislature, and the Court ought to stop acting like one. The first sentence of the Constitution (after the preamble) forbids it. Kudos to Senators Edward Kennedy, Diane Feinstein, Orrin Hatch, Jon Kyl, Jeff Sessions, and Tom Coburn for voting against this unwise proposal in committee. And, kudos to President Bush for opposing it too (see his comments about Section 22 of the House bill). Television coverage would institutionalize the Court's politicization of recent decades, rather than reverse it. If oral arguments are televised, then there's no principled reason to not televise the Court's Wednesday and Friday conferences as well.
UPDATE: Justices Thomas and Kennedy offer some interesting testimony to a congressional committee, regarding televisualization.
Posted in News —
Posted at 1:43am on Apr. 2, 2006 Katherine Harris, William Haynes, and Olatunde Johnson
By AndrewHyman
Associated Press reports that, "Katherine Harris' U.S. Senate campaign lost what was left of its core team when a top adviser, campaign manager, and communications director resigned this weekend."
Over at Power Line, Paul Mirengoff yesterday criticized Senator McCainââ‚â„¢s stance regarding the Fourth Circuit nomination of William Haynes.
And, Curt Levey of the Committee for Justice is protesting Columbia Law Schoolââ‚â„¢s hiring of Olatunde Johnson. Allegedly, several years ago, Johnson privately recommended to Senators ââ‚Å“that the judicial confirmation process be rigged to influence the outcome of a pair of pending federal court cases.ââ‚? One of those cases involved affirmative action at the University of Michigan, and that Universityââ‚â„¢s former president is now the president of Columbia.
UPDATE: Columbia responds to Levey here. And, Levey fires back here.
UPDATE #2: Here's a February 20 post at Balkinization making some very serious charges against William Haynes. Haynes should at least be entitled to a hearing in order to try to set the record straight, and clear his name. If the Judiciary Committee wants to deny him a vote that's one thing, but to deny him a hearing would be preposterous. It could be that Haynes and the Judiciary Committee are waiting to see what the Supreme Court has to say about the Geneva Conventions, in the Hamdan case. Anyway, for more recent info about Haynes, see this March 22 article in the Wall Street Journal reporting that Haynes has barred military tribunals from using evidence obtained via torture.
Posted in News —
Posted at 1:31pm on Apr. 1, 2006 Senate May Vote on Boyle "and/or" Kavanaugh Next Month
By AndrewHyman
Bench Memos reports that the full Senate will probably vote on the nominations of Terrence Boyle "and/or" Brett Kavanaugh next month. Here's hoping for "and" instead of "or." Geesh.
Meanwhile, GOP senators are examining testimony by William Myers to see if it meshes with the facts. And, it looks like the Haynes nomination may be blocked by Senators McCain and Graham.
Posted in News —
Posted at 12:37pm on Apr. 1, 2006 Re: Lithwick's latest
By feddie
Andrew notes Lithwick's latest screed, which for once is actually worth reading.
Here are some of the essay's highlights:
[T]here is no phrase or theory for what liberals seek in a jurist. The rhetoric of a ââ‚Å“living Constitutionââ‚? is in decline. What stands in its stead is either the ââ‚Å“judge from the heartââ‚? principle or the ambiguous mandate to place a finger on the scale for the ââ‚Å“little guy,ââ‚? regardless of the outcome compelled by the law itself. No wonder the country is at war with judicial ââ‚Å“activists.ââ‚? The [dem] senators make them sound just awful.
. . . .
The problem . . . is that the conservative theorists chose the better slogan: ââ‚Å“strict construction.ââ‚? Whatââ‚â„¢s not to love about language like that? . . . Itââ‚â„¢s got the word ââ‚Å“strictââ‚? going for it-suggesting that school is in session, Daddy is home, and the field marshal is watching. And itââ‚â„¢s got the word ââ‚Å“constructionââ‚? in there, with its hint of Red State manliness, and the implication that whatever these judges are up to, it will involve muscled forearms and sweaty brows . . . . [T]hink about Justice Antonin Scaliaââ‚â„¢s theory of ââ‚Å“originalism,ââ‚? with its focus on text and language. . . . Whatââ‚â„¢s the opposite of ââ‚Å“originalism?ââ‚? ââ‚Å“Make-it-up-ism?ââ‚?
. . . .
On its face, [the ââ‚Å“Living Constitutionââ‚? is] an oxymoron: Constitutions are dusty and immutable. They do not, in any linguistic sense, live. Not to mention that the words imply an ever-changing, capricious legal project. They play right into the hands of critics who believe that if a Constitution lives, it flips and splashes like a trout on a line. Better for democracy . . . to club it to death and be rid of subjectivity.
The problem for Lithwick et al. is that there is no alternative to originalism other than judicial activism. As Iââ‚â„¢ve mentioned to my liberal friends before, I think the best penumbra lovers can do is to make a ââ‚Å“conservative,ââ‚? institutional argument along these lines:
Originalism is no longer the exclusive method of constitutional interpretation, because, regardless of the original design, constitutional jurisprudence over the past 100 or so years has essentially been developed through a common law method of judging; and resorting to a purely originalist method of constitutional interpretation would destabilize the judiciary and the rule of law. Looking to the original meaning of constitutional text may, in some cases, prove useful, but it should now only be viewed as an aid to interpretation, rather than the gold standard.
In other words, liberals will never win the argument that the founders intended the type of free-wheeling jurisprudence they advocate. That is a patently false proposition. The best liberals can hope to do is to reframe the debate by conceding the obvious (i.e., that back in the day originalism was the shiznit), and then doing the verbal equivalent of patting conservatives on the head and saying: ââ‚Å“Yes, fedster, we know thatââ‚â„¢s the way things used to be, but thatââ‚â„¢s no longer the case. Now, go play with your Jospeh Story action figure and let our robed masters go about the business of reshaping the culture/society in their image.ââ‚?
At least thatââ‚â„¢s my take.
Posted in Analysis and Predictions —
Posted at 5:27am on Apr. 1, 2006 Make-it-up-ism
By AndrewHyman
Dahlia Lithwick has an essay in The American Lawyer today titled, "To a New Lingo: Liberal senators could use a makeover if they want to stop the next conservative nominee from sliding onto the Supreme Court."
Lithwick writes that, during the Roberts hearings, "Democrats were sending the message that liberal jurists make up the law and cry a lot in the process." Likewise, Democrats asked Alito "whether he saw it as his judicial role to make cases come out fairly for the poor and underprivileged, regardless of the law."
Lithwick concludes: "No wonder the country is at war with judicial 'activists.' The senators make them sound just awful.... What's the opposite of 'originalism?' 'Make-it-up-ism?'"
Lithwick notes that the "University of Virginia's James Ryan ... recently wrote that as a result of infighting, nonoriginalists 'unwittingly bolster the originalists' assertion that nonoriginalists are simply making it up as they go along.'" Which is what they do.
So what's Lithwick's recommendation? That Democrats should follow the law instead of making it up? That Democrats should stop undermining and destroying our democracy? No, Lithwick says that a hip public relations ploy would be for "progressives" to merely adopt some better slogans:
They can call it "play nice" or "repair the world" or "level the playing field"....something a lot stiffer than "making stuff up."
Today (April 1) is a fitting day for Lithwick's article. Didn't someone once say that you can't fool all the people all the time? It's hardly "playing nice" to insist that five judges in D.C. should dictate to the rest of the country what is and isn't "nice." That's why you'll look in vain in the Constitution for a Niceness Clause.
Hat Tip: How Appealing.
Posted in Analysis and Predictions —
Posted at 9:29pm on Mar. 30, 2006 ââ‚Å“Todayââ‚â„¢s Massachusetts Marriage Rulingââ‚?
By feddie
Excellent post by Ed Whelan over at Bench Memos.
Posted in News —
Posted at 3:26pm on Mar. 30, 2006 A Few Thursday News Items
By AndrewHyman
According to an editorial today in the Detroit News:
Republicans have decided to make the generous offer to appoint a Democrat to the Michigan district courts for every three to four Republican nominees. Thatââ‚â„¢s a reasonable offer, and one the White House is reportedly extending to other states with two Democratic senators to end a judicial logjam.
The LA Times reports:
The Senate on Tuesday voted to strip its members of the power to secretly place a "hold" on legislation they oppose, a parliamentary tool that has allowed a single senator to derail bills or nominations while leaving no fingerprints.
Also, we're told that, today, the nomination of N. Randy Smith to the Ninth Circuit was held over. The nomination of Micheal Chagares (3rd circuit) was forwarded to the floor by unanimous consent.
Hat Tip: Our commenters.
Posted in News —
Posted at 2:44pm on Mar. 30, 2006 The New Democratic (Court) Strategy?
By Carol Platt Liebau
In this piece, law professor Ronald Cass warns against the ongoing effort by those who oppose him to find ways to marginalize Justice Antonin Scalia.
As I pointed out here some months ago, some Democrats tried a silly and frontal assault on Justice Scalia's ethics. Now, they're challenging his impartiality.
The end game, as Professor Cass points out, is to try to secure the Justice's disqualification on important cases, or to minimize his impact when he does participate. Having failed to block confirmation of two conservative justices, it's apparently become the new Democratic strategy to keep the conservatives from getting to 5.
They've pretty much done all the damage to Justice Thomas that they can (and Justice Thomas makes fewer colorful appearances than Justice Scalia does); Chief Justice Roberts and Justice Alito haven't been on the Court long enough to present themselves as juicy post-confirmation targets; and no one on the left wants to alienate Justice Kennedy, who has increasingly voted their way on many important cases (most notably on gay rights and and the death penalty for those under 18).
Justice Scalia has inveighed against the politicization of judicial nominations. And now he's being subjected to the increasing, and disturbing, politicization of judicial service, as well.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 6:32pm on Mar. 29, 2006 The Appeals Court Vacancy Crisis
By AndrewHyman
"Any week in which the Senate does not confirm three judges is a week in which it is failing to address the vacancy crisis." --- Sen. Patrick Leahy
There are currently 179 federal court of appeals judgeships. 18 of them are vacant, including 12 emergency vacancies. Additionally, no new appeals court judgeships have been created since 1990, and at least 12 more are needed.
The last time the Senate confirmed an appeals court judge was on October 27, 2005. Tragically, that jurist has since passed away. Prior to that, the most recent appeals court confirmation was on June 14, 2005. That's more than nine months ago.
Posted in Analysis and Predictions —
Posted at 4:11pm on Mar. 29, 2006 Committee Votes Tomorrow, Possibly
By AndrewHyman
It appears that the Senate Judiciary Committee may vote tomorrow on the appellate nominations of Randy Smith and Michael Chagares.
By the way, in retrospect, Senate Majority Leader Frist did a really outstanding job confronting the obstruction of judicial nominations, by pushing for the constitutional (a.k.a. nuclear) option last year. Thank you, Senator Frist. Also, in retrospect, Senator Specter did a really outstanding job dealing with three recent Supreme Court nominations. Thank you, Senator Specter. And, President Bush has been making some really outstanding nominations. Thank you, President Bush. Those who care about this issue are appreciative, and we hope for more of the same, instead of more grotesque delays. The goal being to have a federal judiciary that is increasingly inclined to say what the law is, instead of inclined to dictate what the law should be. Let's get rolling.
Posted in Judiciary Committee —
Posted at 2:10pm on Mar. 29, 2006 Fanning the Flames in Boston
By AndrewHyman
In regards to our previous post on the subject of hand gestures, Justice Scalia has written a letter to the editor of the Boston Herald responding to its article. The Associated Press backs up Scalia: the article in the Herald was "untrue," says AP.
Hat Tip: Attila.
UPDATE: Eugene Volokh has further info about Gesturegate. Also, the photo of Justice Scalia making the non-obscene gesture is here.
Posted in SCOTUS —
Posted at 12:44pm on Mar. 29, 2006 Also, re Andy Card
By Quin
For Wash Post readers who noticed my quote on Andy Card this morning, please see this note.
Posted in Uncategorized —
Posted at 12:42pm on Mar. 29, 2006 Yes, do Confirm Them
By Quin
Just as I was posting this piece I wrote for today's American Spectator web site, I noticed that Andrew quite kindly has also just posted it. So let me just add this: We also need to keep urging the White House to forward more originalist/textualist superstars for the seats that remain open. Word on the street is that the crop nominated since the Gang of 14 deal isn't quite as impressive as the ones we fought so hard about for the first five years of this administration.
Posted in Uncategorized —
Posted at 11:58pm on Mar. 28, 2006 WSJ Editorial
By AndrewHyman
The Wall Street Journal had an editorial yesterday about judicial nominations. Here's a piece:
Everyone deserves a break, even the U.S. Senate. But enough already. It's been two months since Samuel Alito was confirmed to the Supreme Court and it's past time Senate Republicans got back to work confirming appeals-court judges.
The full editorial is here, courtesy of Curt Despain and the Republican National Lawyers Association.
UPDATE: Also see a new column on this subject from the American Spectator. The piece is titled "Judge Knot," by Quin Hillyer (who also blogs here at confirmthem).
Posted in Circuit Courts —
Posted at 2:59am on Mar. 28, 2006 Will the Splitter-Uppers Prevail?
By AndrewHyman
There's an interesting thread over at Prawfsblawg regarding proposals to split up the huge Ninth Circuit into two circuits. Some influential congressmen are refusing to create twelve new circuit judgeships nationwide, unless the Ninth Circuit is split up. No new circuit judgeships have been created in the United States since 1990. The Bush administration favors a split, but most Ninth Circuit judges don't. The Justices of the U.S. Supreme Court have yet to weigh in on the issue, as far as I'm aware.
Posted in Circuit Courts —
Posted at 10:29pm on Mar. 27, 2006 We Interrupt This Broadcast for A Message About Hand Gestures
By AndrewHyman
The Boston Herald reported today that Justice Scalia made....
an obscene gesture under his chin when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs....The conduct [was] unbecoming a 20-year veteran of the countryââ‚â„¢s highest court - and just feet from the Mother Churchââ‚â„¢s altar...
But, the Associated Press reports that the Herald story is untrue, and quotes a Supreme Court spokesperson saying that ââ‚Å“It was a hand off the chin gesture that was meant to be dismissive.ââ‚?
For the benefit of the Boston Herald and left-wing moonbats, here is an illustration of the gesture in question, courtesy of Loyola College in Maryland.
All the gesture means is ââ‚Å“I donââ‚â„¢t care.ââ‚? In contrast, here's a photo of conduct arguably unbecoming of a public official:
Wonkette has more. Thank you for your kind attention to this important matter, which admittedly is not very closely related to judicial confirmations. However, nominees should probably avoid both gestures shown above, especially when appearing before the Senate Judiciary Committee. (It may be hard to resist.)
UPDATE: Here's the photo of Justice Scalia's non-obscene gesture:
Doesn't look like Rockefeller to me.
Posted in SCOTUS —
Posted at 7:50pm on Mar. 27, 2006 Senators who campaigned on judges
By Quin
Okay, a quick question for readers who pay close attention to politics: In the last two biennial election cycles, who are the GOP senators who won close races after making judges a big or consistent campaign issue?
Posted in Uncategorized —
Posted at 10:15pm on Mar. 25, 2006 Leahy Has a Point
By AndrewHyman
The Vermont Senator may be on to something, according to this March 14, 2006 statement of his:
[T]he total number of judicial appointments since January 2001 [is] 232, including the confirmations of two Supreme Court Justices and 43 circuit court judges. Of course, 100 judges were confirmed in the 17 months there was a Democratic majority in the Senate. In the other 45 months, 132 judges have been confirmed. Ironically, under Democratic leadership, the Senate was almost twice as productive as under Republican leadership.
Only 132 confirmations in 45 months. Oz over at Redstate remarks:
[I]t's time for the Judiciary Committee to get back to it's pace of late 2004 when it was handling 1 CCA appointee and 2 Federal District Court appointees every week it was in session.
Perhaps the Judiciary Committee will focus on judges, instead of on watering down the bill to enforce immigration law.
Posted in Circuit Courts —
Posted at 2:59pm on Mar. 25, 2006 Judge Boyle
By AndrewHyman
On Saturday, the Washington Post printed a letter from Andrew J. Imparato criticizing Fourth Circuit nominee Judge Terrence Boyle. Arguments such as Imparato's ought to be addressed in the Senate by finally taking an up-or-down vote on Judge Boyle's nomination. Mr. Imparato, by the way, is a leading disability rights activist (he says he has bipolar disorder a.k.a. manic depression).
Imparato's primary criticism of Judge Boyle is the amount of "plain errors" that Boyle has made. On this subject, George Washington University law professor Jonathan Turley has said that Boyle "earned a high number of reversals for 'plain error' but the situation isn't extreme enough to justify a filibuster as opposed to a 'no' vote â₆particularly given his 'well qualified' ABA ranking." Furthermore, Boyle's overall reversal rate is 7.5 percent, which is below the national average of 9.7 percent, according to the Administrative Office of the Courts.
Imparato has some other criticisms, but they don't seem substantial. He says that Boyle has yet to rule in favor of a plaintiff under the Americans With Disabilities Act (ADA) "in a published ruling." I guess unpublished rulings aren't good enough.
The only specific case that Imparato alludes to involved the ADA: Williams v. Avnet, Inc., 910 F. Supp. 1124 (E.D.N.C. 1995). That decision by Judge Boyle was AFFIRMED by a three-judge panel of the Fourth Circuit, in Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346 (4th Cir. 1996). Although the Fourth Circuit panel did comment that Boyle had been mistaken about the particular issue of "reasonable accomodation," Fourth Circuit Judge Karen Williams pointed out in a concurring opinion that that comment by her two colleagues was merely dicta. In other words, this is a very slim and shaky basis for rejecting any nominee, much less a nominee with such excellent credentials, character, and experience as Judge Boyle.
Additional info about Judge Boyle can be found in the links over at the right-hand-side of the confirmthem home page, under the category "Circuit Nominees." Imparato should be more upbeat about Boyle's nomination.
UPDATE: More info about Judge Boyle's reversal rate is here, courtesy of the Republican National Lawyers Association (RNLA).
Posted in Circuit Courts —
Posted at 3:06am on Mar. 25, 2006 Monday Vote on Smith?
By AndrewHyman
Looks like a committee vote will occur Monday on the Ninth Circuit nomination of Randy Smith. Then Smith can join Myers and Boyle on the Senate floor.
And, if you'd like to spend six and a half hours focusing on the past, click here to listen to a very long but interesting conference reviewing the judicial confirmation battle of the past three years. Hat Tip: How Appealing.
Posted in Circuit Courts —
Posted at 10:06pm on Mar. 23, 2006 Saad's Withdrawal
By Marshall Manson
Over the past couple of years, thanks in part to my involvement in the judicial confirmation battles, I had the pleasure and privilege of getting to know Judge Saad. I came to know him as a fine gentleman who more than deserved to take his seat on the 6th Circuit. His withdrawal tonight ends a shameful saga of character assasination perpetrated by obstructionist Democrats. But perhaps the most shameful part of the tale is that complicit Republicans allowed it to succeed. When Henry Saad was under attack -- when Minority Leader Harry Reid violated Senate rules by referencing confidential information about Judge Saad on the floor of the Senate -- too many Republicans sat by and let Reid and his Senate cronies get away with it.
So tonight, I hope every Republican Senator feels ashamed. I hope the Democrats do as well, but I'm long past believing that there's a teaspoon full of shame to go around their caucus.
UPDATE: Just received this from Manny Miranda, head of the Third Branch Conference.
The withrawal of Judge Saad, first nominated in November 2001 and renominated twice more, represents an outrageous failure of the Republican senate leadership, and a nauseating injustice to a well-qualified public servant. It is also a failure of White House stewardship of their own judicial nominees. This withdrawal represents another Republican surrender to despicable bullying and calumny.
Judge Saad was the first Arab American nominated to the circuit court that serves the greatest Arab American population in the United States. Senator Stabenow should be taken to task for the obstruction of Judge Saad, but Republicans are also responsible. Democrat obstruction is winning by Republican neglect.
Indeed.
Posted in Circuit Courts —
Posted at 7:05pm on Mar. 23, 2006 Saad Withdraws
By DanCT
The Democrats' strategy of using obstruction to cow the GOP Senate into inaction on judicial nominees has scored another victory:
Michigan Appeals Court Judge Henry Saad has withdrawn his nomination to the federal appeals court, ending a long quest to be seated on the bench amid a partisan fight over judicial appointments.
Saad, of Bloomfield Hills, was nominated to the 6th U.S. Circuit Court of Appeals four times, most recently in 2005, but a Senate agreement reached last May made no commitment to ending the filibuster blocking his nomination. He had been opposed by Democratic Sens. Carl Levin and Debbie Stabenow.
Saad, 57, informed the White House on Wednesday that he was withdrawing his nomination, said Michigan Republican Party spokeswoman Sarah Anderson.
This is the same Henry Saad that was a target of Harry Reid's (D-Nev) unethical smear in the form of comments that there was "a problem" in the Saad's "confidential report from the FBI" and was subsequently thrown under the bus in the "Gang of 14" filibuster deal.
Posted in Circuit Courts —
Posted at 4:49pm on Mar. 23, 2006 Cheap self promotion
By Zummo
I've broken out on my own to start a new blog, the Cranky Conservative. Sports, politics, Catholicism, and the random musings of a not-quite crankycon. Check it out, if you so desire.
Posted in Uncategorized —
Posted at 8:52pm on Mar. 22, 2006 Three reasons to read the Supreme Courtââ‚â„¢s opinion in Georgia v. Randolph
By feddie
(1) Chief Justice Robertsââ‚â„¢s brilliant dissent. Seriously, folks, this guy was born to be a Supreme Court justice;
(2) Justice Scaliaââ‚â„¢s brilliant dissent, in which he ââ‚?backhandsââ‚? Justice Stevens for his pathetic attempt to discredit originalism and gives us our vocabularly word oââ‚â„¢ the day: panegyric; and
(3) Justice Thomasââ‚â„¢s dissent, in which he asks the following question: Whither stare decisis?
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 3:23pm on Mar. 22, 2006 Top three nominees
By Quin
Okay, readers, here's a VERY important poll, because some important people may be looking at it. Of the appeals court nominees now pending, which of them do you think are the three most important to be confirmed, and why? Please be thoughtful and constructive, and please be as specific as possible. And by the way, since I'm too swamped and lazy to do it, if some reader could find and post a list of the pending nominees, please do so.
By the way, my own answer begins with Brett Kavanaugh.
Posted in Uncategorized —
Posted at 8:17pm on Mar. 21, 2006 C.J. Roberts' Confirmation Testimony on Foreign Law
By AndrewHyman
In an editorial today, the Washington Post criticizes Justice Ruth Bader Ginsburg for smearing people who oppose her. The Post urges her to stop ââ‚Å“stooping to such insinuations." Indeed, it is far-fetched to believe Ginsburg's insinuation that the following words would lead to violence, or that the following words were spoken by a fan of Roger Taney:
If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.
Thatââ‚â„¢s from Chief Justice Robertsââ‚â„¢s confirmation hearing. By the way, Justice Ginsburg celebrated her 73d birthday on Wednesday, and we sincerely wish her many more.
Posted in SCOTUS —
Posted at 1:01am on Mar. 21, 2006 GOP Senate losses?
By feddie
If this scenario comes to pass, you can bet the demsââ‚â„¢ obstructionaist tactics re: President Bushââ‚â„¢s judicial nominations will only worsen.
Posted in Analysis and Predictions —
Posted at 12:42am on Mar. 21, 2006 ââ‚Å“Stuart Taylor and Originalismââ‚?
By feddie
Excellent posts by Ed Whelan and Matthew Franck on the topic over at NROââ‚â„¢s Bench Memos.
Posted in Analysis and Predictions —
Posted at 6:04pm on Mar. 20, 2006 The Senate Nominates and the Senate Confirms
By AndrewHyman
That's how it works nowadays, according to the Providence Journal:
Robert G. Flanders, a former Rhode Island Supreme Court justice, respected Providence trial lawyer and onetime Brown University football star, was nominated yesterday by Sen. Lincoln Chafee to a seat on the 1st Circuit Court of Appeals, one of the nation's most prestigious courts. If confirmed by the U.S. Senate, Flanders, 56, of East Greenwich, would replace Judge Bruce Selya, who is retiring to what federal judges refer to as "senior," or part-time, status.
Note that confirmthem previously mentioned the Selya vacancy, here. It sure would be great if the Senate would advise the President about possible appeals court nominees without trying to extort nominees from the President. The White House website doesn't indicate that anyone has yet been nominated by the President for this slot.
Hat Tip: How Appealing.
UPDATE: Until he resigned from the Rhode Island Supreme Court in 2004, Flanders was widely regarded as an "activist" judge (see Providence Journal and Washington Times). Two of his highest-profile opinions were his dissent in Almond v. Rhode Island Lottery Commission (the issue was whether legislators could be appointed to state boards and commissions), and his opinion for a divided court in Rubano v. DiCenzo (re. gay marriage and parenting).
Here's an excerpt from the Court's opinion in Almond:
Our dissenting colleague [Justice Flanders] has written a lengthy and interesting essay on political science. This essay views the structure of the Rhode Island government through the lens of a framer of the Constitution of the United States or as perceived by a member of the convention of 1787 that produced this splendid document. We might find the essay to be persuasive if we were members of a convention assembled to revise the Constitution of the State of Rhode Island. However, this Court is not the equivalent of a constitutional convention. We are not privileged to second-guess those delegates to a constitutional convention who drafted the provision relating to the supervision of lotteries in the State of Rhode Island and who reposed the power of supervision and regulation of lotteries in the General Assembly. We are not privileged to second-guess the delegates to the constitutional convention that produced the revised Constitution of 1986. We must accept their work product as it was ratified by the people of this state.
Flanders was the only dissenter in that case. Read the whole thing.
Posted in Circuit Courts —
Posted at 10:07pm on Mar. 19, 2006 Three Ways for the GOP to Improve Judicial Nominations
By AndrewHyman
Ed Whelan has an essay at the Weekly Standard making three specific suggestions to help fix the nomination process:
First, Chairman Specter should make clear that Barbara Boxer and company do not have the unprecedented power to veto President Bush's judicial nominees. Specifically, he should expressly adopt the same blue-slip policy that former chairmen Kennedy, Biden, and Hatch applied when each was dealing with a president of his own party: The return of a negative blue slip, while accorded "substantial weight," will not impede the committee from proceeding to a hearing and a vote on the nomination.
Second, Republican senators, while continuing to exert extraordinary influence on the selection of district-court nominees, should yield full nominating power to President Bush on appellate-court nominees. The work of a court of appeals judge has no particular connection to a single state, and there is no principled basis for a home-state senator to use the incidental fact of the presumed location of a vacancy to invoke any influence over the nomination to fill that vacancy. Republican senators should agree that any views they offer on appellate-court nominations are purely advisory.
Third, Specter and Majority Leader Bill Frist should press to make sure that longstanding nominees receive committee votes and final Senate action. It is, on balance, good that the David Bunnings and Milan Smiths, once nominated, proceed to confirmation. But their success should not come at the expense of nominees like Terry Boyle (nominated to the Fourth Circuit in May 2001) and Brett Kavanaugh.
Three sensible suggestions.
Posted in Judiciary Committee —
Posted at 3:14pm on Mar. 19, 2006 The Bile and Bitterness of Judicial Nominations
By AndrewHyman
Jeff Jacoby has an essay today in the Boston Globe on this subject:
Does a woman have a natural right to an abortion? May someone be helped to take his own life? Should a jury sentence a mentally retarded murderer to death? Such dilemmas are inescapably political, and the more judges presume to resolve them from the bench, the more politicized the judiciary becomes. Hence the bile and bitterness that now drench the judicial nomination process.
Twenty years ago, Scalia's nomination to the Supreme Court was approved by a unanimous Senate. Today, he says, a judge with his views -- a judge who believes that social policy should be made democratically, not dictated from on high -- could not be confirmed. That is something every democrat -- small ''d" -- should regret.
And something every advocate of judicial dictatorship should be pleased about.
Judges --- particularly judges who view themselves as superlegislators --- ought not to be immune from criticism. Senator Cornyn puts it this way: "If they are going to serve in public life like the rest of us are, they're going to have to be exposed to some criticism of their performance in office, too."
Hat Tips: How Appealing and Free Republic.
Posted in Analysis and Predictions —
Posted at 2:16pm on Mar. 17, 2006 In Case You Didn't Know
By AndrewHyman
Ninth Circuit nominee Randy Smith's committee vote has been delayed.
Florida GOP Senate candidate Katherine Harris is staying in the race, for now, even though behind in polls.
And, the issue of pro-life license plates is heating up; there are now additional circuit splits on this issue. Prospective SCOTUS nominee Karen Williams has opined that states can issue those license plates for motorists who want them, without issuing pro-choice plates too, and without violating the First Amendment. I suppose that judges who believe otherwise would also like New Hampshire to start offering license plates that say "Live Free or Whatever" (or maybe they'd require a new statue alongside the Statue of Liberty, e.g. the Statue of Obedience).
Posted in News —
Posted at 12:40pm on Mar. 16, 2006 Novak on filibusters
By Zummo
Robert Novak's column today focuses on the continued filibuster against Bush appointees, particularly 4th Circuit appointee Terrence Boyle. As he concludes:
Continued Democratic reluctance to confirm any conservative judge is expected, but the conservative movement is appalled at the lack of interest by Senate Republicans in confronting this outrage. Pressure is building from members of the Republican base who put a higher priority than their senators do on the future of the federal judiciary.
Faster, please.
Posted in Fillibuster —
Posted at 6:39pm on Mar. 15, 2006 Roberts' Performance as Chief
By DanCT
When the President has the courage to make quality picks, the impact is noted on the court. Says Ted Olson:
"One of the justices told me, 'I think that he could be one of our greatest chief justices,'" Olson says, declining to name names. "Another said, 'I think he's going to be great; he's been wonderful so far.'" Olson, a partner at Gibson Dunn & Crutcher, adds that justices speak about Roberts "as if he was born to be chief justice of the United States, much like Tiger Woods was born to be on a golf course."
The Legal Times article (Court Singing in Harmony, by Tony Mauro, March 15, 2006) is available by subscription only, but a few highlights are listed below:
Itââ‚â„¢s not the Rehnquist Court anymore. Nearly six months into his tenure as chief justice, John Roberts Jr. has begun to make his mark on the Supreme Court, fostering a sense of harmony and triggering an outbreak of unanimity among justices unseen in recent years.
Without showing any sign of compromising his conservative views, Roberts has nonetheless written three unanimous opinions himself so far and presided over a Court that was unanimous in 21 out of 29 signed rulings issued. Just as significant, only six concurring opinions have been written this term â₆a departure for justices long accustomed to writing separately to express even the slightest disgruntlement with the majority.
Obvious alternative reasons for the court to seem so harmonious thus far under Chief Justice Roberts (honeymoon period, non-controversial cases early in term) are discounted in favor of the view that Roberts' persona and keen legal mind are responsible for the change:
Roy Englert Jr. of Robbins, Russell, Englert, Orseck & Untereiner doubts that other justices are folding their cards and softening strongly held views just to give Roberts a honeymoon. Rather, he guesses that, as a recent advocate in private practice and as a former appeals court judge, Roberts can persuade justices not to write separately so often. ââ‚Å“He can discuss with them what their handiwork means to those who must apply it â₆both practicing lawyers and lower courts. So he can say that there are some consequences of frequent dissents and concurrences.ââ‚?
Also, as one of the best advocates before the Court in the modern era, Roberts knows better than most how to attract the votes of his new colleagues, one by one. ââ‚Å“Thereââ‚â„¢s a family resemblance between a brief that is trying to persuade the Court and an opinion that reflects the views of the Court,ââ‚? says Thomas Baker, a professor at Florida International University College of Law who was Rehnquistââ‚â„¢s first administrative assistant as chief justice. ââ‚Å“Someone as able as Roberts can listen carefully to his colleagues and can build and craft an opinion that brings and keeps his colleagues in the fold.ââ‚?
Rehnquist, by contrast, became chief justice after spending years as an associate justice who dissented often, Baker says. As a result, ââ‚Å“he didnââ‚â„¢t mind concurrences and dissents so much.ââ‚? Rehnquist also discouraged debate during the Courtââ‚â„¢s conferences, leaving colleagues less informed about one anotherââ‚â„¢s views. By allowing more discussion, Roberts may help them shape their opinions in a more accommodating way from the start.
And:
Mincberg also warns that Robertsââ‚â„¢ early success in unifying the Court should not obscure the fact that ââ‚Å“he continues to be a very conservative jurist.ââ‚? In Gonzales v. Oregon, one of the few cases this term that divided the Court significantly, Roberts joined Justice Clarence Thomas in a dissent written by Justice Antonin Scalia that would have upheld former Attorney General John Ashcroftââ‚â„¢s directive prohibiting Oregon doctors from prescribing drugs for use in assisted suicide.
Richard Lazarus, a professor at Georgetown University Law Center, disputes Mincbergââ‚â„¢s view, asserting that Roberts has already made it clear he is taking a non-ideological approach to his job. ââ‚Å“He is showing he is not a dismantler of precedent,ââ‚? says Lazarus. ââ‚Å“If you want to make law and push an agenda, you donââ‚â„¢t look for consensus, you look for 5-4 decisionsââ‚? that stake out new positions.
Lazarus also points to how Roberts has assigned opinions to other justices. In the abortion-related case Ayotte v. Planned Parenthood of Northern New England, Lazarus says, Roberts ââ‚Å“could have assigned it to Scalia and gotten a fragmented Court.ââ‚? Instead the assignment went to Oââ‚â„¢Connor, who avoided reviewing abortion precedents and sent the case back to lower courts, thereby avoiding making any new law or controversy.
And on Rumsfeld v. FAIR:
In the March 6 case Rumsfeld v. FAIR, concerning military recruiting on campuses, Roberts made a tricky First Amendment case look simple, partly by asserting that the First Amendment was hardly at issue and partly by leaving precedents untouched. He wrote the opinion for a unanimous Court.
Let's keep the high quality confirmations rolling. Mr. Specter, where are you?
Posted in SCOTUS —
Posted at 6:36pm on Mar. 15, 2006 Sykes, Jones good
By Quin
Forgive a little self-promotion here, but I thought y'all would find interesting my latest piece at the American Spectator. The more I see of Diane Sykes, the more impressed I am. And obviously, Edith Jones is just wonderful, and always has been.
Posted in Uncategorized —
Posted at 4:49pm on Mar. 15, 2006 Sen. Stabenow -- Dangerously Incompetent
By Marshall Manson
Acording to her very own sign.
Posted in Humor —
Posted at 5:22pm on Mar. 14, 2006 New Vacancies in the First and Third Circuits
By AndrewHyman
See here regarding Judge Bruce Selya of the First Circuit. See here regarding Judge Franklin Van Antwerpen of the Third Circuit. Hat Tip: Matthew D'Amico.
Meanwhile, Ed Whelan is disappointed in the Senate's general inaction on appeals court nominees.
UPDATE: Congress really ought to split the Ninth Circuit. The new Twelfth Circuit would cover all the states covered by the present Ninth, except California and Hawaii. Details here, courtesy of John M. Roll, a U.S. district judge in Arizona. Congressman Mike Simpson also had some interesting thoughts on the subject, on March 15, 2006. Hat Tip: How Appealing.
Posted in Circuit Courts —
Posted at 4:42pm on Mar. 14, 2006 Fein's Drivel
By AndrewHyman
In February, Bruce Fein suggested that President Bush could be impeached for conducting a boundless surveillance program. Now, Feinââ‚â„¢s written an essay about abortion that is just as absurd. I'd like to add a few thoughts to what Paul Zummo has already said about Fein's preposterous new abortion essay.
I donââ‚â„¢t have time to correct all of Fein's errors, and so will only address a few. Feinââ‚â„¢s piece is full of distortions and misstatements, and serves only to dumb down the national debate, which is quite a remarkable achievement considering how dumbed down the debate has already been. This is especially saddening, because I know that Fein can do much better.
Fein: ââ‚Å“Roe's core holding of a constitutional right to an abortion during the first trimester of pregnancy should be left undisturbed."
Reality: The "central holding" of Roe has been explained very clearly by the Supreme Court, and it has nothing to do with the first trimester:
[T]he divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.
Fein: ââ‚Å“Roe was decided 33 years ago. Its basic holding was reaffirmed in Planned Parenthood v. Casey (1992) by a 6-3 margin."
Reality: REHNQUISTââ‚â„¢S opinion was joined by WHITE, SCALIA, and THOMAS. SCALIAââ‚â„¢S opinion was joined by REHNQUIST, WHITE, and THOMAS. These four justices held together in Casey, and thus the margin was 5-4 and not 6-3.
Fein: ââ‚Å“Political prudence -- not law -- determines when a Supreme Court error should be overruledâ₦.Overruling an explosive precedent is inescapably politics by other means."
Reality: ââ‚Å“This Court, while recognizing the soundness of the rule of stare decisis where appropriate, has not hesitated to overrule earlier decisions shown, upon fuller consideration, to be erroneous.�? Ashwander v. TVA, 297 U.S. 288 (1936), BRANDEIS (concurring).
ââ‚Å“[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.�? Smith v. Allwright, 321 U.S. 649, 665 (1944).
Fein: ââ‚Å“Even as early as 1967, then Gov. Ronald Reagan signed a statutory version of Roe passed by the California legislature."
Reality: Californiaââ‚â„¢s Therapeutic Abortion Act of 1967 was vastly different from Roe. It only allowed a physiciansââ‚â„¢ committee to approve abortions in cases where there was substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the woman, and in cases of rape and incest. Also, abortions after 20 weeks gestation were flatly prohibited.
Moreover, California law does not recognize any line between the first and second trimester as morally or legally or biologically significant: "The third party killing of a fetus with malice aforethought is murder . . . as long as the state can show that the fetus has progressed beyond the embryonic stage of seven to eight weeks." People v. Davis, 7 Cal. 4th 797, 814, 30 Cal. Rptr. 2d 50, 61, 872 P.2d 591, 602 (1994).
Bruce Fein should be ashamed of himself for muddying this critically important issue with more falsities than I have time to address in this post.
UPDATE: Fein calls President Bush "a clear and present danger to the rule of law." Fein should look in the mirror.
Posted in News —
Posted at 1:23pm on Mar. 14, 2006 A muddled opinion
By Zummo
Roe is an intellectual embarrassment. The Constitution nowhere hints in its text, or history or purpose at a right to an abortion. The majority opinion was cobbled together by Justice Harry Blackman. The lion's share of research and reasoning was devoted to the medical aspects of abortion with the Constitution and intent of its makers begrudged but a cameo appearance. A consensus among constitutional scholars of all political persuasions and philosophies concurs that Roe invented abortion rights in lieu of interpreting the Constitution.
Bruce Fein makes an argument that I'm confident most people reading this would agree with. Yet Bruce Fein's opinion piece today is an intellectual muddle, and a disappointment considering the author.Roe is an abomination - "wretchedly reasoned," he writes. And yet
But Roe's core holding of a constitutional right to an abortion during the first trimester of pregnancy should be left undisturbed.
Oh Feddie, you're gonna love the reasoning on this one.
Political prudence -- not law -- determines when a Supreme Court error should be overruled. Time, individual reliance and expectation interests, broad public support for a right to choose during early stages of pregnancy, and the conspicuous neglect of pro-life Republican Congresses and presidents to champion an anti-Roe constitutional amendment all militate in favor of retaining its core. So does the strong interest in legal finality. That would leave the vast majority of abortion decisions subject to the prevailing constitutional framework.
Got it. Roe is an intellectual embarassment. It is poorly reasoned and has no constitutional basis. But it should stand because . . . a lot of people support abortion and the Republican Congress has not done enough to promote pro-life constitutional amendments.
Umm, right.
The agonizing thing about this column is that it appears Fein is himself conflicted, as if he were trying to convince himself more than the audience that Roe should be permitted to stand. For instance he writes:
But whether the precedent should be overruled in whole or in part presents a different question. Constancy in the law fortified by the doctrine of stare decisis protects reasonable reliance, planning and expectation interests and avoids re-litigation of questions previously settled.
On the other hand, leaving ill-conceived precedents uncorrected distorts the Constitution and tends to breed more misinterpretations. As Justice Louis D. Brandeis sermonized, the process of trial and error so productive in the quest for scientific knowledge has a role also in the judicial function. Thus, the Supreme Court has overruled hundreds of cases. But no coherent standards have emerged for determining whether an overruling is justified.
So which is it Bruce? Should we revere stare decisis, or should we overrule bad decisions that "distort the Constitution?" Curiously, Fein proposes a standard which should make anyone who reveres the rule of law cringe with disgust.
Militating against an overruling is the opportunity for the political branches to reverse a precedent via a constitutional amendment requiring a two-thirds vote of Congress and ratification by three-fourths of the states. The amendment process has been employed to overrule decisions concerning state immunity, slavery, racial equality, citizenship, suffrage and the income tax. But if a wrong decision adversely affects a politically vulnerable group, the case for overruling is stronger because a cure through an amendment would be improbable.
Racial minorities, for example, could never have reversed the odious separate-but-equal doctrine of Plessy in 1954 when the case was overruled by marshalling supermajorities in Congress and a supermajority of the states, including the solid South.
You see, it was okay for the Supreme Court to overrule Plessy because African-Americans did not have enough political clout to overrule it via the amendment process. That might make sense on some level, but Fein completely contradicts himself over the course of the next several paragraphs:
In contrast, pro-choice organizations command impressive political clout. They are not handicapped in campaigning or advocating their views. If Roe were overruled, they would probably prevail in retaining most of Roe's abortion rights by enacting pro-choice statutes in a substantial majority of states.
Even as early as 1967, then Gov. Ronald Reagan signed a statutory version of Roe passed by the California legislature. South Dakota's recent enactment affecting but a tiny fraction of the national population is an aberration.
But the political landscape also militates against an overruling. Pro-life Republican-controlled Congresses have declined to push to an amendment that would overrule Roe. And President George W. Bush, soon after his first inauguration, announced the nation was not ready for such a wrench in abortion rights.
If the nation's political branches representing all of the states are complacent with Roe, the need for the Supreme Court to correct the error seems less urgent.
So, let me get this straight. Pro-choicers have substantial political clout and thus Roe should . . . stand? I don't get it. Fein has just made the argument that the case for disregarding stare decisis is strongest when the affected parties lack political clout, and yet he's making a completely different argument here. Doesn't the relative strength of the pro-choice movement argue in favor of reversing Roe, especially when those pro-choicers are essentially guaranteed that abortion rights will be upheld in most states? Fein seems to suggest that it does, but then he claims that the failure of a Republican DC establishment to push for a pro-life amendment "militates against an overruling." But which is it, Bruce? You've just argued throughout the piece that the pro-choice position is strongest, especially when it comes to first-term abortions. Suddenly it is the pro-life position which is politically stronger? Furthermore, Fein completely ignores previous historical pushes for pro-life amendments that have repeatedly failed. The political process has been tried and has proven to be a dead-end. This fact actually bolsters the argument that Roe should be overruled, at least in light of the standard Fein proposes for disregarding stare decisis.
Fein caps this maddening column with more wish-wahsiness.
On the other hand, Roe continues creating constitutional havoc because its right-to-privacy rationale commands no principled stopping point. That chaos militates in favor of an overruling. It has been instrumental in depriving parents of customary authority over minors, and overturning laws calculated to force women to give sober second thoughts about the ramifications of abortion. The precedent was summoned to justify a right to homosexual sodomy in Lawrence v. Texas (2003). It has been invoked to challenge laws against same-sex "marriage," polygamy, obscenity and marijuana. Deciding how far to extend Roe has been an exercise in judicial whimsy unbefitting the rule of law.
Based on a totality of considerations, the Supreme Court should displease both pro-choice and pro-life exponents in re-examining Roe by overruling its rationale but affirming its first trimester holding. The result would be intellectually untidy but constitutionally defensible. Overruling an explosive precedent is inescapably politics by other means.
I don't know what to say. An opinion column that uses the phrase "on the other hand" no less than three times is an exercise in futility. Again, it seems as though Fein is not really convinced of his own argument.
He's not the only one.
Posted in Analysis and Predictions —
Posted at 8:19pm on Mar. 13, 2006 Florida
By AndrewHyman
The ability of the GOP to continue confirming judges like Roberts and Alito may be determined by none other than Katherine Harris, who's thinking about making way for a stronger challenger to incumbent Sen. Bill Nelson. Details here. Redstate urges withdrawal. I doubt she'll pull out unless she knows she's blocking someone who'd run and win (e.g. Jeb Bush, Tommy Franks, Charlie Crist, or Tom Gallagher).
Posted in News —
Posted at 4:29pm on Mar. 13, 2006 Hearing Tomorrow
By AndrewHyman
There will be a hearing tomorrow for Third Circuit nominee Michael Chagares.
Also, former Mississippi Supreme Court Justice Reuben Anderson praises the nomination of Michael Wallace for the Fifth Circuit. Hat Tip: Bench Memos.
Posted in News —
Posted at 8:49pm on Mar. 11, 2006 A Happy Prospect
By AndrewHyman
Terry Eastland has a nice column in the Weekly Standard about Chief Justice Roberts. Read it here. Eastland concludes:
The distinction between law and politics isâ₦ precisely what Roberts (and Samuel Alito) insisted upon during their confirmation hearings, and it lies at the heart of judicial conservatism. The prospect of the continuing advancement of that philosophy is a happy one, and a reason to say hail to this particular chief.
Posted in Analysis and Predictions —
Posted at 7:47pm on Mar. 11, 2006 Claude Allen News
By AndrewHyman
The former judicial nominee has been arrested for allegedly shoplifting. As Mary Katharine Ham says, "if he turns out to be guilty, this is just shameful, surprising, and downright trashy....I've never understood what could drive otherwise successful people to do stuff like this."
Posted in News —
Posted at 7:09pm on Mar. 11, 2006 The Kavanaugh Obstruction
By Marshall Manson
Earlier, Andrew posted about Senate Dems' demand to hold another hearing on Brett Kavanaugh's nomination to the D.C. Circuit. It's hard to imagine a more abvious example of overt Democratic obstruction. I attended Mr. Kavanaugh's first confirmation hearing in 2004. Sat through the whole thing. The Dems asked some questions, but, as is their practice, mostly fed their appetite for grandstanding. They asked almost nothing of substance. After a partial round of questionning (most Senators didn't bother to show up), the hearing ended.
So why have another hearing? There's only one possible answer: delay. But if the Alito hearings demonstrated anything, it's that the American people have had enough of the Democrats grandstanding on judicial confirmations. Chuck Schumers' theory (crafted with aid and comfort form Laurence Tribe among others) that ideology should be a part of hearings was soundly drubbed. Brett Kavanaugh is more than sufficiently qualified. He has an excellent background. It's time for the Senate to get busy confirming him.
And I agree with Andrew. One the surface, last year's deal should only enhance his chances. But the lack of pregress on appellate court nominees makes me wonder if there weren't additional elements to the deal agreed on between Senators behind closed doors.
Whatever the reason for the delay, it's time to get the process moving again. The Senate has a job to do. It should do it.
Posted in District Courts —
Posted at 11:05pm on Mar. 10, 2006 O'Connor and Kennedy on Judicial Independence
By AndrewHyman
Retired Justice Oââ‚â„¢Connor hit the lecture circuit on Thursday:
"Statutes and constitutions do not protect judicial independence ââ‚“ people do," O'Connor told lawyers at Georgetown's Corporate Counsel Institute. "We must be ever vigilant against those who would strong-arm the judiciary."
Her pleas for judicial independence would be more compelling if sheââ‚â„¢d also acknowledge the need for legislative independence. After all, each of the branches of government is supposed to be separate from the others. O'Connor's not the only judge who has given short shrift to legislative independence. Hereââ‚â„¢s Justice Kennedy, speaking in 1998:
In the federal confirmation process, a standard question from the judiciary committee is, ââ‚Å“Well, if youââ‚â„¢re confirmed will you legislate?" And, with a look of horror, the nominee says, ââ‚Å“Oh, I wonââ‚â„¢t legislate." Well, what about the law of contract and tort â₆where do they think it came from, the stork?
Obviously, the Senatorsââ‚â„¢ question is whether judges will legislate so as to control the Senators and control the rest of the government. In contrast, tort and contract law have always been modifiable by legislators.
Justice Kennedy himself has created legislation that he demands Congress obey, without having derived that legislation from any reasonable implication of the Constitution. So has former Justice Oââ‚â„¢Connor. I'd say that the American people have been remarkably placid about that assault on legislative independence.
Posted in Analysis and Predictions —
Posted at 3:29pm on Mar. 10, 2006 Roberts Speech
By AndrewHyman
The Chief Justice gave a nice speech on Wednesday at the Reagan Library. Click here to watch (Windows Media Player required). Hat Tip: How Appealing.
Posted in News —
Posted at 5:48pm on Mar. 9, 2006 A Couple Interesting Quotes
By AndrewHyman
Chief Justice John Marshall wrote this in 1803:
[I]t is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
That's from Marbury v. Madison 5 US 137. Compare what Justice Stephen Breyer said earlier this week:
Breyer said he thinks of the Constitution as a living document that changes as citizens' "discussions bubble up into the court system."
That's from Justice Breyer's Albritton Lecture at the University of Alabama Law School (March 6, 2006).
I'd like to learn how to bubble more effectively. Do all citizens have an equal right to bubble? How can the courts be governed by a living document that can be so easily changed by the courts themselves? Has bubbling eliminated the need for constitutional amendments? Can Congress and state legislatures bubble? How about Europeans and Ugandans? Once the bubbling has occurred, and the Constitution has been changed accordingly, does stare decisis make it difficult for further bubbling to restore the original, actual Constitution? Are a lot of tiny bubbles as effective as a few big bubbles? Why should a minority of bubbles be able to defeat a majority of bubbles?
Posted in News —
Posted at 9:50pm on Mar. 8, 2006 Congratulations are in order
By krempasky
Last night, much to my very pleasant surprise, I learned that ConfirmThem was named as one of five finalists in TWO categories at the Golden Dot Awards - hosted by the Institute for Politics, Democracy, and the Internet at George Washington University.
We made the finals for "Impact Moment of the Year" and "Blog of the Year."
I think they were both well deserved accolades - and many thanks to the authors here at the site who made it all happen.
Alas, in the end we didn't win - but that's ok. We got jobbed by good company. Congratulations to the winner of the Impact Moment, National Review's Bench Memos. And a big fat bucket of kudos to my friend Jim Joyner who took home (or would have, had he been in attendance) a well-deserved Golden Dot for "Blog of the Year."
Posted in Administrative —
Posted at 11:18pm on Mar. 7, 2006 Payne Withdrawal
By AndrewHyman
For background info, see here.
UPDATE: More info here. Hat Tip: How Appealing.
Posted in News —
Posted at 5:35pm on Mar. 7, 2006 Not Taking Advantage of the Deal
By AndrewHyman
The list of circuit nominees over at the right-hand-side of the confirmthem home page has just been updated to provide more info. It seems a shame that the Senate GOP is not taking full advantage of "The Deal" regarding filibusters. The following appeals court nominees haven't been scheduled for Judiciary Committee votes, and yet all of them were nominated after the deal was signed, and all of them would fill emergency vacancies: Michael Chagares, Sandra Ikuta, Milan Smith, Randy Smith, and Michael Wallace. WHY SO SLLLLOOOOW? There are no conceivable "extraordinary circumstances" for any of these five nominees. Can't each of them be scheduled for a committee vote?
There are four other emergency vacancies in the appeals courts for which no one has yet been nominated, but why should Pres. Bush nominate anyone if they won't even get committee votes? Those four emergency vacancies are to replace appeals court judges Murnaghan (4th Cir.), Nygaard (3d Cir.), Alito (3d Cir.), and Neilson (6th Cir.).
Although the Kavanaugh nomination wouldn't fill an emergency vacancy, Kavanaugh seems to fall within the terms of The Deal, seeing as how he was newly nominated months after The Deal was struck. No one has seriously suggested that there are any "extraordinary circumstances" regarding Kavanaugh. So why doesn't the Senate Judiciary Committee give him a vote?
The other pending appeals court nominees were nominated before The Deal took effect, but several of them were not explicitly excluded from The Deal. So why can't someone like Terrence Boyle get a vote on the floor of the Senate? Because he's still alive and breathing?
Here's what Senator Specter said on November 10, 2004:
I am committed, in word and deed, to prompt action by the Judiciary Committee. Last April, I introduced Senate Resolution 327, a protocol to establish prompt action on all judicial nominees. Specifically, my protocol provides that all nominees will have a Judiciary Committee hearing within 30 days of nomination, a Judiciary Committee vote within 30 days of the hearing, and a floor vote 30 days later.
Related Story: "Tension Builds At The Final Of The World Watching-Paint-Dry Championship."
Posted in Circuit Courts —
Posted at 1:37am on Mar. 7, 2006 Kavanaugh's "Conformation" Hearings
By AndrewHyman
Last Friday, "Senate Democrats renewed their call for another hearing on Kavanaugh," according to this article in Legal Times. Kavanaugh already had a hearing on April 27, 2004 in connection with his previous nomination to the DC Circuit; the text of that hearing is here, and the pdf is here. Both the text and the pdf use the word "conformation" in the title, instead of the word "confirmation." What a telling misspelling that is.
Ed Whelan thinks that the Gang of 14 Deal will smooth rather than impede Kavanaugh's confirmation.
Posted in Circuit Courts —
Posted at 4:19pm on Mar. 5, 2006 Open Thread
By AndrewHyman
Almost anything goes.
Posted in Open Threads —
Posted at 4:02pm on Mar. 5, 2006 The "California Seat"
By AndrewHyman
Randy Smith of Idaho has been nominated to succeed Stephen Trott on the Ninth Circuit. Senator Feinstein says it's a "California seat" and therefore she says the Smith nomination should be withdrawn. Actually, it doesn't seem like a California seat at all.
Below the fold is biographical info about Smith (born and educated in Utah) and about each of the judges who have held the seat on the Ninth Circuit for which Smith has been nominated: Stephen Trott (born in New Jersey, educated in New England), Joseph Sneed (born in Texas, educated in Texas and Massachusetts), Frederick Hamley (born and educated in Washington), Homer Bone (born in Indiana, educated in Washington), and Bert Haney (born and educated in Oregon).
Birth:1949 Logan, Utah
Legal Residence: Idaho
Education:
1970 - 1974 Brigham Young University B.S. degree
1974 - 1977 J. Reuben Clark School of Law, Brigham Young University J.D. degree
Bar Admittance:1977 Idaho
Experience:
1977 - 1981 J.R. Simplot Company Associate/Assistant General Counsel
1979 - 1981 Boise State University Adjunct Professor
1982 - 1995 Merrill & Merrill, Chartered Associate,
1982-1984 Partner, 1984-1995
1984 - present Idaho State University Adjunct Professor
1995 - present State of Idaho Sixth Judicial District District Judge
Born 1939 in Glen Ridge, NJ
Federal Judicial Service:
U. S. Court of Appeals for the Ninth Circuit
Nominated by Ronald Reagan on August 7, 1987, to a seat vacated by Joseph Tyree Sneed, III; Confirmed by the Senate on March 24, 1988, and received commission on March 25, 1988. Assumed senior status on December 31, 2004.
Education:
Wesleyan University, B.A., 1962
Harvard Law School, LL.B., 1965
Professional Career:
Los Angeles County District Attorney's Office, 1966-1981
Chief, 1975-1979
U.S. Attorney for the Central District of California, 1981-1983
Assistant attorney general, Criminal Division, U.S. Department of Justice, 1983-1986
Associate attorney general, 1986-1988
Race or Ethnicity: White
Gender: Male
Born 1920 in Calvert, TX
Federal Judicial Service:
U. S. Court of Appeals for the Ninth Circuit
Nominated by Richard M. Nixon on July 25, 1973, to a seat vacated by Frederick G. Hamley; Confirmed by the Senate on August 3, 1973, and received commission on August 24, 1973. Assumed senior status on July 21, 1987.
Education:
Southwestern University, B.B.A., 1941
University of Texas School of Law, LL.B., 1947
Harvard Law School, S.J.D., 1958
Professional Career:
U.S. Army Air Corps Staff Sergeant, 1942-1946
Faculty, University of Texas Law School, 1947-1957
Assistant professor, 1947-1951
Associate professor, 1951-1954
Professor, 1954-1957
Private practice, Austin, Texas, 1954-1956
Professor of law, Cornell University, 1957-1962
Professor of law, Stanford University, 1962-1971
Dean, professor of law, Duke University, 1971-1973
Deputy attorney general of the United States, 1973
Race or Ethnicity: White
Gender: Male
Born October 24, 1903, in Seattle, WA
Died May 5, 1975
Federal Judicial Service:
U. S. Court of Appeals for the Ninth Circuit
Nominated by Dwight D. Eisenhower on May 22, 1956, to a seat vacated by Homer Truett Bone; Confirmed by the Senate on June 29, 1956, and received commission on July 2, 1956. Assumed senior status on July 6, 1971. Service terminated on May 5, 1975, due to death.
Education:
University of Washington, B.A.
University of Washington School of Law, LL.B., 1932
Professional Career:
Private practice, Seattle, Washington, 1932-1938
Superintendent, Seattle Water Department, Washington, 1938
Assistant district counsel, U.S. Bureau of Reclamation, Coulee Dam, 1938-1940
Special assistant state attorney general/legal advisor to the governor, State of Washington, 1940-1941
Director, Department of Public Service, State of Washington, 1941-1943
Assistant general solicitor, National Association of Railroad and Utilities Commissioners, 1943-1945
General solicitor, National Association of Railroad and Utilities Commissioners, 1945-1949
Justice, Washington State Supreme Court, 1949-1956
Chief justice, 1955-1956
Race or Ethnicity: White
Gender: Male
Born January 25, 1883, in Franklin, IN
Died March 11, 1970, in Tacoma, WA
Federal Judicial Service:
U. S. Court of Appeals for the Ninth Circuit
Nominated by Franklin D. Roosevelt on April 1, 1944, to a seat vacated by Bert E. Haney; Confirmed by the Senate on April 1, 1944, and received commission on April 1, 1944. Assumed senior status on January 1, 1956. Service terminated on March 11, 1970, due to death.
Education:
Tacoma Law School, 1911
Professional Career:
Private practice, Tacoma, Washington, 1911-1932
Special deputy prosecuting attorney, Pierce County, Washington, 1912
Corporation counsel, Port of Tacoma, Washington, 1918-1932
Member, Washington State House of Representatives, 1923-1924
U.S. Senator from Washington, 1933-1944
Private practice, San Francisco, California, 1956-1968
Race or Ethnicity: White
Gender: Male
Born April 10, 1879, in Lafayette, OR
Died September 18, 1943
Federal Judicial Service:
U. S. Court of Appeals for the Ninth Circuit
Nominated by Franklin D. Roosevelt on August 21, 1935, to a new seat created by 49 Stat. 508; Confirmed by the Senate on August 23, 1935, and received commission on August 24, 1935. Service terminated on September 18, 1943, due to death.
Education:
University of Oregon Law School, LL.B., 1903
Professional Career:
Private practice, Portland, Oregon, 1903, 1908-1918, 1920-1923, 1926-1935
Deputy district attorney, 4th Judicial District of Oregon, 1904-1908
Charirman, Oregon Democratic State Committee, 1910-1915
U.S. Attorney for the District of Oregon, 1918-1920
Chairman, State Board of Pardons and Paroles, 1922-1923
Member, U.S. Shipping Board, 1923-1926
Race or Ethnicity: White
Gender: Male
Posted in Circuit Courts —
Posted at 7:23pm on Mar. 4, 2006 Feinstein Wants the Potatoes, But Not the Judges
By AndrewHyman
Currently, no active judges from Idaho are serving on the Ninth Circuit Court of Appeals. Two Idahoans have been nominated: William Myers and Randy Smith, but Sen. Feinstein has filibustered Myers, and placed a hold on Smith. Feinstein's only stated reason for opposing Smith is his place of residence. So, I suggest that Smith move to California until he's confirmed.
Federal judges aren't supposed to represent anyone, but rather are supposed to decide cases according to the law. That's why no statute or rule requires that any particular state should get any particular number of judges on any particular court. The president is supposed to nominate the best judges, no matter what states they're from.
Currently, California has less than 13% of the U.S. population, yet has more than 22% of the U.S. Supreme Court justices: Justice Breyer was born in San Francisco, and Justice Kennedy was born in Sacramento. If Sen. Feinstein were consistent, she wouldn't want the next U.S. Supreme Court nominee to be from California.
Idaho currently has 0% of active judges in the Ninth Circuit, and 0% of active judges on the U.S. Supreme Court. In fact, not one U.S. Supreme Court Justice in the history of the country has been from Idaho.
Posted in Circuit Courts —
Posted at 5:15pm on Mar. 4, 2006 Political Ethics Flap in WV
By krempasky
Let me first be clear: I like it when people give to campaigns. I think it's a good and appropriate way to be involved in the policy process. No one who knows me would even begin to describe me as a chicken little screaming about the corrupting influence of money.
Now, that said...allegations about quid pro quo donations, cronyism, and at least one illegal foreign donation are starting to percolate around the 2004 campaign of WV Attorney General Darrell McGraw. It doesn't look good.
The Charleston, WV law firm of DiTrapano, Barrett & DiPiero, and their family members, contributed $30K to the campaign. The attorneys in the firm maxed out their contributions and several family members of these lawyers chipped in as well. One donation in particular from a Carlo DiTrapano, a first cousin of Rudolph DiTrapano, Carla McGoldrick, Evelyn DiTrapano and Virgil Trapano for $1,000 is under scrutiny because his address is listed as Provincincia Latina, Sezze, Italy.
The FEC tends to frown on the foreign donation thing. It is possible that DiTrapano is a United States citizen, or has a green card, but that question hasn't been answered yet.
More disturbing, however, was the decision made by Attorney General McGraw to file a lawsuit for $10 milliion using the managing partner of DiTrapano, Barrett & DiPiero, Rudolph DiTrapano. DiTrapano was one of three attorneys contracted by McGraw to participate in this lawsuit. David Brumfield, a $1,500 donor, also was a contributor but William Druckman did not contribute to McGraw's campaign.
The West Virginia Citizens Against Lawsuit Abuse chapter exposed this questionable state of affairs and naturally, there are threats of lawsuits in the air in response.
The questions about the relationships and the donations between the DiTrapanos and the McGraw campaign should be answered. At the very least, it just doesn't look good and at the worst, it stinks to high heaven. Either way, a little sunshine would go a long way.
Posted in News —
Posted at 2:51pm on Mar. 2, 2006 "When Justices Refuse to Retire"
By AndrewHyman
That's the title of a Boston Globe article from last year. Here's an excerpt:
Hugo Black once told his clerks that justices who stay in office longer than they should ''impose terrible burdens" on their colleagues. But he didn't take his own advice, refusing to resign even when a stroke had wrecked his memory and ability to concentrate. A stroke debilitated William O. Douglas's mental abilities, too. In his last years on the bench, he addressed people by the wrong names, spoke in non sequiturs, and dozed during oral arguments.
Of course, some cases are so boring that you have to wonder why judges don't doze off more often than they do. Patterico suggested today that Supreme Court reporters should be giving us more snooze alerts, so we'll know which judges are evaluating arguments and which judges are evaluating figments.
UPDATE: It's perhaps worth noting that Chief Judge Edith Jones of the Fifth Circuit has been criticized for opining that a defendant who had a sleeping attorney need not get a new trial. Is a sleeping attorney really any worse than a sleeping judge? Speaking of the Fifth Circuit, nominee Michael Wallace is in the news today (and the ABA has taken the unusual step of lowering the rating for Tenth Circuit nominee James Payne).
UPDATE #2: Howard Bashman wishes that some of the more talkative justices would catch some z's during the oral arguments.
Posted in Analysis and Predictions —
Posted at 2:05pm on Mar. 1, 2006 Dance Contest Instead of Senate Nomination Hearings
By AndrewHyman
TeaCupMammoth makes the humorous proposal, here.
Posted in Humor —
Posted at 2:43pm on Feb. 28, 2006 Hearing Tomorrow
By AndrewHyman
On March 1, the Senate Judiciary Committee will be considering the nomination of N. Randy Smith, now a state trial judge in Idaho, for a position on the Ninth U.S. Circuit Court of Appeals.
UPDATE: Leahy comments about the Randy Smith nomination, as detailed by Bashman.
UPDATE #2: Feinstein comments about the Randy Smith nomination. I suppose that if Bush nominated a Californian to replace an Idahoan, while nominating an Idahoan to replace a Californian, then Senators Feinstein and Leahy would go berserk until Bush switched the nominees.
UPDATE #3: Howard Bashman has more developments about the Randy Smith nomination, here.
Posted in Circuit Courts —
Posted at 7:36pm on Feb. 27, 2006 New Books Describe the O'Connor and Souter Nominations
By AndrewHyman
At the New Republic, David Garrow has a review of a new book about Justice O'Connor by Joan Biskupic, and a new book about Justice Souter by Tinsley Yarbrough. Garrow's review includes some info about their respective nominations. Here are the relevant excerpts:
Kenneth W. Starr was a gullible and slipshod investigator. No, not in his all-too-thorough probe of Bill Clinton's dalliance with a White House intern, but seventeen years earlier, when he was the Reagan administration's point man in the background vetting of a Supreme Court nomineeâ₦.Reagan had won the presidency as a fervent right-to-life supporter, and O'Connor was asked directly for her views. "She told Reagan she was personally against abortion," Joan Biskupic reports in her superbly thorough and perceptive biography. "She said she considered the procedure 'abhorrent.'"
When O'Connor's name was leaked to reporters as a possible nominee, anti-abortion activists objected, citing concerns about O'Connor's position as an Arizona state senator in 1970 on a bill that would have decriminalized abortion. The measure never came to a floor vote, but O'Connor had served on the committee that considered it. "There is no record of how Senator O'Connor voted, and she indicated that she has no recollection of how she voted," Starr wrote in a memo to Smith. Reagan and his advisers discounted the abortion opponents' complaints, and on July 7 the president announced O'Connor's selection. Journalists asked if he had personally confirmed O'Connor's right-to-life sentiments, and Reagan answered "yes." He was "completely satisfied."
But Starr had committed a huge error. On April 29, 1970, O'Connor had voted to repeal Arizona's anti-abortion law, and two prominent Phoenix newspapers publicly reported her vote. When asked by Biskupic to explain his oversight, "Starr said he had no reason to check local newspapers to see if her vote had been recorded. If Starr had taken such a step he would have discovered that the proposed legislation was front-page news and the subject of considerable controversy in Arizona eleven years earlier--and that O'Connor had voted for the measure to decriminalize abortion." Instead of undertaking his own independent inquiry, Biskupic observes, "Starr had taken O'Connor's word for everything." In so doing, he had smoothed her way to a nomination that almost certainly would have been denied her had those old news clippings been discoveredâ₦.
[M]any observers wrongly viewed Souter's selection as the handiwork of White House Chief of Staff John Sununu, a former New Hampshire governor who had promoted Souter from the trial bench to the state Supreme Court in 1983. But as anyone knowledgeable about New Hampshire Republican politics recognized, Souter was actually the protégé of Senator Warren Rudman, a decidedly moderate Republican, who had energetically recommended him to President Bush. Years earlier, as New Hampshire's attorney general, Rudman had named Souter his deputy. He then arranged Souter's appointment as his own successor and later to a series of judgeships, culminating with Souter's confirmation to a seat on the U.S. Court of Appeals for the First Circuit earlier in 1990.
For anyone willing to acknowledge the facts, Yarbrough's account of Souter's nomination sets the record straight. Bush himself told reporters at the time that "there was almost a certain recusal on the part of Governor Sununu" during the selection process, and soon thereafter Senator Rudman firmly warned that "it would be a mistake to associate this nomination in any way with John Sununu. John Sununu did not know David Souter at the time that he appointed him to the New Hampshire Supreme Court, other than casually." Indeed, Sununu appointed Souter as payment of a political debt to Rudman, and Sununu's famous claim that Souter's Supreme Court nomination represented a "home run" for conservatives was a bit of right-wing braggadocio that he has never managed to live downâ₦.
Five years ago Sununu acknowledged feeling "a lot of disappointment in where David Souter has ended up on the Court," and more recently Sununu broadened his complaint. "Souter is absolutely different from what Souter and Souter supporters represented he was, not only during the vetting process but during his whole career," he told Legal Times. "Everybody is disappointed, and with all due respect to those who were not, they were part of the deceptionâ₦."
The bit about O'Connor's alleged lapse of memory regarding her Arizona Senate record reminds me of a similar episode involving Justice Kennedy. Jesse Helms had a one-on-one interview with Kennedy who had just been nominated. Helms said, ââ‚Å“I think you know where I stand on abortion." Kennedy responded, ââ‚Å“Indeed I do and I admire it." Little did Helms suspect that Kennedy would in fact prevent Helms (and 72% of American women) from implementing their allegedly admirable stands on this issue.
But I guess some people consider it fair play to fiddle with the truth, as long as the ultimate goal is to cement the Supreme Court's transformation into a nightmarish and unaccountable superlegislature. The idea that five superlegislators are generally entitled to impose their own morality --- or the morality of their predecessors --- upon hundreds of millions of people does not have a real justification in the Constitution.
Hat Tip: How Appealing.
UPDATE: Just to clarify, the information which Starr overlooked was later aired at O'Connor's Senate hearing. However, the main question is whether she would have been nominated in the first place if that information had been provided to the White House.
Posted in SCOTUS —
Posted at 1:55pm on Feb. 21, 2006 Big News: Supreme Court Takes Nebraska Partial Birth Abortion Case
By Marshall Manson
Joe Cella posts over at RedState:
It was announced in the last hour that the Supreme Court agreed to hear the Nebraska Partial Birth Abortion case, Gonzales v. Carhart.
You can read the story here. After the Roberts court (without Justice Alito) returned Ayotte to the lower court, this will be the first significant case on abortion the newly consituted court will consider.
Numerically speaking, with Justice Kennedy dissenting in the court's 2000 ruling on Stenberg v Carhart, a majority should exist to overturn that ruling.
This will certainly amplify the abortion issue in the 2006 elections and increase the chatter about the prospects of another vacancy on the court.
Posted in News —
Posted at 5:42pm on Feb. 20, 2006 Winter Recess
By AndrewHyman
I'll be cutting back on blogging for awhile, although my co-bloggers will still be posting, and hopefully our commenters will still be commenting. In the mean time, don't forget that judges are entitled to both apply the law AND change the law:
"We must never lose sight of the fact that the law has a moral foundation, and we must never fail to ask ourselves not only what the law is, but what the law should be."
---Justice Anthony Kennedy, quoted in Richard C. Reuben, ââ‚Å“Man in the Middle," California Lawyer, October 1992 at 35.
Or maybe not:
"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." Constitution (first sentence of first section of first article).
It is "the peculiar province of the legislature to prescribe general rules for the government of society..." Fletcher v. Peck, 10 U.S. 87, 136 (1810).
Judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." George Mason, 2 RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., Yale Univ. Press 1927) (1911) at 78.
A court of equity generally ââ‚Å“cannot interpose in any case against the express letter and intention of the legislature. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged." Thomas Jefferson, 1785
"It is blindingly clear that judges have no greater capacity than the rest of us to determine what is moral." Justice Antonin Scalia (August, 2005)
Later.
Posted in Analysis and Predictions —
Posted at 1:40pm on Feb. 19, 2006 Sunday Notes
By AndrewHyman
Ethan Leib at Prawfsblawg registers his disagreement with Bruce Ackerman. Leib says that Roberts and Alito are not --- as Ackerman says --- "stealth nominees whose public records provided few clues as to future performance."
Earlier this month, Judith Niewiadomski had a good review of Judge Charles Pickering's book "Supreme Chaos." Check it out if you haven't already.
The Hill reported this week that the Department of Justice is negotiating with the Senate's legal counsel to obtain public documents related to the Estrada nomination two years ago. For more info, see Manuel Miranda's web site. By the way, congratulations to Manny for his recent Ronald Reagan Award.
And, Paul Weyrich discusses a possible third Supreme Court vacancy.
UPDATE: AP reports that Idaho has seats on the Ninth Circuit that California wants. Hat Tip: How Appealing.
Posted in News —
Posted at 2:31pm on Feb. 18, 2006 "Parsing Alito's Clerk Picks"
By feddie
Tony Mauro's latest in the Legal Times. Here's an excerpt:
Two of Justice Samuel Alito Jr.'s former law clerks stopped in at his chambers earlier this month to congratulate him on winning confirmation.
Alito was so happy to see them, apparently, that he offered them jobs on the spot. He asked Hannah Smith, a Williams & Connolly associate, and Jay Jorgensen, a partner at Sidley Austin, to serve as his law clerks this term. Both, after clerking for Alito, had subsequent high court experience -- Jorgensen clerked for the late Chief Justice William Rehnquist and Smith for Justice Clarence Thomas -- and that was exactly what Alito needed.
Posted in SCOTUS —
Posted at 3:01am on Feb. 18, 2006 Sabato on the 2006 Senate Elections
By AndrewHyman
On January 26, Larry Sabato had an informative column forecasting the 2006 Senate races. He concluded: "Democrats are a good bet to pick up two or three seats net." I think that any Democratic pickup would more likely be one seat, and there might well be no Democratic pickup at all. What do you think?
Posted in News —
Posted at 9:06am on Feb. 17, 2006 Friday Open Thread
By feddie
Have at it, folks.
Oh, and if any of y'all has a topic/issue that you believe should be covered by a separate post, just shoot me an email, and I will try to accomodate the request.
Posted in Administrative —
Posted at 4:57am on Feb. 16, 2006 Wikipedia Messes With Kavanaugh
By AndrewHyman
The Wikipedia page for Brett Kavanaugh has been hit by vandals. Thanks to one of our readers for emailing about this. Perhaps another one of our readers would volunteer to go straighten out the Wikipedia page?
UPDATE: The Wikipedia site is now fixed, at least for the time being. Thanks.
Posted in News —
Posted at 4:43pm on Feb. 15, 2006 And so it begins
By feddie
The smear campaign against Mike Wallace has started in earnest.
Posted in Circuit Courts —
Posted at 11:27am on Feb. 15, 2006 "Alito Hires as a Clerk Former Ashcroft Aide"
By feddie
Heh. I think they call this "rubbing salt in the wound."
On another matter (shameless bleg alert), my other blog, Southern Appeal, has been nominated in three categories for the Catholic Blog Awards. If you are so inclined, I would certainly appreciate the support, as SA is up against some fairly big names in the Catholic blogosphere.
Posted in SCOTUS —
Posted at 10:15pm on Feb. 14, 2006 Tuesday Evening Odds and Ends
By AndrewHyman
Milan D. Smith, Jr., of California, has been nominated to be United States Circuit Judge for the Ninth Circuit.
Retired judge Charles Pickering will be giving a speech tomorrow that will be accessible via internet.
The Judiciary Committee will be considering some district court nominees tomorrow. How about appeals court nominees?
Quote of the day, courtesy of Simon Dodd: "Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind." - Turner v. United States, 396 U.S. 398, 426 (1970) (Black, J., dissenting).
Some of our commenters have been urging that Janice Rogers Brown be nominated if there's a SCOTUS vacancy soon. However, it might be better to urge that Priscilla Owen be nominated instead. After all, the cloture vote for Judge Brown was 65 to 32 on June 7, 2005. In contrast, the cloture vote for Judge Owen was 81 to 18 on May 24, 2005. In other words, Owen was more popular with Senators.
Posted in News —
Posted at 10:55pm on Feb. 13, 2006 Alexander Bolton on Circuit Nominees
By AndrewHyman
The Hill has an article on February 14 titled, "Rightââ‚â„¢s push on judges is resumed."
Posted in News —
Posted at 12:49am on Feb. 13, 2006 Cheney and Miers on Judicial Nominations
By AndrewHyman
Prior to shooting his hunting companion (accidentally), VP Cheney had some encouraging remarks about judicial nominations, on February 9:
For all too many years, in too many cases, we've seen non-elected judges imposing their own values and policy views and disregarding the democratic rights of the people. From the free exercise of religion in public places, to the pledge of allegiance, to issues of life itself, some judges are acting like legislators. In two national campaigns, George W. Bush ran on a promise to nominate judges who will faithfully interpret the Constitution and the laws of our country. He's kept that promise, and he's given the nation two outstanding members of the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito. (Applause.) In this second term, the President will continue to appoint men and women who understand that judges must be servants of the law, and not legislate from the bench.
White House Legal Counsel Harriet Miers also made some remarks on this subject, in an interview a few days ago. She deserves a lot of credit for helping to get Alito and Roberts confirmed, and perhaps she'll have a threepeat before long.
Posted in News —
Posted at 6:37pm on Feb. 9, 2006 Idle Gossip and Speculation About Justice Stevens
By AndrewHyman
Wonkette is dishing it out, here.
UPDATE: Wonkette has more on this subject, plus even more.
Posted in News —
Posted at 10:51pm on Feb. 8, 2006 Ikuta and Wallace Nominated for Appeals Courts
By AndrewHyman
How Appealing has details here, and the White House press release is here. Ikuta and Wallace would succeed Judges Browning and Pickering, respectively. These nominations are to fill two of the eight appellate judicial emergencies.
UPDATE: Only two more of the eight appellate judicial emergencies have yet to be addressed by the President: no one has been nominated to succeed Francis Murnaghan of the Fourth Circuit, and no one has been nominated to succeed A. Wallace Tashima of the Ninth Circuit.
UPDATE #2: Rumor has it that Milan Smith is the leading prospect to succeed Judge Tashima in the Ninth Circuit. Regarding a successor for Judge Murnaghan in the Fourth Circuit, I hope that UVA Law Professor Caleb Nelson will be considered. Claude Allen was previously nominated for that seat.
Posted in News —
Posted at 10:03pm on Feb. 8, 2006 Justice Breyer's Speech at His High School
By AndrewHyman
The video is here of the speech mentioned previously at confirmthem. It seemed like a good speech, and I didn't hear him say anything about laws being "made in" the Supreme Court, as Associated Press had reported.
UPDATE: Another speech that Breyer gave this week --- at the University of Chicago --- is available here. Associated Press has a report about it, titled "U.S. justice says consequences key to constitutionality" (my comments are here). If you listen to Breyer's speech, check out what he says at 54:30 into the speech, about the Ninth Amendment. Breyer believes that rights, like law itself, shouldn't be fixed or frozen, and therefore he concludes that the Ninth Amendment "didn't specify ... precise substantive content."
Breyer quotes Harvard History Professor Bernard Bailyn regarding the Ninth Amendment, but omits some critical stuff that Bailyn said.
When the federal Constitution was written the wisest minds in America decided that there should be no national Bill of Rights, not merely because most of the state constitutions already contained some such protections, but, as Madison (who would later write the federal Bill of Rights) said, "There is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." In other words, the enumeration of rights by the federal government, the mere listing of them and defining them, would necessarily limit their scope. "The rights of conscience in particular [he said], if submitted to public definition, would be narrowed more than they are likely ever to be by an assumed power." The right solution, he and others then felt, was what is implied in the present 9th Amendment: that, in addition to the rights specified by the states, there is a universe of rights, possessed by the people latent rights, still to be evoked and enacted into law.
But was this workable? In any given situation, someone would have to decide whether the rights that were claimed were valid, and that would leave the existence of rights to the mercy of personal and political opinion, and no one would be safe. Some rights a core body of rights protected against the powers of the federal government would have to be specified, and the residue somehow protected in general terms. This is the compromise that we have inherited from them and that we live with, and struggle with, and benefit from, every day of our lives: in the first eight amendments of the Constitution, a carefully worded list of specific rights protected from encroachment by the federal government, together with the belief that there are not only rights protected by the states but a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law.
Bailyn repeatedly points out that the rights protected by the Ninth Amendment are only protected if they are enacted into law. In other words, it's not okay to deny or disparage rights because they're absent from the first eight amendments in the Bill of Rights, but it IS okay to deny or disparage rights because they've never been approved by the democratic process. Thus, the Ninth Amendment protects rights listed in state constitutions, and in state and federal statutes, as well as protecting rights that are outside the scope of the enumerated federal powers. The Ninth Amendment does not authorize judges to make up new rights.
UPDATE #2: Further remarks by Breyer during his University of Chicago visit are here.
Posted in News —
Posted at 8:26pm on Feb. 8, 2006 Two Judicial Emergencies that the Gang of 14 Ought to Address
By AndrewHyman
Currently, there are eight judicial emergencies in the federal appeals courts. For two of those emergency vacancies, replacements have been approved by the Senate Judiciary Committee, but there has not yet been a floor vote. William Myers awaits a floor vote to succeed Thomas Nelson in the Ninth Circuit, and Terrance Boyle awaits a floor vote to succeed J. Dickson Phillips Jr. in the Fourth Circuit. Info about both Boyle and Myers is linked over at the right-hand-side of the confirmthem home page, under the category ââ‚Å“Circuit Nominees.ââ‚?
ââ‚Å“The Dealââ‚? struck last summer didn't explicitly do anything to prevent filibusters of these two emergency nominees. But, it's doubtful that either of these two nominees involves any ââ‚Å“extraordinary circumstances,ââ‚? and the Gang of 14 ought to say so even though that wouldn't be a 100% guarantee of an up-or-down vote. As far as I know, not a single member of the Gang of 14 has specifically said whether these two nominees involve extraordinary circumstances.
Posted in Circuit Courts —
Posted at 7:33pm on Feb. 8, 2006 D.C. Circuit Vacancies
By feddie
Ed Whelan over at NRO's Bench Memos has the scoop.
Posted in Circuit Courts —
Posted at 12:02pm on Feb. 8, 2006 The Role of Blogs in Confirmations
By AndrewHyman
It's discussed in the Washington Times today.
Posted in News —
Posted at 2:29am on Feb. 8, 2006 Justice Breyer Explains
By AndrewHyman
Students ply justice with questions, autograph requests
By Dan Goodin
ASSOCIATED PRESS
2:22 p.m. February 6, 2006
"U.S. Supreme Court Justice Stephen Breyer received a welcome befitting a rock star Monday at his old high school. While Breyer, 67, who graduated from Lowell High School in 1955, sidestepped questions from students about thorny subjects like religion in public schools, he spent about an hour explaining how laws are made in the nation's highest court."
Posted in News —
Posted at 8:23am on Feb. 7, 2006 Itââ‚â„¢s time for the Senate to confirm Judge Terrence Boyle (4th Circuit)
By feddie
Posted in Circuit Courts —
Posted at 9:05pm on Feb. 6, 2006 A Sixth Circuit Case on the Death Penalty
By AndrewHyman
On January 13, the Cleveland Plain Dealer had an article featuring two judges who may be in the running for SCOTUS, if a vacancy should occur soon. Judge Danny Boggs and Judge Alice Batchelder split, and the full text of the case is here. Info about these and other SCOTUS prospects is linked at the right side of the confirmthem home page.
UPDATE: On February 6, the Ohio Attorney General petitioned the Sixth Circuit for en banc review in this case.
Posted in News —
Posted at 6:00pm on Feb. 3, 2006 Hearing on February 7
By AndrewHyman
The Senate Judiciary Committee meets Tuesday to talk about judicial nominations. All of the current vacancies and nominations are listed here.
Posted in Circuit Courts —
Posted at 7:26pm on Feb. 2, 2006 Will Justice Stevens retire at the end of this term?
By feddie
Here's the latest speculation on that front, courtesy of NewsMax.
Posted in SCOTUS —
Posted at 2:52am on Feb. 2, 2006 The ConfirmThem Team Kicks a Lot of Arse
By krempasky
2,102 posts.
71,303 comments.
I can't thank the contributors and readers enough (and a special set of kudos to Andrew Hyman who's been an absolute machine this past year) - you've made this a fantastic vehicle for covering the judicial nomination fights.
Looking forward - we see a different SCOTUS than we did a year ago when we started - but we're far, far from done. There are nominees stuck in the Senate - there are vacancies across the country. Who knows? Maybe we'll see another fight at the highest Court sooner than we think. So stay tuned, stay active, and know that we're not going anywhere.
Posted in Administrative —
Posted at 12:36am on Feb. 2, 2006 ââ‚Å“Alito Opposes Mo. Executionââ‚?
By feddie
And while the end result is unquestionably newsworthy, the law geek in me is curious to see the majority's basis for allowing the stay to remain in effect (and thus the cause of the 6-3 divide).
You can read the Courtââ‚â„¢s order denying the application to vacate the stay imposed by the Eight Circuitââ‚“which, btw, has been assigned to Alitoââ‚“here.
Posted in SCOTUS —
Posted at 6:36pm on Feb. 1, 2006 Serious class
By Irishlaw
Wow -- Justice Alito just thanked all of the Judiciary Committee members for making sure (I paraphrase) the record contained all the information necessary to make a fair assessment of his nomination. Very gracious of him.
The rest of his speech is displaying his great humility and gratitude as well -- to his family and friends, to his clerks (are they the ones cheering loudly in the background?), to Justice O'Connor, and also specifically to Harriet Miers.
Very nicely done.
Posted in SCOTUS —
Posted at 11:15pm on Jan. 31, 2006 SOTU Open Thread
By krempasky
That was Sam Alito in a black robe. Blog away...
Posted in Uncategorized —
Posted at 8:52pm on Jan. 31, 2006 Pryor on religion (as per Register)
By Quin
This is cross-posted at Southern Appeal. Here's what we at the Register had to say about a brilliant speech Bill Pryor gave last week at Notre Dame, destroying the myth that deeply observant Catholics can't be good judges.
Posted in Uncategorized —
Posted at 4:53pm on Jan. 31, 2006 Why it matters
By Irishlaw
Thanks to NRO for posting the latest reminder of one reason why so many of us believe it is vitally important for appointments like Justice Alito's to make it through. Here's a description, from Planned Parenthood v. Gonzales, today's Ninth Circuit opinion striking the federal Partial-Birth Abortion Ban, of what "both the Constitution and the law as established by the Supreme Court" (2, emphasis mine) apparently prohibit our civilized society from outlawing:
When performing a non-intact D&E, the doctor, under ultrasound guidance, grasps a fetal extremity with forceps and attempts to bring the fetus through the cervix. At this point, the fetus will ordinarily disarticulate, or break apart, because of traction from the cervix, and the doctor must return the instrument to make multiple passes into the uterus to remove the remaining parts of the fetus, causing further disarticulation . . . . [In an intact D&E,] If the fetus presents head first (a vertex presentation), the doctor first collapses the head, either by compressing the skull with forceps or by inserting surgical scissors into the base of the skull and draining its contents. (5-6)
If you think that's uncomfortable and even ugly to read, I agree. I also think that on no reasonable reading does the Constitution give any fundamental right to have such procedures performed to cause the deaths of unborn children. Yet current Supreme Court jurisprudence apparently does protect such a gruesome "right." Even the mere possibility of changing that type of jurisprudence -- and hewing to a more reasonable understanding of the Constitution -- is enough to support originalist judges, like Justice Alito, and hope that rulings like today's in Planned Parenthood will soon be righted.
Posted in Circuit Courts —
Posted at 2:03pm on Jan. 31, 2006 Hoorah -- 58 Is A Beautiful Number
By Lorie Byrd
This is truly a time for thanks and celebration.
Polipundit and I are suggesting all those wishing to make it known how much you appreciate the confirmation of Justice Alito to contribute to the RNC to help elect more Republicans to the Congress. You might even want to tack on an extra 58 cents to your contribution (for each of the votes in favor of confirmation) to make the point. 58 is a beautiful number.
Update: Woo Hoo! Justice Alito has been sworn in.
Update II: Jon Ham makes an interesting point and prediction about the 58 vote count.
Ruth Bader Ginsburg was confirmed by a vote of 96-3 in 1993 while Samuel Alito was confirmed by a vote of only 58-42. That must mean that Ginsburg is 65.5 percent better for the country than Alito. You laugh, but I predict something very much like this will become the MSM template when Alito's confirmation is discussed in the next few years.
Read the whole thing. I think he is probably right about that being the spin offered by those on the liberal side. I say let's counter it now, by pointing out what the numbers really say, which is that Republicans are much more reasonable and tolerant of differing views than Democrats, and they respect the President's right to nominate someone who shares his political philosophy as long as that individual is qualified.
Posted in Alito —
Posted at 1:21pm on Jan. 31, 2006 Yea!
By Quin
As somebody who has publicly backed Alito as the best choice for the high court since way back in October of 2004, I take particular pleasure in this triumph. But without this site, we would right now be seeing the confirmation of some second-rater, made necessary by the defeat that Harriet Miers would have suffered by a combination of mean dems and principled GOPers, which would have weakened Bush too much to make a strong choice like Alito. Without this site, the pressure on Miers probably would not have been great enough to cause a withdrawal by that estimable lady. So congrats to Confirm Them, and congrats to Justice Alito!
Posted in Uncategorized —
Posted at 1:13pm on Jan. 31, 2006 Justice Alito
By Irishlaw
CNN.com has "Breaking" . . . it's official.
Congratulations, Mr. Justice!
Posted in Alito —
Posted at 2:48am on Jan. 31, 2006 Congratulations, Judge Alito!
By AndrewHyman
But I still say Bush should have nominated Danny Way. :-)
UPDATE: See comment #29 for some really unfortunate developments related to the recent cloture vote.
UPDATE #2: The up-or-down vote is now occurring. More than 50 senators have already voted for confirmation. Expect a final tally of 58-42.
UPDATE #3: The official tally is 58-42.
Posted in Humor —
Posted at 2:14am on Jan. 31, 2006 The NAYS
By DanCT
With one exception, the Senators voting NAY on cloture were from the northeast (MA, NY, NJ, MD, DE, RI, VT, CT), midwest (MI, IL, IN, MN, WI), or west coast (CA, OR, WA) --- Senator Reid (D-NV) is the exceptional case. Democrat Senators from other regions were somewhat able to resist the hyperactive poison spewing from the deep blue regions (but most of them are still poisoned to the extent that they will vote against confirmation). A NAY on cloture is an extreme position, and it is mildly surprising to see so many NAYS from the purple midwest. Perhaps the midwest has taken a blueward turn since '04, but I suspect the plethora of NAYS from there is a sign that the Senators are swerving to the dark side (i.e., being guided by hatred of the right and heated rhetoric of the left more than by reason and principle) and away from the majority of the people of their state. If they and other purple and red state Democrats make a habit of such swerving, '06 and especially '08 will be interesting and fun to watch.
The list:
Boxer CA
Feinstein CA
Dodd CT
Biden DE
Durbin IL
Obama IL
Bayh IN
Kennedy MA
Kerry MA
Mikulski MD
Sarbanes MD
Levin MI
Stabenow MI
Dayton MN
Laut'nb'rg NJ
Menendez NJ
Reid NV
Clinton NY
Schumer NY
Wyden OR
Reed RI
Jeffords VT
Leahy VT
Murray WA
Feingold WI
Posted in SCOTUS —
Posted at 10:32pm on Jan. 30, 2006 Total Victory
By Marshall Manson
Today's 72-25 vote in favor of cloture is a complete and total repudiation of a six-year strategy by Senate Democrats (and a twenty year effort by liberal legal thinkers like Laurence Tribe) to make ideology fair game in judicial confirmations. Senators face elections. They are the candidates. Judges do not face voters and should not have to act like baby-kissing politicians, crusading for votes. And today's vote makes it clear that now and in the future, judicial nominees do not have to act like political candidates (or be treated like them) in order to be confirmed.
So today's vote settles the question once and for all -- every single qualified nominee who demonstrates a judicial temperament deserves and requires a fair-up-rdown vote on his or her nomination.
Today's vote should also represent the final repudiation of the Democrats filibuster strategy. Voters have repudiated it at twice at the ballot box, making clear their distaste for obstruction. Finally, after six years, the Democrats caught on.
There's lots of moaning tonight at DailyKos about needing more Democrats. But the Kossak's whining proves they still don't get it. By voting in favor of cloture, Democrats move away from their failed strategy and closer to winning elections. The pro-filibuster left just drags the Democratic party closer and closer to the Howard Dean fringe. So, the far-sighted partisan Republican in me knows that the fight in Washington will continue.
But for today, victory is ours, and we should celebrate it.
Posted in Alito —
Posted at 9:27pm on Jan. 30, 2006 Ted Kennedy Is Not a Happy Camper
By AndrewHyman
Video of the Senator's harangue on the Senate floor is here. Unfortunately, Senator Kennedy was not listening when Judge Alito testified before the Judiciary Committee. Some excerpts from Alito's testimony:
ââ‚Å“[T]here is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law."
ââ‚Å“Every person has equal rights under the law in this country, and that includes people [who] have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens. Everybody is entitled to be treated equally under the law. And I think thatââ‚â„¢s one of the greatest things about our country and about our legal system."
ââ‚Å“I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether thereââ‚â„¢s an invasion of a right to privacy, a legitimate expectation of privacy."
ââ‚Å“[T]he Supreme Court â₦ after a long delay, vindicated what the equal protection clause of the 14th Amendment was supposed to mean â₦. Sometimes â₦ the principle that is embodied in a constitutional provision has long been neglected. That was certainly true with respect to the equal protection clause. There was a long period between Plessy v. Ferguson and Brown v. Board of Education when the true meaning of the equal protection clause was not recognized in the decisions of the Supreme Court. And when Brown was finally decided, that was not an instance of the court changing the meaning of the equal protection clause; it was an instance of a court righting an incorrect interpretation that had prevailed for a long period of time."
ââ‚Å“I think the Constitution means something. And I donââ‚â„¢t think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean. It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution."
ââ‚Å“In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption. But I think we have to recognize that the Constitution is very different from statutes in some important respects. Statutes are often very detailed, and they generally donââ‚â„¢t exist without revision for very long periods of time. The Constitution was adopted to endure throughout the history of our country."
Posted in Analysis and Predictions —
Posted at 8:19pm on Jan. 30, 2006 The Roll Call for Cloture
By AndrewHyman
As mentioned, the vote was 72-25, with Ensign, Harkin, and Hagel not voting. Senator Snowe said this:
I find it regrettable that there are those who are trying to resurrect a filibuster even as there is clearly nothing in the record that constitutes extraordinary circumstances.
Democrats voting to cut off debate and move to a final vote were: Daniel Akaka (Hawaii), Max Baucus (Mont.), Jeff Bingaman (N.M.), Robert Byrd (W.Va.), Maria Cantwell (Wash.), Thomas Carper (Del.), Kent Conrad (N.D.), Byron Dorgan (N.D.), Daniel Inouye (Hawaii), Tim Johnson (S.D.), Herb Kohl (Wis.), Mary Landrieu (La.), Joe Lieberman (Conn.), Blanche Lincoln (Ark.), Bill Nelson (Fla.), Ben Nelson (Neb.), Mark Pryor (Ark.), Jay Rockefeller (W. Va.), and Ken Salazar (Colo.). No Republicans voted against cloture. The official Senate roll call is here.
Hat Tip: Ed Whelan at Bench Memos for the link to the roll call vote, and for his excellent blogging about the Alito nomination over the past several months.
Posted in News —
Posted at 7:38pm on Jan. 30, 2006 Cloture Vote: 72-25
By AndrewHyman
Final vote on Alito nomination scheduled for Tuesday at 11 AM (East Coast Time).
UPDATE: The Senators not voting were Ensign, Hagel and Harkin.
Posted in News —
Posted at 6:50pm on Jan. 30, 2006 JUSTICE Alito Open Thread
By Quin
It appears that the Switzibuster has failed. There is no joy in Davos, for Mighty Kennedy has struck out. Tomorrow morning Judge Samuel Alito will be confirmed as an Associate Justice of the United States Supreme Court.
Feel free to celebrate.
Posted in SCOTUS —
Posted at 6:25pm on Jan. 30, 2006 Reminder
By AndrewHyman
The Senate debate on Alito can be viewed via C-Span. The cloture vote is set for 4:30 PM (East Coast Time).
Posted in Uncategorized —
Posted at 5:07pm on Jan. 30, 2006 Ensign Injured
By AndrewHyman
Nevada Senator John Ensign was injured today, in a car crash. We wish him a speedy recovery, and of course the same goes for Bob Woodruff.
UPDATE: Ensign released from hospital. Presumably, he's on an Air Force jet right about now.
Posted in News —
Posted at 3:09pm on Jan. 30, 2006 March on
By Irishlaw
Via a link from Two Cents in the comments to the last post, here's an AP report with some of this morning's quotes, including this one from Sen. Kennedy:
"I think he is the wrong judge at the wrong time in the wrong place," said Sen. Edward Kennedy, D-Mass., a longtime liberal stalwart. "I do not believe he is going to be part of the whole movement of the continued march towards progress in this country."
And here I thought Supreme Court justices were supposed to be faithfully interpreting the Constitution, not leading marches as part of grand movements towards progress. (Where is that again?) Then again, Justice Kennedy also seems to be confused on this point sometimes, too . . .
Posted in Fillibuster —
Posted at 2:21pm on Jan. 30, 2006 Reminder
By AndrewHyman
The Senate debate on Alito can be viewed via C-Span. The cloture vote is set for 4:30 PM.
Posted in News —
Posted at 1:09pm on Jan. 30, 2006 Chafee to Vote for Cloture
By AndrewHyman
Just to briefly clarify, the Providence Journal reported on Saturday that Sen. Chafee "has committed himself to help fellow Republicans break a last-ditch Democratic filibuster of the nomination." Then today, the Providence Journal reported that "Chafee had committed himself to help fellow Republicans break a last-ditch Democratic filibuster of the nomination. He re-affirmed that stand this morning." Chafee will vote for cloture, and then against Alito in the up-or-down vote.
Speaking of last-ditch, Sen. John Cornyn today called the filibuster attempt "a last-ditch partisan effort to mollify the lobbyists of the hard left. It will backfire, and a filibuster-proof majority will vote to move forward on this nomination."
Posted in News —
Posted at 12:23pm on Jan. 30, 2006 Chafee Votes No
By Blanton
Lincoln Chafee (D-RI) will announce today that he will vote against Judge Alito. No word on whether he will vote for or against cloture. Given his spinelessness, he will probably bow to NARAL's wishes. He is, after all, one of the pro-abortion women in the Senate.
Posted in SCOTUS —
Posted at 5:14pm on Jan. 29, 2006 Obama and Biden Denounce Themselves
By AndrewHyman
Associated Press has this report (emphasis added):
To more effectively oppose Supreme Court nominees in the future, Democrats need to convince the public "their values are at stake" rather than use stalling tactics to try to thwart the president, said a senator who opposes Samuel Alito's confirmation.... "There is an over-reliance on the part of Democrats for procedural maneuvers," he told ABC's "This Week"....Obama joined some Democrats... in expressing his unhappiness with the filibuster bid....Sen. Joseph Biden, D-Del., said he, too, would SUPPORT the filibuster attempt but agreed that it was not particularly wise.
So, Senators Obama and Biden say they're unhappy with unwise stalling tactics, and then they support those tactics. As Justice Jackson once wrote, the most fitting precedent is that of Julia who, "whispering 'I will ne'er consent,' --- consented." Fortunately, it seems like the Senate will not consent to a filibuster and ensuing crisis.
Doesn't this Associated Press report seem like something Scrappleface might write?
Posted in News —
Posted at 1:00am on Jan. 29, 2006 Kennedy, Byrd, Kerry, and McClellan on the Alito Nomination
By AndrewHyman
Senator Ted Kennedy blogged as follows on Saturday:
The right wing is salivating over the prospect of Justice Alito on the Supreme Court, and the Republican majority in the Senate intends to rubber-stamp the nomination. The only realistic way to stop this nightmare is to stand up using every tool we haveâ₦.The Senate Judiciary Committee hearings confirmed our worst fears, and we have to take the strongest possible stand against â₦. this shameful nominationâ₦.I will not be able to stay in front of the computer, as I have quite a bit to take care of today.
If you can stay in front of the computer, check out a video of Senator Robert Byrd discussing those Senate Judiciary Committee hearings that Senator Kennedy mentioned (Byrd's full written statement is here).
Hat Tip: Michelle Malkin.
UPDATE: In case you missed it, here's an excerpt from an Associated Press report:
Kerry, defeated by Bush for the presidency in 2004, called for a filibuster Thursday while attending a world economic conference at a Swiss resort. Asked Friday if the administration was taking Kerry's call seriously, White House press secretary Scott McClellan chuckled and said: "It was a pretty historic day. This was the first time ever that a senator has called for a filibuster from the slopes of Davos, Switzerland. I think even for a senator, it takes some pretty serious yodeling to call for a filibuster from a five-star ski resort in the Swiss Alps."
The cloture vote is set for 4:30 PM on Monday, January 30. The up or down vote is scheduled for 11 AM on Tuesday, January 31.
Posted in News —
Posted at 4:58pm on Jan. 28, 2006 Bush Gives Push to Alito Nomination
By AndrewHyman
Pres. Bush devoted his weekly radio address to the Alito nomination:
Good morning. The United States Senate is now considering my nomination of Judge Sam Alito to be an associate justice on the Supreme Court. As Americans saw in his confirmation hearings, Sam Alito is a man of great character and integrity. He has more prior judicial experience than any Supreme Court nominee in more than 70 years. He understands that the role of a judge is to strictly interpret the law, not to advance a personal or political agenda. And throughout his extraordinary career, Sam Alito has earned the tremendous respect of his colleagues and attorneys across the political spectrum.
This past Wednesday, I met with a distinguished group of 39 former law clerks to Judge Alito. During Judge Alito's 15 years on the bench, these fine men and women have worked side-by-side with him, providing legal research, discussing and debating pending cases, and seeing firsthand how he arrives at decisions. They are uniquely qualified to assess what kind of Supreme Court Justice Sam Alito would be, and they are united in their strong support of Judge Alito's nomination.
One of Judge Alito's former clerks, who describes herself as a "left-leaning Democrat," says this about Sam Alito: "He's a man of great decency, integrity, and character. I believe very strongly he deserves to be confirmed as the Court's next associate justice." Another former clerk worked on Senator Kerry's presidential campaign. She says this about Judge Alito: "His approach to judging is not about personal ideology or ambition, but about hard work and devotion to law and justice." In fact, Judge Alito has the strong support of all 54 of his former clerks, regardless of their political beliefs. They know him well, and they know he'll make an outstanding Supreme Court Justice.
Judge Alito has also earned broad support from his fellow judges on the Third Circuit Court of Appeals. Seven of them took the extraordinary step of testifying on his behalf before the Senate Judiciary Committee. Former Chief Judge Ed Becker -- who sat with Judge Alito on more than 1,000 cases -- said this about his colleague: "He's a real judge, deciding each case on the facts and the law, not on his personal views." Another colleague on the Third Circuit who was appointed by President Clinton said this about Judge Alito: "He is a fair-minded man, a modest man, a humble man, and he reveres the rule of law." This judge went on to say that, if confirmed, Judge Alito "will serve as a marvelous and distinguished associate justice."
Judge Alito received the American Bar Association's highest possible rating -- a unanimous "well-qualified." The ABA based its rating on its assessment of Judge Alito's integrity, professional competence, and judicial temperament. In the past, leading Democratic senators have called the ABA rating the "gold standard" for judicial nominees.
This past week, Judge Alito gained the endorsement of Pennsylvania's Democratic Governor, Ed Rendell. Governor Rendell said he was not pleased with the partisan way some of his fellow Democrats have handled Sam Alito's nomination. Democratic Senator Robert Byrd of West Virginia announced he was voting for Judge Alito. And he said that many people in his state were calling the treatment of Judge Alito by some Democrats "an outrage and a disgrace." Another Democratic Senator expressed concern that the Senate confirmation process in recent years has become "overly politicized, to the detriment of the rule of law."
The Senate has a constitutional responsibility to hold an up-or-down vote on Judge Alito's nomination. Throughout its 216-year history, the Senate has held an up-or-down vote on every Supreme Court nominee with majority Senate support. Judge Alito has demonstrated that he is eminently qualified to serve on our nation's highest court, and America is fortunate to have a man of his integrity and intellect willing to serve.
I'm grateful to Judge Alito, his wife Martha, and the Alito children for their patience and dignity during the process. And I look forward to the Senate voting to confirm Judge Sam Alito as the 110th justice of the Supreme Court.
Thank you for listening.
END
Posted in News —
Posted at 3:42pm on Jan. 28, 2006 Chafee: Opposes Filibuster; Unsure About Confirmation Vote
By Marshall Manson
Rhode Island Senator Lincoln Chafee tells the Providence Journal that he will vote for cloture -- that is, to end a filibuster blocking Judge Alito's confirmation. Obviously that's good news.
But Chafee is still trying to have it both ways, refusing to say whether he's going to actually vote to confirm the judge. Happily, Chafee's vote isn't needed for confirmation. But his attempt to satisfy everyone is (natch) satisfying no one at all. His Republican primary challenger attacks him for being too squeamish and timid. His Democratic challenger attacks him for caving to the party leadership.
Unfortunately, Chafee's brief Senatorial career has been marked by this kind of pointless indecision. Rather than continuing his extended hand-ringing, he ought to pick a side and start articulating a position.
Of course, that might require a backbone transplant...
Posted in Alito —
Posted at 2:24am on Jan. 28, 2006 A Couple Recent Cantero Cases
By AndrewHyman
I came across a couple interesting recent high-profile cases involving Florida Supreme Court Justice Raoul Cantero. Of course, Cantero's been mentioned as a possible SCOTUS nominee, and background about him can be found over at the right-hand-side of our home page. The recent cases I came across are Bush v. Holmes and Maddox v. State of Florida. Here are some brief thoughts about these two cases.
In Holmes, the issue was school vouchers. Florida's constitution says:
The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education. . . .
The majority opinion held that vouchers violate this constitutional provision, and Cantero joined a dissent. Whatever one may think about the advisability of vouchers as a policy matter, it seems clear that the dissent in this case was correct. Use your imagination for a moment. Suppose that the State of Florida allocates more money per public school pupil than any other school system in the world, and suppose that Florida public schools are perfectly uniform, efficient, safe, secure, and of high quality, and furthermore suppose that the State simultaneously provides some funding for students who go to private schools. I don't see how this scenario would violate the above-quoted constitutional provision.
In Maddox, a Florida statute said that traffic "citations shall not be admissible evidence in any trial." The majority opinion said "that the Legislature surely did not intend for the phrase 'any trial' to be construed so literally to exclude the use of traffic citations in all judicial proceedings." Cantero's dissent said the statute was "as clear, definite and unambiguous as statutory language gets." Nice.
Posted in Analysis and Predictions —
Posted at 8:07pm on Jan. 27, 2006 Ann Coulter is Terrific, But....
By AndrewHyman
Yesterday, she jokingly suggested putting rat poison in Justice Stevens' creme brulee. Stevens needn't worry, though. No way did he make it to age 85 eating creme brulees. Seriously, it's unlikely that a tough old World War II Bronze Star recipient like Stevens will be fazed by a very bad joke.
Posted in News —
Posted at 7:16pm on Jan. 27, 2006 This isn't over yet...
By Marshall Manson
I know everyone says this thing is wrapped up. And I hope "everyone" is right. To be sure, there are vote counts here and there that make it seem like a done deal. But there are three days until the Monday vote. And the K&K crowd from Massachusetts, together with their puppet masters on the left, will be breaking arms all weekend to stop the confirmation. So if you live in a state where are Dem has indicated he or she will vote for cloture -- and stop the filibuster -- take a moment and make a call. Let your Senator know (through their staff, of course) that they are making the right choice. You can be sure that the folks from Planned Parenthood and all the rest will be dialing for filibusters all weekend.
Posted in Alito —
Posted at 7:06pm on Jan. 27, 2006 Feinstein Flip-Flops: Will Support Filibuster
By Marshall Manson
I'm sure it will shock exactly none of our readers to learn that the distinguished Senator from California, Ms. Feinstein, has gone back on her earlier pledge and will now vote to support a filibuster of Judge Alito's confirmation.
There are a number of Senate Democrats for whom I have a great deal of respect, whether for their intellect or commitment to their principles. Ms. Feinstein isn't one of them. It's hard to imagine any Senator being more in the pocket of the radical interest groups on the Left. And today, she illustrated once again that her subservience exceeds her intellect or personal judgement.
UPDATE: Here's what Ms. Feinstein had to say on CBS's Face the Nation just two weeks ago:
SENATOR FEINSTEIN: I do not see the likelihood of a filibuster to be very candid with you. I don't see those kinds of egregious things emerging that would justify a filibuster. I think when it comes to filibustering Supreme Court appointment you really have to have something out there, whether it's gross moral turptitude or something that comes to the surface. Now this is a man that I might disagree with. That doesn't mean he shouldn't be on the court.
JAN GREENBURG, CHICAGO TRIBUNE: So it would be different for Supreme Court as opposed to appellate court nominees?
FEINSTEIN: Well, I'm just saying I think there is an additional weight that you might give to his background, to his qualifications, to his credibility as opposed to agreeing with him. I mean, I might disagree with him. That doesn't mean that he doesn't have credentials to serve on the Supreme Court.
Here's what she said today:
ââ‚Å“Based on a very long and thoughtful analysis of the record and transcript, which I tried to indicate in my floor statement yesterday, Iââ‚â„¢ve decided that I will vote no on cloture.ââ‚?
Posted in Alito —
Posted at 3:52pm on Jan. 27, 2006 Feinstein Versus Alito
By AndrewHyman
Sen. Dianne Feinstein, Jan. 26, 2006:
"[T]he President continues to assert that he will only nominate those who view the Constitution through a lens of strict constructionism and originalism....If an originalist analysis were applied to the 14th amendment, women would not be provided equal protection under the Constitution, interracial marriages could be outlawed, schools could still be segregated, and the principle of one man, one vote would not govern the way we elect our representatives."
Here are some of the excerpts from Judge Alito's hearing testimony that demonstate Feinstein is mistaken:
ââ‚Å“First of all, Senator, I think the Constitution means something. And I don't think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean. It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution."
ââ‚Å“Every person has equal rights under the law in this country, and that includes people [who] have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens. Everybody is entitled to be treated equally under the law. And I think that's one of the greatest things about our country and about our legal system.ââ‚?
ââ‚Å“[T]he Supreme Court â₦ after a long delay, vindicated what the equal protection clause of the 14th Amendment was supposed to mean â₦. Sometimes â₦ the principle that is embodied in a constitutional provision has long been neglected. That was certainly true with respect to the equal protection clause. There was a long period between Plessy v. Ferguson and Brown v. Board of Education when the true meaning of the equal protection clause was not recognized in the decisions of the Supreme Court. And when Brown was finally decided, that was not an instance of the court changing the meaning of the equal protection clause; it was an instance of a court righting an incorrect interpretation that had prevailed for a long period of time.ââ‚?
ââ‚Å“In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption. But I think we have to recognize that the Constitution is very different from statutes in some important respects. Statutes are often very detailed, and they generally don't exist without revision for very long periods of time. The Constitution was adopted to endure throughout the history of our country.ââ‚?
---Samuel Alito, January 2006
Posted in Alito —
Posted at 2:30pm on Jan. 27, 2006 Kerry Wouldn't Know the Truth if it Bit Him
By AndrewHyman
ââ‚Å“[T]o this date, his only statement on record regarding a woman's right to privacy is that she doesn't have one. "
---John Kerry, January 26, 2006
"Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy."
---Samuel Alito, January 10, 2006
Posted in Alito —
Posted at 2:19pm on Jan. 27, 2006 Conrad (D-ND) Looking Sensible
By DanCT
Kent Conrad (D-ND) goes tentatively into the YES column with today's announcement:
Sen. Kent Conrad, D-N.D., also announced Friday he is "leaning in favor of voting for" the conservative judge. "It is clear to me that a majority of the American people and the people I represent support his confirmation," he said after meeting with Alito in his office.
I can't imagine that the shrill screeching from the Kennedy/Schumer/Neas/Michelman crowd would resonate more to him than the good sense that he hears from his North Dakota constituency. I would be surprised if the foul winds will be strong enough to blow him to the dark side before Tuesday's vote. Kudos to Senator Conrad for the courage and integrity to see through the garbage we've been hearing from the left and to make the right decision.
Posted in SCOTUS —
Posted at 10:50am on Jan. 27, 2006 Friday Open Thread
By Quin
John Kerry announces his exciting new cutting edge defense iniative. he calls it...a Maginot Line. He also announced his new tech proposal today, "An Abacus for Every Child." What did we do to deserve such enemies?
Posted in Administrative —
Posted at 10:33pm on Jan. 26, 2006 More on Results-Oriented Jurisprudence
By Carol Platt Liebau
In this post, I wrote about the Dems' weakness for results-oriented jurisprudence. In his statement, however, Senator Kyl made the same point -- far more eloquently:
Minority members of the Judiciary Committee did not question Judge Alitoââ‚â„¢s qualifications. Rather, they tried to get him to commit to certain results in cases that are sure to come before the courts. They want to see certain policy goals enacted into law. Now, we all want our policy goals to become law, but our aim should be enacting constitutional legislation, not relying on the courts to enact our policy preferences.
In my September statement supporting Judge Roberts, I explained that this same dynamic had played itself out during his hearings. It is apparent that there is now a fundamental difference between the majority and the minority parties on this matter. We believe the courts should not try to impose policy results in their decisions; they should just decide the questions of statutory interpretation and constitutional meaning. For the Supreme Court, the results are â₆or should be â₆simply a function of the proper application of the Constitution and law to the facts of each case.
To the minority, however, thatââ‚â„¢s not enough. As many minority Senators have expressed, they are not going to vote for a nominee who wonââ‚â„¢t assure them that he will vote the way they want in future cases. I submit that that is wrong. As Judge Alito testified, ââ‚Å“Results-oriented jurisprudence is never justified because it is not our job to produce particular results.ââ‚?
Precisely.
Posted in Analysis and Predictions —
Posted at 8:21pm on Jan. 26, 2006 "Kerry will try Alito filibuster"
By feddie
It looks as though Senator Kerry is definitely running for president again.
Yawn.
Posted in SCOTUS —
Posted at 7:39pm on Jan. 26, 2006 Register-ing Alito
By Quin
For what it's worth, here's what we at the Mobile Register said this morning about the Alito hearings.
Posted in Uncategorized —
Posted at 7:20pm on Jan. 26, 2006 </em>Cloture Motion Filed by Sen. Frist
By AndrewHyman
Cloture vote will be 4:30 PM on Monday, January 30.
Up or down vote scheduled for 11 AM Tuesday, January 31.
Sen. Reid says there's been sufficient debate.
Posted in Alito —
Posted at 6:02pm on Jan. 26, 2006 No Final Vote Yet
By AndrewHyman
The unofficial tally is 54-29 according to C-Span. Sen. Obama is speaking. According to the Uncooperative Blogger, earlier this afternoon:
Specter just asked for a vote, since there were no more speakers, and Reid objected and, no matter how hard he was pressed, would give no idea when he would agree to a vote. He said we have more speakers tomorrow, even though none were scheduled. I believe they plan on dragging this out until Monday to steal thunder from the Presidentââ‚â„¢s State of the Union Address on Tuesday.
Hmm.
Posted in Alito —
Posted at 2:45pm on Jan. 26, 2006 Taking on the NYT's anti-Alito editorial
By feddie
My co-blogger, In Rem, over at Southern Appeal takes the New York Times to task for this absurd editorial.
Posted in SCOTUS —
Posted at 2:20pm on Jan. 26, 2006 Cut Out the Name-Calling, Jerk
By AndrewHyman
Senator Ken Salazar of Colorado says that Justice Clarence Thomas "is an abomination when you contrast him to the leadership and principles of someone like Thurgood Marshall." Thatââ‚â„¢s the same Ken Salazar --- mind you --- who called James Dobson ââ‚Å“the anti-christ," although Salazar did later issue a mealy-mouthed apology saying that he meant to instead call Dobson ââ‚Å“self-serving and selfish."
Instead of comparing Salazar to his illustrious predecessor, Iââ‚â„¢ll just point out that Salazarââ‚â„¢s attack against Justice Thomas is grossly unfair. Salazar could learn a thing or two from Justice Marshallââ‚â„¢s former clerks, including Yale Law professor Stephen L. Carter, who said this about Justice Thomas (WaPo, June 7, 1996):
My own view is that I think Thomas is wrong about an awful lot of stuff, but that doesn't mean he's a traitor....Clarence Thomas is neither a hero or a monster....But many people still will not forgive him for not being Thurgood Marshall. A lot of black Americans took it as a deliberate slight when Bush [41] nominated Clarence Thomas to succeed Thurgood Marshall because his views were the opposite of Marshall's. It was seen as a cynical act. And there is no way that he could live that down. The fact of the matter is that there are white justices as conservative as Thomas: Scalia and Rehnquist. They don't generate anything like the kind of animosity that Thomas does.
In an interview with Juan Williams, Justice Marshall expressed disgust at the circus of a confirmation process that Clarence Thomas experienced, even though Marshall thought Thomas was unqualified for the Court.
I bet Justice Marshall would also be disgusted with Salazar, and with Senator Reid too, whose example Salazar is following. And, IMHO, Thomas is an excellent justice, generally speaking.
Posted in SCOTUS —
Posted at 2:00pm on Jan. 26, 2006 Alito Vote
By DanCT
Put Tim Johnson (D-SD) in the YES column.
Posted in Uncategorized —
Posted at 11:08am on Jan. 26, 2006 "Bush Meets With Alito's Clerks"
By feddie
In case you were wondering, there are some dems who actually believe in telling the truth about Judge Alito---his former clerks:
"He is meticulous in the way he goes about deciding cases. He's meticulous in the way he goes about finding what the law is. I can't think of better qualities for anyone to serve as a judge on the Supreme Court."
"I am a Democrat who always voted Democrat, except when I vote for a Green candidate . . . but Judge Alito was not interested in the ideology of his clerks. He didn't decide cases based on ideology."
"After a year of working closely with the Judge on cases concerning a wide variety of legal issues, I left New Jersey not knowing Judge Alito's personal beliefs on any of them."
"He's a man of great decency, integrity and character. I believe very strongly he deserves to be confirmed as the next associate justice."
"I learned in my year with Judge Alito that his approach to judging is not about personal ideology or ambition, but about hard work and devotion to law and justice."
As someone who actually served as a federal appellate law clerk, I can tell y'all that if Judge Alito's judicial philosophy was premised on his political ideology, his former clerks would have noticed. Indeed, if that was the case, why would he hire liberal clerks? I am not suggesting that a conservative judge should hire judicially liberal clerks, mind you. Those slots are precious few, and we desperately need them to go to members of the Federalist Society, so that our grand conspiracy to completely take over the federal judiciary will prove successful. :) Nevertheless, when a conservative judge has a practice of hiring liberal law clerks, I think this strongly suggests that he is not approaching the cases before him with a political agenda in mind.
Update: A great comment to this post from one of Judge (soon to be "Justice") Alito's former clerks (and yes, I've confirmed this):
Judge Alito does not always have a liberal clerk. He often did, but not always. Sometimes he had more than one. (In the early ââ‚â„¢90s, he had three clerks, all of whom were liberal.)
He picks his clerks with total indifference to ideology. He looks for personal qualities, including academic qualifications, integrity, and someone he would find interesting to work with. I can tell you, ideology doesnââ‚â„¢t matter at all to him.
And the year I clerked for him, two of the four of us were liberal. And Iââ‚â„¢m one of the ones quoted in the article. Unlike Scalia, who deliberately hires one ââ‚Å“counter-clerkââ‚? Judge Alito doesnââ‚â„¢t really care what the makeup of his chambers is, as long as itââ‚â„¢s cordial.
This, to me, is the mark of why liberals like me support him. He is fair and openminded in all respects.
Posted in SCOTUS —
Posted at 10:40am on Jan. 26, 2006 "Alito Moves Toward Senate Confirmation"
By feddie
The AP has this report.
Feel free to use this post to discuss all things Alito.
Posted in SCOTUS —
Posted at 9:20pm on Jan. 25, 2006 What was that, Dick?
By feddie
Senator Durbin just said something about "dropping pants" in front of a "ten-year-old girl."
Here's hoping that his Republican opponent in the next election uses that remark in a political attack ad. :)
Posted in SCOTUS —
Posted at 8:03pm on Jan. 25, 2006 Get ready to rumble!!!!!
By Quin
As we finally move toward final confirmation for the splendid Samuel Alito, we can't get complacent, because other battles are upcoming. Note this paragraph from a much longer AP story just out on the wire: Bush also renominated Brett Kavanaugh for Robertsââ‚â„¢ old court, the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh, the White Houseââ‚â„¢s staff secretary and former associate independent counsel under Kenneth Starr, has been waiting for a Senate vote since he was nominated in 2003.
As I have written repeated, Brett Kavanaugh is well worth a fight -- indeed, he is well worth invoking the constitutional option and killing the sickening practice of the judicial filibuster once and for all. GET.... READY...TO.... RUMBLE!!!!!
Posted in Uncategorized —
Posted at 7:40pm on Jan. 25, 2006 Cue the plus-sized lady
By feddie
Say it with me now: "Justice Samuel A. Alito, Jr."
Damn, that sounds sooooooo good.
*It's difficult to read the small C-span screen here from work, but Alito currently has 48 votes, and it's clear from the list of senators who have yet to vote that his confirmation is all but certain.
Posted in SCOTUS —
Posted at 7:39pm on Jan. 25, 2006 Kavanaugh Renominated
By AndrewHyman
See here. Also, Michael Chagares has been nominated to the Third Circuit. Previous confirmthem info about Kavanaugh's DC Circuit nomination is here.
Hat Tip: How Appealing
Posted in Circuit Courts —
Posted at 4:17pm on Jan. 25, 2006 Alito is at 43 votes!
By feddie
You can watch the debate and vote here.
Posted in SCOTUS —
Posted at 4:11pm on Jan. 25, 2006 From Mobile to Spectator
By Quin
My editor at the Mobile Register has authorized me to post this: The Mobile Register, a Newhouse-owned daily paper of about 100,000 circulation, has an opening for an experienced editorial writer. Responsibilities include expressing our strong conservative voice on national issues, and also writing some editorials on state and local topics. You'll also participate in editorial board meetings. Mobile is a port city of diverse cultures and views located in southwest Alabama. We're a couple of hours east of New Orleans, and less than an hour's drive from Alabama's Gulf of Mexico beaches. Apply to Frances Coleman, editorial page editor, at: Mobile Register, P.O. Box 2488, Mobile, AL 36652; 251-219-5607; fcoleman@mobileregister.com.
The reason this wonderful position is open -- and I do mean wonderful: It's a great paper with terrific people! -- is because, I am aslo authorized to mention, I will begin a new job in DC on Feb. 27 as the Executive Editor of The American Spectator.
Posted in Uncategorized —
Posted at 3:47pm on Jan. 25, 2006 Senate Video Feed
By AndrewHyman
The C-Span video of the Senate is available here, and the vote tally is now at 41-20 for confirmation. The Washington Post also has a video feed, here.
Posted in Alito —
Posted at 3:00pm on Jan. 25, 2006 Alito Confirmation Watch
By feddie
It's open thread time! Have at it.
Posted in SCOTUS —
Posted at 1:38pm on Jan. 25, 2006 A sampling of the legal/conservative blogosphereââ‚â„¢s reaction to ABCââ‚â„¢s hit piece on Justice Scalia
By feddie
Tom Goldstein of SCOTUS Blog: ââ‚Å“This story strikes me as bordering on character assassination.ââ‚?
Professor Kerr of the Volokh Conspiracy: ââ‚Å“Scalia missed Chief Justice Robertsââ‚â„¢ swearing-in ceremony because he was giving a series of lectures on constitutional interpretation in Colorado â₆and he even had the nerve to exercise during his trip!!!ââ‚?
Ed Whelan of NROââ‚â„¢s Bench Memos: ââ‚Å“Just wondering: Has Stephen Gillers, the ââ‚Å“recognized scholar on legal ethicsââ‚? cited by ABC, ever reached an ethics opinion that didnââ‚â„¢t favor liberals or disfavor conservatives? Iââ‚â„¢m sure that the answer must be yes, but I suspect that Iââ‚â„¢m not the only one who discerns a general pattern.ââ‚?
(more to come)
Posted in News —
Posted at 1:16pm on Jan. 25, 2006 More on the brewing ABC scandal
By feddie
Leonard Leo nails ABC to the wall for its hitpiece on Justice Scalia:
Federalist Society Executive Vice President Leonard Leo released the following information Tuesday in response to the ABC News report about Justice Antonin Scaliaââ‚â„¢s attendance at a Federalist Society-sponsored legal seminar last September.
Justice Scaliaâ₦.Teaches A Course
The Facts
1. Justice Scalia taught a comprehensive course about the separation of powers under our Constitution. Reminiscent of Dan Ratherââ‚â„¢s and Mary Mapesââ‚â„¢s false National Guard story, ABC Nightline knew in advance of airing its program that he did not simply ââ‚Å“attendââ‚? a ââ‚Å“judicial education seminar, ââ‚? and it grossly misled viewers by suggesting that the event was a ââ‚Å“junketââ‚? rather than a serious scholarly program that required much work and advance preparation.
ââ‚¢ Justice Scalia taught a 10-hour course while in Colorado, lecturing the more than 100 lawyers in attendance as well as answering numerous questions they presented.
ââ‚¢ Prior to the course, Justice Scalia produced a 481-page course book containing edited cases on separation of powers issues. All attendees received the book in advance and were expected to review the material and prepare in advance of the course.
ââ‚¢ Justice Scalia arrived and left Colorado without spending any extra days to engage in recreational activity. He arrived at the hotel the night before the course at 11 p.m., having traveled by car for three hours the night before. He departed at around 6:30 a.m. the morning after the course ended in order to fly back home. The event started at 8 a.m. each of the mornings, and, despite ABC Nightlineââ‚â„¢s emphasis on Justice Scalia participating in tennis at the hotel, he spent less than two hours playing the game over the course of those two days.
ââ‚¢ Justice Scalia presented the course with LSU Law Professor John Baker. Both were present together on the rostrum for the ten hour course, and both received reimbursement for travel and lodging.
ââ‚¢ John Baker received an honorarium. Justice Scalia did not.
2. Justice Scalia did not attend Chief Justice Robertsââ‚â„¢s swearing-in ceremony at the White House on September 29 because he chose to respect a longstanding commitment to teach a course to over 100 lawyers who had traveled from at least 38 states. This was not, as Nightline suggested, missing an important Washington function so as not to miss a tennis outing.
ââ‚¢ There was virtually no advance notice that John Roberts would be confirmed and sworn-in on September 29. It was not absolutely clear until the day before.
ââ‚¢ Justice Scalia had accepted the invitation to teach on October 10, 2004ââ‚â€nearly a year before the course dates. Almost all participants had registered and paid for the course by August 2005, nearly two months in advance.
ââ‚¢ To have cancelled just a couple of days before the start of the course would have caused many attendees to lose the money the spent on plane tickets and hotel deposits, and, as the sponsor, the Federalist Society would have faced tens of thousands of dollars in damages that would have to be paid to the hotel for breaking a contract.
3. Justice Scalia was teaching a scholarly program that was educationally rigorous and open to anyone who wanted to come.
ââ‚¢ The course was approved by at least 30 state bars for continuing legal education credit. Most of the lawyers in attendance have to take such accredited continuing legal education programs in order to remain licensed to practice law.
ââ‚¢ The Federalist Society welcomed anyone who wished to come to the event. Members simply were asked to pay the registration fee, and non-members were welcome to attend if they paid the Societyââ‚â„¢s nominal dues ($5 for students, $25 for lawyers) along with the registration fee. Indeed, at least 10 of those who came to the course were non-members who joined and paid the registration fee in order to attend.
ââ‚¢ More than 100 lawyers and law students were in attendance.
4. ABC Nightline was fully aware that its piece was misleading and inaccurate, and the way in which it prepared the story bespeaks hypocrisy.
*Several hours before the program aired, the Federalist Society spoke with Nightlineââ‚â„¢s senior producer, David Scott, as well as the investigative reporter who worked on the story, Rhonda Schwartz. The Federalist Society set forth the above facts and made very clear that tennis occupied a miniscule part of Justice Scaliaââ‚â„¢s time in Colorado. Nightline nevertheless chose to lead with a ââ‚Å“tennis outingââ‚? theme and grossly failed to present the facts surrounding the course in a way that demonstrated the amount of time and work involved.
ââ‚¢ At least a week before this conversation, the Federalist Society had spoken with Rhonda Schwartz and informed her in explicit terms that Justice Scalia taught a 10-hour course attended by lawyers. Nonetheless, ABCââ‚â„¢s website, on the night of the broadcast, cast the issue as Justice Scalia attending a judicial education seminar. There is a world of difference between teaching a 10-hour course and coming to a resort to hear other speakers between various recreational activitiesââ‚â€but Nightline chose to manufacture the false impression that Justice Scalia was at a function that entailed much play and little work.
ââ‚¢ It is ironic that, in preparing a story that seeks to make the point that judges should be held to high standards of ethical integrity, ABC itself broke the law by trespassing on private property and invading the privacy of private individuals who did not give permission to be videotaped. Indeed, ABC contacted the hotel for permission to film the Societyââ‚â„¢s activities, and permission was denied by hotel management.
Needless to say, this is outrageous conduct on the part of the ABC reporters involved in airing an intentionally misleading news story about a sitting Supreme Court justice. And every conservative blog needs to post about this and force the MSM to cover the story. People need to be held accountable for this type of yellow journalism, and the only way that is likely to happen is if the conservative blogosphere speaks up.
Posted in News —
Posted at 9:05am on Jan. 25, 2006 So, now itââ‚â„¢s unethical to teach a CLE class on Federalism and Separation of Powers?
By feddie
Look, Iââ‚â„¢ve been to this seminar twice, and it is completely legitimate. The class size is limited to roughly 100-150 people, and you spend two days immersed in the Supreme Courtââ‚â„¢s federalism and/or separation of powers jurisprudence. Itââ‚â„¢s an intellectual feast, and well worth the cost of attending.
I also know for a fact that this event was scheduled well in advance (before Rehnquistââ‚â„¢s passing and Robertsââ‚â„¢s nomination), so I can certainly understand why Justice Scalia chose to honor the commitment he made to the Federalist Society, and, more importantly, to those who planned on and looked forward to attending.
So what exactly was unethical about Scalia teaching this seminar? The location? The fact that he played tennis? Well, in a nutshell the problem appears be those things, and that: (1) ââ‚Å“[the Federalist Society] is a group with a decided political-slash-judicial profileââ‚?; and (2) ââ‚Å“[o]ne night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked.ââ‚?
Thatââ‚â„¢s shocking stuff, I tell ya. Start the impeachment proceedings!
No media bias here, folks. ABC has done itself proud. What a remarkable hard-hitting news story. And I really appreciate how Brian Ross singled out Justice Thomas for receiving ââ‚Å“tens of thousands of dollars in valuable gifts, including an $800 leather jacket from NASCAR, a $1,200 set of tires, a vacation trip by private jet, and a rare Bible valued at $19,000.ââ‚? Itââ‚â„¢s strange though, no liberal justice on the Court was mentioned by name in the piece. I wonder why that is?
(cross-posted at Southern Appeal)
Posted in News —
Posted at 9:36pm on Jan. 24, 2006 Politicizing the Court
By Carol Platt Liebau
With today's party line vote in the Senate Judiciary Committee passing Judge Alito's nomination to the full Senate, the Democrats proved that they don't understand the role of the judiciary any better than they understand, say, national security.
Here's a paragraph that exemplifies what's wrong with the Democratic approach to judicial confirmation:
Senator Dianne Feinstein, Democrat of California, said that if a person favors a woman's right to choose abortion, "one cannot vote for Judge Alito. It's really that simple."
Of course, Senator Feinstein sounds like she's making a decision about whether to endorse a politicla candidate, whose political views determine how many votes he will receive. And that's where the Democrats' results-oriented view of the judiciary and judging itself becomes repulsively apparent. They support the judges who will give them the results they want, and reflexively oppose the rest.
How "simple" was it, after all, when a bunch of pro-life senators voted for Ruth Bader Ginsburg, despite her widely-proclaimed pro-abortion views?
They did so because Republicans understand that judging isn't supposed to be about supporting those who will vote for outcomes in accordance with a particular legislator's political agenda. It's about finding superbly qualified nominees of good character and temperament, who dwell somewhere in the wide swathe of the continuum between mainstream conservative and mainstream liberal jurisprudence, and otherwise letting the President have his choice.
Cross posted at CarolLiebau.blogspot.com.
Posted in Uncategorized —
Posted at 6:45pm on Jan. 24, 2006 Confirmthem Denounced as "Unethical"
By AndrewHyman
Itââ‚â„¢s official. Confirmthem has been designated an unethical website, by the ââ‚Å“Ethics Scoreboard." It happened last October, but sometimes I'm a little slow finding out about these things.
[E]ven as Confirmthem puffs out its little cyber-chest with pride for playing a significant part in derailing Harriet Miers [sic] nomination, the Ethics Scoreboard hereby condemns its conduct, along with that of its many allies, as lacking in fairness, civility and justice.
The author of this smear job appears to be one Jack Williams Marshall, who boasts that he is a graduate of Harvard College, and that he has appeared on the Montel Williams Show. He accuses us of --- among other things --- comparing Harriet Miers to ââ‚Å“Caligula's horseâ₦the one the famously unstable Roman despot had declared senator after he had lost whatever sanity he once had."
Itââ‚â„¢s extremely unethical for Mr. Williams Marshall to make accusations like this without actually referencing or linking to any of our posts. To my knowledge, none of our posts ever mentioned ââ‚Å“Caligula." Confirmthem does accept comments from the public, and four of our commenters did mention Caligula (here); one of those commenters compared Miers to Caligulaââ‚â„¢s horse, writing that ââ‚Å“this is the worst appointment since Emperor Caligula named his horse to the Roman Senate." However, none of our bloggers is responsible for what visitors say in their comments, much less for what our fellow bloggers say. A blogger at National Review mentioned Caligula, but that hardly makes our website responsible, especially considering that confirmthem bloggers have occasionally criticized National Review --- and of course National Review is free to criticize us too (occasionally). In case it's not obvious from the foregoing, I personally think that comparing Harriet Miers to Caligula's horse is wrong, but why Mr. Williams Marshall attributes such a thought to this website or to our bloggers is beyond me.
Mr. Williams Marshall and his so-called "ethics" site also should have had the decency to acknowledge that several of our bloggers were indeed defending Harriet Miers, or at least urging that people keep an open mind about her nomination. Here are just a few examples (click on any asterisk): * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Mr. Williams Marshall also complains that some of our bloggers at confirmthem asserted that Harriet Miers is a ââ‚Å“crony." By what leap of imagination is such an assertion "unethical"? Maybe unfair, or inaccurate, or harsh, but "unethical"? Prominent liberals were using that exact language about Miers, and worse. Barbara Boxer: ââ‚Å“Hereââ‚â„¢s what I know about Harriet Miers....I know that sheââ‚â„¢s a crony of the president." Jonathan Turley said Miers was on a par with ââ‚Å“infamous Truman cronies Harold Burton and Sherman Minton."
Mr. Williamsââ‚â„¢ Marshall's charge that this website is unethical stands alongside his acknowledgment that confirmthem is "professional and articulate." I find it kind of hard to understand how someone can be unethical and professional at the same time.
Yes, as Williams Marshall notes, one of our bloggers did excerpt a David Brooks column from the New York Times. How does that make confirmthem less ethical than the New York Times? Mr. Williams Marshall also says that, ââ‚Å“The site's primary author, who isn't a lawyer, obviously knows nothing about what she is writing aboutâ₦." but I have no idea who Mr. Williams Marshall is referring to. Williams Marshall furthermore notes that one of our bloggers quoted Charles Krauthammer. I hadnââ‚â„¢t realized that quoting Charles Krauthammer suggests a lack of morality.
What would be very ethical would be for Mr. Williams Marshall to offer us an apology.
Posted in Analysis and Predictions —
Posted at 4:12pm on Jan. 24, 2006 The Vote Tally in the Full Senate
By AndrewHyman
California Yankee is keeping a scorecard.
UPDATE: The Wall Street Journal has a tally too.
Posted in Alito —
Posted at 3:25pm on Jan. 24, 2006 The Wages of Crying Wolf
By carney
For the first time on the web, I have posted John Hart Ely's classic 1973 criticism of Roe, "The Wages of Crying Wolf." Ely is pro-choice, and writes at one point, "Were I a legislator I would vote for a statute very much like the one the Court ends up drafting." But he argues at length that Roe is a horrible decision. One highlight:
What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framersââ‚â„¢ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nationââ‚â„¢s governmental structure.
Posted in Uncategorized —
Posted at 2:06pm on Jan. 24, 2006 Mainstream, Etc.
By DanCT
Dan Gerstein, former communications director for Senator Lieberman (D-CT), wrote a great article for WSJ (subscription required) on the Democrats' performance regarding the Alito nomination. Among other gems, he writes:
This episode shows we don't have any leader in power who will tell our base that we're not going to become a majority party again by telling the majority they're out of the mainstream.
.
Posted in SCOTUS —
Posted at 12:56pm on Jan. 24, 2006 Alito Approved by Judiciary Committee
By AndrewHyman
It's a party line vote so far. Feingold and Schumer haven't voted yet, but everyone else has, according to C-Span.
UPDATE: I listened to Sen. Feinstein speak for a little while. She's voting "no" for one reason: Roe. She says that women ought to have the rights described in that decision. What she didn't bother to explain is why she thinks that the framers of the Constitution enshrined those particular rights. In the past, Feinstein has advocated a statutory Patient's Bill of Rights as well as a constitutional amendment to protect victims of crime, but in neither instance did she advocate that the courts should simply enforce those rights without a new statute or constitutional amendment.
UPDATE #2: C-Span says the final vote is 10-8.
Posted in Judiciary Committee —
Posted at 2:38am on Jan. 24, 2006 Polling, Alito, and Dems' Attacks
By DanCT
Alito conducted himself with grace, intelligence, and equanimity during the hearings and came across as careful, considerate, competent, and not at all as the raging ideologue that the Democrats would have us believe. As the Democrats were giving him their best shot, Alito's support grew. Now, Americans support his confirmation by nearly a two to one margin.
Are the Democrats really foolish enough to try to raise the volume on their attacks even further? If so, Alito's numbers would surely continue to rise as the Democrats' descend further into buffoonery.
The data...
CNN/USAToday/Gallup polls were conducted before and after the hearings.
QUESTION: As you may know, Samuel Alito is the federal judge nominated to serve on the Supreme Court. Would you like to see the Senate vote in favor of Alito serving on the Supreme Court, or not?
Jan. 6-8: 49% yes; 30% no
Jan. 20-22: 54% yes; 30% no
[Sampling error: +/-3% pts]
.
Posted in SCOTUS —
Posted at 11:00pm on Jan. 22, 2006 Gang of 14 Not Ganging Up on Alito
By AndrewHyman
For background info about the Gang of 14, they have their very own Wikipedia entry. The Gang is composed of GOP Senators McCain, Graham, Warner, Snowe, Collins, DeWine, and Chafee, plus Democratic Senators Lieberman, Byrd, Nelson, Landrieu, Inouye, Pryor, and Salazar. Below the fold is recent info about their stances on the Alito nomination.
Nelson and Pryor "have said a filibuster wouldn't be justified against Alito under an agreement that averted a showdown with Republicans over judicial nominees."
Byrd "said on the Senate floor in December that Alito would not be filibustered."
Snowe "does not believe that Judge Alito warrants a filibuster at this juncture...."
Chafee "'has said he has not seen any extraordinary circumstances,' spokesman Stephen Hourahan said."
Lieberman "remarked that a Democratic filibuster was a 'definite possibility....'"
Inouye has ââ‚Å“yet to decide how to vote.ââ‚?
Posted in News —
Posted at 7:46pm on Jan. 22, 2006 Roe v. Wade at Thirty-Three
By AndrewHyman
Abortion continues to be available on demand, by judicial fiat. The decision was handed down thirty-three years ago today, when the Supreme Court declared that the Constitution ought to protect abortion for any reason until "viability," at which point a baby is strong enough to survive a premature birth with available medical assistance. The Supreme Court noted in 1973: ââ‚Å“Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."
Ever since 1992, the Supreme Court has refused to reconsider the wisdom of Roe v. Wade. Yet, the vast majority of women have always believed that abortion should generally be illegal after twelve (12) weeks from conception. We now know without any doubt that the line drawn in Roe v. Wade was an arbitrary act of legislation:
The [Roe v. Wade] opinion's author, Justice Harry A. Blackmun, said in one internal court memo that he was drawing ââ‚Å“arbitrary" lines about the times during pregnancy when a woman could legally receive an abortion. In another memo, Justice Potter Stewart, who joined the Blackmun opinion, said the determination in the opinion about these lines was ââ‚Å“legislative."
Bob Woodward, The Abortion Papers, Washington Post, January 22, 1989 at D1. For additional pro-choice criticisms of Roe, see here. Perhaps one day the Court will find time in its schedule to consider this issue more thoroughly than it did in 1973. Perhaps the Court will then realize that full equality for women does not require giving women a license to kill.
Here's what Justices White and Rehnquist said in 1973:
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
Some biological facts:
"At two months of age, the human being is less than one thumb's length from the head to the rump. He would fit at ease in a nutshell, but everything is there: hands, feet, head, organs, brain, all are in place. His heart has been beating for a month already . . . . With a good magnifier the fingerprints could be detected." The Human Life Bill, S. 158: Hearings Before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, 97th Cong., 1st Sess. 7-10 (1981) (testimony of Dr. Jerome Lejeune, Professor of Fundamental Genetics, University Rene Descartes).
"Lively activities [are] observed by ultrasound in the tenth week, when babies rarely pause for more than five minutes." Geraldine Lux Flanagan, Beginning Life 62 (1996).
At eight weeks, "the danger of a miscarriage . . . diminishes sharply." Lennart Nilsson, A Child is Born 91 (1990).
Integrated brain functioning has been verified about seventy days after conception. Peter Steinfels, Scholar Proposes 'Brain Birth' Law, N. Y. Times, Nov., 8, 1990 at A28.
Nine weeks after conception, the baby is well enough formed to bend her fingers around an object in the palm of her hand; in response to a touch on the sole of her foot, she will curl her toes or bend her hips and knees to move away from the touching object. Valman & Pearson, What the Fetus Feels, British Medical Journal, (January 26, 1980).
By nine weeks, a developing fetus can hiccup and react to loud noises. Hopson, Fetal Psychology, 31 Psychology Today 44 (October 1998).
Some remarks of great feminists:
"Guilty? Yes. No matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; But oh, thrice guilty is he who drove her to the desperation which impelled her to the crime!"
Susan B. Anthony, 1 The Revolution 4, 4 (July 8, 1869).
"Infanticide is on the increase to an extent inconceivable. Nor is it confined to the cities by any means. Androscoggin County in Maine is largely a rural district, but a recent Medical Convention there unfolded a fearful condition of society in relation to this subject. Dr. Oaks made the remark that, according to the best estimate he could make, there were four hundred murders annually produced by abortion in that county alone....There must be a remedy for such a crying evil as this. But where shall it be found, at least where begin, if not in the complete enfranchisement and elevation of woman? Forced maternity, not out of legal marriage but within it, must lie at the bottom of a vast proportion of such revolting outrages against the laws of nature and our common humanity."
Elizabeth Cady Stanton, 1 The Revolution 10, 146-7 (March 12, 1868).
"When motherhood becomes the fruit of a deep yearning, not the result of ignorance or accident, its children will become the foundation of a new race. There will be no killing of babies in the womb by abortion, nor through neglect in foundling homes, nor will there be infanticide."
Margaret Sanger, Woman and the New Race (1920).
"Women ... sacrificing to lasciviousness the parental affection...either destroy the embryo in the womb, or cast if off when born. Nature in every thing demands respect, and those who violate her laws seldom violate them with impunity."
Mary Wollstonecraft, A Vindication of the Rights of Women (1792).
Some statistics:
Approximately 55% of all abortions in the United States occur before eight weeks' gestation, and 12% after twelve weeks' gestation.
Alan Guttmacher Institute, Facts in Brief; Induced Abortion (2001).
71% of women say that one reason for their having an abortion after sixteen weeks was not recognizing the pregnancy sooner, or misjudging its gestation, only 2% said there was a fetal health problem, and only about 1% of abortions are related to rape or incest.
Torres & Forrest, Why Do Women Have Abortions? 20 Family Planning Perpectives 169, 170, 174 (1988).
The legalization of abortion led to an approximately ten-fold increase in the total number of abortions.
Syska, Hilgers & O'Hare, An Objective Model for Estimating Criminal Abortions and Its Implications for Public Policy, in New Perspectives on Human Abortion 178 (Hilgers, Horan & Mall eds. 1981).
Some presidents on abortion:
"[A] physician of wealth and high standing had seduced a girl and then induced her to commit abortion-I rather lost my temper, and wrote to the individuals who had asked for the pardon, saying that I extremely regretted that it was not in my power to increase the sentence."
Theodore Roosevelt, An Autobiography, 305 (1913)
"If you don't know whether a body is alive or dead, you would never bury it. I think this consideration itself should be enough for all of us to insist on protecting the unborn."
Ronald Reagan, Abortion and the Conscience of the Nation, 21 (1983).
"I wanted to take just a few brief moments to restate my firm support of our cause and to share with you my deep personal concern about our American tragedy of abortion on demand. We are concerned about abortion because it deals with the lives of two human beings, mother and child. I know there are people of good will who disagree, but after years of sober and serious reflection on the issue, this is what I think. I think the Supreme Court's decision in Roe versus Wade was wrong and should be overturned. â₦ [Y]ou and hundreds of thousands with you across the country have raised a voice of moral gravity about abortion, a voice of principle, a voice of faith, a full voice that properly asserts and affirms the basic dignity of human life. I'm confident that more and more Americans every year -- every day -- are hearing your message and taking it to heart. And, ladies and gentlemen -- and, yes, young people as well -- I promise you that the President hears you now and stands with you in a cause that must be won. God bless you all, and God bless life."
George H.W. Bush (January 23, 1989).
Roe v. Wade was wrong because it ââ‚Å“usurped the power of the legislatures," Bush said. ââ‚Å“I felt like it was a case where the court took the place of what legislatures should do in America," he said. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, ââ‚Å“it should be up to each legislature."
George W. Bush, Boston Globe, p. A12 (Jan 22, 2000).
The bottom line:
It is to be deeply regretted that the American people have been denied the deliberative role in shaping public policy on this issue that has been played by the citizens of other developed democracies. The American people are capable of rising above partisanship on a matter of this gravity. Their voice can and must be heard, through the normal procedures of democracy. For like the practice of slavery, and like Jim Crow laws of the not-so-distant past, the abortion issue raises the most fundamental questions of justice - questions that cannot be avoided, and that cannot be resolved by judicial fiat.
Eunice Kennedy Shriver (founder of the Special Olympics) and Sargent Shriver (1972 Democratic Vice-Presidential Nominee and first director of the Peace Corps), et al., A New American Compact: Caring About Women, Caring for the Unborn, New York Times, July 14, 1992 at A23.
UPDATE: FYI, many states consider the third-party killing of a fetus to be "murder."
Posted in SCOTUS —
Posted at 6:38pm on Jan. 22, 2006 Football open thread
By krempasky
or any other football related discussions.
It's a great day when you can root for the Steelers and cheer on Lynn Swann for GOV at the same time. God bless America.
Update [2006-1-22 16:39:46 by krempasky]: - again, for your listening pleasure. Here We Go...
Posted in Humor —
Posted at 8:49pm on Jan. 21, 2006 Bogus Cartoon
By AndrewHyman
Cartoons can be an effective way of expressing a point of view. For instance, confirmthem recently linked to a bunch of very funny cartoons about the Alito hearings (including one by Jack Ohman of the Oregonian). But --- sometimes --- cartoons can be as misleading as an erroneous news report. Here's an example:
Jack Ohman attributes to Scalia, Thomas, and Roberts the exact opposite of what they actually wrote in the recent assisted suicide case. There's a not-so-subtle difference between the word "includes" and the word "excludes." I'll email Ohman, and will update this post if I hear back from him.
Meanwhile, here are some accurate quotes from judges, in praise of Sam Alito, courtesy of the Senate Republican Policy Committee. And, here are some more funny Alito cartoons.
UPDATE: By the way, Ohman's likenesses leave something to be desired too.
UPDATE #2: Jack Ohman kindly responds: "I sent out a correction later in the day. When you are lettering on deadline, sometimes your mind wanders. That's all that happened."
Posted in News —
Posted at 9:08pm on Jan. 20, 2006 "Teddy's Last Gasp On Alito"
By feddie
The man has absolutely no shame whatsoever.
Posted in SCOTUS —
Posted at 7:28pm on Jan. 20, 2006 Answers to Written Questions
By AndrewHyman
Here are Judge Alito's January 20 answers to written questions from Senators Biden, Durbin, Kennedy, Leahy, Levin, and Schumer. Durbin, Kennedy, and Leahy didn't bother to wait for these answers before announcing how they'll vote.
Hat Tip: Blogs for Bush.
Posted in Alito —
Posted at 5:59pm on Jan. 20, 2006 Shifty News
By AndrewHyman
David Boaz at ReasonOnline notes that major newspapers are talking a lot about the "shift" that the nominee might cause on the Supreme Court, whereas they weren't talking about a shift back in 1993 when Justice Ginsburg was nominated to replace Justice White. Meanwhile, the Senators from North Carolina both say theyââ‚â„¢ll be voting to confirm Alito.
Hat Tip: Volokh Conspiracy.
Posted in News —
Posted at 7:58pm on Jan. 19, 2006 Alito Quotes
By AndrewHyman
The Senate Republican Policy Committee has put together a bunch of particularly significant quotes from Judge Alito's testimony. Meanwhile, the Senators from New Hampshire both say they'll be voting to confirm Alito. There doesn't seem to be much doubt about the ultimate outcome. Even if somehow 41 Senators are willing to attempt a perpetual filibuster, that would very probably be cut short by the nuclear/constitutional/Byrd option.
Posted in Fillibuster —
Posted at 2:15am on Jan. 19, 2006 Baucus to Vote "No"
By DanCT
Senator Max Baucus (D-MT) has announced his intention to vote against confirmation of Judge Alito, saying that Alito is too far outside mainstream judicial thinking and:
He's just not right for Montana, he's just not right for America...
Baucus voted in favor of CJ Roberts, but with Alito he seems to be making the same mistake that Tom Daschle made, viz. siding with the rabid east coast elites (Kennedy/Schumer/Leahy) against the good sense of the people in his deeply red state. May he meet the same electoral fate as his colleague from South Dakota!
HT: Leon H at Redstate.
Posted in SCOTUS —
Posted at 10:50pm on Jan. 18, 2006 Bluster, Fluster, and Filibuster
By AndrewHyman
Democratic Senators Frank Lautenberg, Mark Pryor, Diane Feinstein, and Ben Nelson predict that there will not be a successful filibuster of the Alito nomination.
UPDATE: Simon Dodd suggests that Pres. Bush postpone the State of the Union Address if the final vote on Judge Alito is postponed.
Posted in Fillibuster —
Posted at 9:53pm on Jan. 18, 2006 Ayotte
By AndrewHyman
Here is the Supreme Courtââ‚â„¢s opinion in Ayotte v. Planned Parenthood of New England, which is the first abortion case they've heard in quite a while. The issue was whether a federal court can entirely strike down a parental "involvement" statute for failing to make a health exception. The Court unanimously said ââ‚Å“no.ââ‚?
Justice Oââ‚â„¢Connorââ‚â„¢s opinion for the Court admits that, in Stenberg v. Carhart, the Court did strike down Nebraskaââ‚â„¢s partial birth abortion statute because ââ‚Å“it lacked a health exception.ââ‚? But, the Court blames Nebraska for not having requested a narrower ruling: ââ‚Å“the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.ââ‚? Basically, the Court is arguing that it can use a meat ax whenever the parties neglect to ask for a scalpel. That argument hardly seems persuasive to me, but it does suggest that the Court is inviting states and Congress to present more finely drawn requests to the Court.
Legislators ought to take advantage of that invitation, for example by trying to ban abortions later than two months from conception. After all, "partial-birth" statutes only require one type of abortion procedure instead of another. A few years ago, I described a different "finely drawn" proposal here, that would continue to allow access to these late abortions, but would also allow subsequent penalties against parents who commit this crime.
Posted in SCOTUS —
Posted at 6:30pm on Jan. 18, 2006 A new low
By Zummo
Yes Otter, they can dig even deeper into the gutter. There's a new ad being run by the National Black Justice Coalition taking on Alito and Thomas on gay rights issues. A sample of their good taste:
The ad -- which will be published in the Afro-American Newspapers in Baltimore and Washington, and in Roll Call, the Congressional newspaper -- features a photograph of Justice Thomas, who is black, and his wife Virginia, who is white. Noting their interracial relationship, the ad asks, "Offense Before God?"
Until 1967, Thomas's marriage would have been illegal in 36 states, said NBJC Director of Religious Affairs Dr. Sylvia Rhue. "Forty years ago, opponents of interracial marriage cited the Bible to justify their discrimination. Today, opponents of same-gender marriage cite the Bible to justify their discrimination," Rhue added.
"If Clarence Thomas had been on the Court in 1967, how would he have voted?," the ad asks, referring to the Supreme Court decision that legalized interracial marriage. "If Samuel Alito had been on the court in 1967, how would he have voted?," it continues. The tagline of the ad argues that "using religion to justify discrimination is the real offense before God.
HT: KJL at the Corner. Indeed, Kathryn, they are desperate, and also quite despicable.
Posted in News —
Posted at 3:27pm on Jan. 18, 2006 Further thoughts on <i>Gonzales v. Oregon</i>
By Zummo
While we're in a holding pattern with Alito, I'd just like to add my thoughts on the Supreme Court decision handed down yesterday, as it does point to some issues surrounding our criteria for the Courts and what we expect in future justices.
It's amazing that a case that really is about a fairly arcane statutory matter could carry so much import. As many commentators have observed, this is hardly a groundbreaking decision, and it's quite possible if not likely that any action Congress takes to clarify the CSA so as to deal with drugs related to doctor assisted suicide would pass constitutional muster. But this case elicits a few observations about the Court and the personalities involved in the case.
Though many people are quite astute to the fact that Justices Thomas and Scalia have different judicial philosophies, the general impression is that they are basically one in the same. At least that is the perception among the general public, and even implied by commentators who suggest that any person Bush picks should be in the mold of Thomas and Scalia. And I must confess that their differences are much more substantial than I previously suspected.
Scalia is far less libertarian in his approach to federalism issues than Thomas. Or, more aptly, Scalia is much more likely than Thomas to support the federal government in these sort of federal versus state conflicts. In this way he is almost the opposite of Sandra Day O'Connor, and I will explain why shortly.
Thomas, of course, is much more protective of states'ss rights and, concurrently, much less partial to upholding precedent. In fact, his dissent in the Oregon case is one of the most remarkable dissents I have ever read. While Scalia is known for his caustic wit, Thomas uses the occasion to verbally smackdown the Court majority. It seems he essentially endorses the outcome of the case, but he refuses to sign on to the majority opinion. Rather than write a separate concurrence he chooses instead to completely distance himself from the majority. In effect, Justice Thomas is not dissenting from the opinion or the holding, but he is dissenting wholly from the Court itself. This is a dissent designed specifically to highlight the complete inconsistency in the thinking of at least five members of the Court. In short, he cast a protest vote against the turn this Court has taken, and has basically washed his hands of their reasoning. He is far less conservative tempramentally than his colleague on the right side of the Supreme Court.
As I said, there is another element at play here. Critics have attacked the supposed double standard about states' rights. First, as already mentioned, Scalia is less concerned with upholding the states against the powers of the federal government than are his other federalist-minded jurists. Second, the Baseball Crank explains more fully why this isn't a federalism case per se:
Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.
More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter - there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago. What Schraub is implying here is that Scalia, for consistency's sake, should have concluded that even an act within Congress' explicit powers is impermissible if the intended purpose of that act invades traditional state authority. But that is a much more radical states' rights doctrine than anybody on the current Court embraces, and it doesn't square with the plain language of the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment speaks of delegated powers, not the purposes and intentions to which those powers are put. Indeed, it would be a most unconservative approach (and one specifically dissented from by Scalia in Romer v. Evans) to give constitutional dimension to the intended purposes of an act rather than look at what powers are enumerated and presume that acts taken under those powers are legitimate (as was done in South Dakota v. Dole, an opinion Scalia joined). Schraub's analogy (taken from here) to United States v. Morrison, the Violence Against Women Act case, is misplaced; the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.
The lesson, as usual, is that people who charge conservatives with hypocrisy as often as not end up demonstrating that they don't understand conservative principles.
To follow up on that, I have to clarify two different aspects of federalism.
The first aspect is actually less about federalism than about states' rights. I am referring to those sets of cases which do not involve the federal government, but instead are cases involving a citizen or group of citizens suing a state, ie. Roe, Lawrence, etc. In these cases the federal government has taken no action, but instead the issue is simply whether the states have violated some aspect of the Constitution. It is in these cases where I posit the states are owned much more deference. The Constitution is principally a document enumerating the various powers of the federal government, and in cases where the states have acted absent a federal action, the tenth amendment ought to be respected if said state action does not contravene the plain meaning of the Constitution. As one who does not buy into the incorporation bunk, the petitioners against the state have a high burden to prove that the states have clearly violated the federal charter. (Even allowing for incorporation - which I do not - there is still a high burden).
Now, of course there might be circumstances where the states do in fact violate the federal constitution. To cite an extreme example, if a state allowed a 28-year old to be elected to the Senate, there would be no reasonable justification for the Courts to sanction the state action. I use this axample merely to demonstrate that states' rights are not absolute. There are going to be harder examples surely, and there have been. But the general presumotion should be for the state action to be upheld.
But there is a second strand of states' rights/federalism issues. These involve cases where there is a federal intrusion upon the states, and this is where the Oregon case falls. In a federal versus state battle, the Justices must determine whether the feds have acted in a manner consistent with its constitutional authority.
While the ideological pull for conservatives is still to defer to the states, again this is not absolute. After all, the federal government does have certain powers. If you're an individual who thinks the feds can never interfere in state matters, congratulations, you're anti-Federalist, and your side lost nearly 220 years ago when the US Constitution was ratified. What conservatives sometimes fail to appreciate is that the Constitution enhanced the powers of the federal/national government from what came before - the Articles of Confederation. Of course it did so while placing strict limits on those powers.
As a matter of policy, I think the federal government ought to leave the states largely unmolested. I think William Watkins absolutely nailed it with this piece, and though I personally think assisted suicide should be outlawed, the feds ought to leave the states alone to decide the matter. But that's a policy matter that does not address the constitutional propriety of federal interference, and truth be told neither does this particular case - at least not substantively. Though I think Scalia plays a little fast and loose, his interpretation of the AG's powers regarding CSA seems ultimately more convincing than Kennedy. But I'll have more to say on Kennedy in a minute. Again, I would refer you to the Baseball Crank post mentioned above for a much more articulate explanation of the legal matter.
I had alluded to Scalia's differences with O'Connor. The reason I find O'Connor fascinating is that I do see a consistency in her jurisprudence. In matters of federal vs. state conflicts (South Dakota v. Dole, Raich, Lopez), she decided almost constantly with the states. But in matters where the states acted without federal interference (Casey, Lawrence) she tended to rule against the states. Basically, she always ruled for the smaller entity. Scalia, meanwhile, has a somewhat opposite pattern, though not absolutely so.
Ultimately, when it comes to federalism issues, we tend to think too abstractly, ie we insist that the state must always prevail. While my personal symapthies normally reside with the more local institution, sometimes the feds should win. I'll paraphrase Roberts here a bit, but when the Constitution says the big boys should win, then the big boys win.
Oh, and one last note on Kennedy: Can someone else write these opinions? Seriously, like, any other left-leaning member of the Court would do. Maybe Breyer or Sutter could get the next big assignment, because then at least the majority opinion might be worth the paper it's written on, or at the very least it might, you know, make sense.
I love the Gipper, but man did he f*** up that pick.
Posted in SCOTUS —
Posted at 9:07pm on Jan. 17, 2006 Senator Kennedy Resigns
By AndrewHyman
From the all-male Owl Club, that is.
Meanwhile, Senator Ben Nelson of Nebraska says he'll be voting for confirmation of Judge Alito.
Posted in News —
Posted at 3:27pm on Jan. 17, 2006 Assisted Suicide
By AndrewHyman
The U.S. Supreme Court today let stand Oregonââ‚â„¢s one-in-the-nation assisted suicide law. The case was Gonzales v. Oregon. The dissenters were Chief Justice Roberts, Justice Scalia, and Justice Thomas. Justice Kennedy wrote the Courtââ‚â„¢s opinion, Justice Scalia wrote the opinion for the dissenters, and Justice Thomas also had an additional dissenting opinion.
This case involved statutory interpretation, so Congress can clarify the statute whenever it wants. It was not a constitutional case. Justice Thomas noted that the ability of Congress to regulate commercial drugs is now "water over the dam," and no justice suggested otherwise. The federal regulation in question requires that every prescription must be issued for a "legitimate medical purpose," and therefore the question was whether suicide is a legitimate medical purpose.
The Court's opinion today certainly has some weak spots. For example, the majority argued that Congress would not have intended to regulate "areas traditionally supervised by the states' police power." But calling physician-assisted suicide "traditional" is quite a stretch. The Court also said the statute ââ‚Å“bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood." But physician-assisted suicide is conventionally understood as being illicit --- not as being legal.
Perhaps the most disturbing part of the Courtââ‚â„¢s decision today is its sweeping language that ANY state-allowed physician-assisted suicide is legitimate and consistent with federal law. This ignores huge flaws in the Oregon law, as well as much larger flaws that may exist in future state statutes on this subject. For example, if a state permits healthy teenagers to get physician-assisted suicide, the US Supreme Court seems to view that as ââ‚Å“legitimate.ââ‚? The Courtââ‚â„¢s holding is extremely broad:
[W]e conclude the CSAââ‚â„¢s prescription requirement does not authorize the Attorney General to bar dispensing controlled substances for assisted suicide in the face of a state medical regime permitting such conduct.
The extreme broadness of this holding virtually guarantees that Congress will act to clarify the CSA. Letââ‚â„¢s hope so. Banning ââ‚Å“illegitimateââ‚? drug-use and allowing ââ‚Å“legitimateââ‚? drug-use is extremely vague language, and Congress can improve upon it.
Hat Tip: SCOTUSBlog.
UPDATE: Senator Lott has announced he'll be running for reelection. Good for him.
Posted in SCOTUS —
Posted at 1:32pm on Jan. 17, 2006 The Delay
By DanCT
The hold over in the judiciary committee is apparently not an OFFICIAL holdover, leaving open the possibility that when the committee meets again on the 24th, there will be yet another week's delay in the vote.
On Monday, Senator Leahy announced:
As we had discussed last Friday, the only purpose a meeting tomorrow would have served would have been to hold over the nomination, pursuant to Committee rules and longstanding practice.
But no meeting was held and no hold over was requested. Instead, we receive Senator Leahy's assurances that when the committee reconvenes, no one will ask for a holdover:
I have assured Chairman Specter that no Democratic Senator will hold the matter over on January 24. He does not anticipate that any Republican Senator will seek to hold it over at that time.
So, although the Democrats can still ask for an official hold over to move the vote back to January 31, we have Leahy's assurances that no Democrat would do that. Unfortunately, Leahy has recently demonstrated that he can't be taken at his word. In particular, with regard to Leahy's assurances to Sen. Specter that the vote would be held on schedule on the 17th and the subsequent breaking of that agreement, the Washington Times reports:
Yesterday, Mr. Leahy was not claiming that anything extraordinary had come up. The only explanation he has offered is that Democrats didn't want to cut short their Martin Luther King Day holiday. But, according to his office, the November agreement was not binding anyway because it wasn't in writing.
Expect another delay.
HT: Bench Memos.
Posted in SCOTUS —
Posted at 2:41am on Jan. 17, 2006 Frist Cancels Recess
By AndrewHyman
A few days ago, Sen. Frist said that --- if Democrats delay the Alito nomination past January 20 --- then Frist would cancel the week-long recess that was scheduled to begin soon thereafter. Senate Democrats have now decided to delay past January 20 (contrary to a previous agreement), and so the Washington Post reports:
Frist announced that ... he would cancel a week-long Senate vacation next week -- a step that he took yesterday, according to his chief of staff, Eric Ueland. Ueland said last night that Frist planned to start debate over Alito in the full Senate on Jan. 25, the day after the committee's vote, adding, "We'll stay on the nomination until the judge is the justice."
Good for Sen. Frist.
Posted in Judiciary Committee —
Posted at 10:01pm on Jan. 16, 2006 Postponement
By AndrewHyman
According to the Senate Judiciary Committee's web site:
The Business Meeting Scheduled for Tuesday, January 17, 2006 at 11:00 a.m. has been POSTPONED one week, to Tuesday, January 24, 2006 at 9:30 a.m.
So, it looks like there will be no committee vote on the Alito nomination until January 24.
Posted in Judiciary Committee —
Posted at 1:10pm on Jan. 16, 2006 Extraordinary Stalling
By AndrewHyman
GOP members of the Senate Judiciary Committee are being urged by pro-Alito groups to show up for the committee meeting scheduled for tomorrow (Tuesday). The only reason the Alito hearings occurred in January instead of December was because the Democratic members promised a committee vote tomorrow (Tuesday). It looks like Senator Reid may be urging his party to break their promise, and hold over Judge Alito in committee for an extra week. The last time a Supreme Court nominee was held over like that was in 1971, when there were two Supreme Court vacancies at the same time.
UPDATE: The CS Monitor reports that Sen. Feinstein is supporting the committee delay, and is also advocating that Sen. Frist forget about his announced intention to keep on schedule.
Posted in News —
Posted at 8:08pm on Jan. 15, 2006 No filibuster
By Zummo
Senator Diane Feinstein has pretty much killed any chance of a filibuster.
A Democrat who plans to vote against Samuel Alito sided on Sunday with a Republican colleague on the Senate Judiciary Committee in cautioning against a filibuster of the Supreme Court nominee.
"I do not see a likelihood of a filibuster," said Sen. Dianne Feinstein, D-Calif. "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."
She said she will not vote to confirm the appeals court judge, based on his conservative record. But she acknowledged that nothing emerged during last week's hearings to justify any organized action by Democrats to stall the nomination.
At this point, the only real question is not whether Alito will be confirmed, but how many votes he will get. I had previously thought that he would only garner a few less votes than Roberts, but I sense that his Democratic support will be minimal at best. No filibuster, but perhaps only 60 votes for confirmation
HT: Captain's Quarters.
Update: Ace of Spades also notes the malaise that Alito's certain confirmation is causing the Democrats. According to the Times:
Disheartened by the administration's success with the Supreme Court nomination of Judge Samuel A. Alito Jr., Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation's judiciary, and that they see little hope of holding off the tide without winning back control of the Senate or the White House.
In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.
Suh-weeeeet.
Posted in News —
Posted at 3:57am on Jan. 15, 2006 The <em>Post</em> and the <em>Globe</em>
By AndrewHyman
The Washington Post has a thoughtful editorial on Sunday endorsing confirmation of Judge Alito. In contrast, the Boston Globe has a moronic editorial against Alito, which I won't bother linking to. Ed Whelan responds to the Globe here.
UPDATE: The Chicago Tribune says that, "He deserves every senator's vote." Ditto the Philadelphia Inquirer. And, the LA Times says, "one of the obligations of senators in the minority, after forcing a nominee to listen to them, is allowing the president's nominee an up-or-down vote." Also, Sen. Feinstein says she opposes a filibuster of Samuel Alito.
Posted in News —
Posted at 6:36pm on Jan. 14, 2006 Democrats Put Words in Senator Reid's Mouth
By AndrewHyman
Associated Press is reporting:
Democrats say they won't be ready Tuesday to vote on his [Alito's] nomination since Senate Democratic Leader Harry Reid of Nevada has called on party members to hold off making a decision until after a meeting Wednesday....
But here's what Reid actually said:
Senate Democratic leader Harry Reid "is urging all Democrats to refrain from committing to a vote either for or against confirmation prior to the caucus next Wednesday," Reid spokesman Jim Manley said.
Obviously, a vote in the Judiciary Committee does not commit a Senator to vote for or against confirmation. As described by Senator Specter below the fold, the Democrats promised to have a Committee vote on Tuesday, absent extraordinary circumstances. I haven't seen anything from Reid that contradicts their promise. Let's hope all ten Committee Republicans show up on Tuesday at 11 AM, whether or not the Dems show up.
Here's what Senator Specter said about scheduling, on Friday the 13th:
SPECTER: The president, as is well known, wanted the matter decided before Christmas and it seemed to me that was not realistic. We had to do it right and not do it fast.
And then the issue came up, OK, not before Christmas, then when?
And I wanted to start the hearings the day after New Year's. I wanted to start them on January 2nd.
And the Democrats have a right under our committee practices to delay for a week and it seemed to me that, that week could be given from the second to the ninth and that would be the week's delay.
And Senator Leahy and I are under -- we have a lot to consider. We have committee members who have views and we have a caucus, caucuses which have views.
But at any rate, we came to terms on what I thought was done, and Senator Leahy and I then went up to the radio-TV gallery and I want to read a bit of the discussion which we had there.
And I don't do this in a legalistic sense to mind Senator Leahy; I do it to set the parameters as to where we've been and the views that my committee members have and which I have.
And this is the transcript.
Quote, "But at any rate, Senator Leahy and I have worked through it and said it could be delayed a week in any event by any senator who wants to hold it over for a week; that we would put that week back at the start on the ninth with the good-faith understanding that our intent would be to go to the executive committee meeting on the 17th, the day after Martin Luther King holiday. So the schedule will be that we'll start hearings at noon on the ninth, we'll have them on Tuesday the 10th, Wednesday the 11th, Thursday the 12th, Friday the 13th, and Saturday the 14th, if necessary. Then we will go to the exec on the 17th.
"And here we can't get everybody bound in writing to waive in advance, but Pat Leahy and Arlen Specter have had no problems, nor have we, anybody on the committee, of not fulfilling what we have said we'd do as a matter of good-faith intent, which would put the executive session on the 17th. We finished that with Chief Justice Roberts in the morning and then we would go to the 18th, 19th, and 20th for floor debate with a vote on the 20th."
There's more dialogue and Senator Leahy then put in a limitation. Quote, "Obviously, this leaves room if something extraordinary comes up and frankly, neither Senator Specter nor I anticipate or expect," closed quote. And I didn't object to that.
It seemed to me that, that was a reasonable condition which might change what I had said earlier.
It is my intention to adhere to that schedule and to set the executive committee meeting for next Tuesday the 17th in Dirksen 226, our regular hearing room, at 11:00 a.m.
SPECTER: Senator Leahy?
LEAHY: Well, of course, we did this on November 3rd and the discussion was had by the -- you're absolutely right -- by Senator Frist, who was responding to the -- I won't characterize it as pressure but the direction he had received from the White House to vote for it prior to Christmas.
You may recall that Senator Frist at first said that the Senate would adjourn for the year in the first week in October and then that under every conceivable circumstance, the week before Thanksgiving. Instead there was the joyful singing of Christmas carols in the halls as we were finishing up just a few days before Christmas.
Had we followed what the White House had told Senator Frist they wanted and gone before Christmas, of course we couldn't have even had the hearing.
We were having votes every 10 minutes. It would have been chaotic. It would not have been the dignified and thorough kind of hearing we had here. On January 2nd, of course, was a holiday. We could have come back that day and had the hearings.
I think it -- as I stated at the press conference, it would have meant destroying any of the staff's attempt to have any time over the holidays with their families. They had lost much of the -- any of the family time during the normal school vacations in August because we had to prepare for the Roberts hearings.
This was, of course, the third nominee of the president's for this seat, and I would have much preferred, as you know, for a personal reason to have had it the first week in January because of long, long, long-standing personal plans for this week which I canceled because otherwise it would have meant canceling everybody's time with their families at Christmas.
I have been told that a number of our members are going to be home for Martin Luther King events this weekend, will not be back on time on Tuesday, and so they will exercise their rights.
And as you and I discussed privately prior to that press conference, of course any senator could exercise their right to put it over, a right that you and I -- both of us have served as chairman -- something you and I have always protected.
I understand from something the majority leader said that, again, even though the court doesn't come back in until the latter part of February, that the White House has told them they want the hearings to -- or wants the debate to begin before the president's State of the Union.
Even if we had -- I don't have a calendar before me, but even if we had -- if we put this over from next Tuesday to the following Tuesday, there's no reason why then it couldn't be on the floor on Wednesday, which is still one, two, three, four, five, six days prior to the State of the Union -- just in case you're wondering.
(LAUGHTER)
SPECTER: Well, this is about the first time Senator Leahy and I haven't agreed on something, but there has to be a first time for everything.
But I propose...
LEAHY: I agree you're a superb chairman. You agree on that, I hope.
(LAUGHTER)
SPECTER: And the reciprocity of respect I think is pretty evident the way we've conducted these hearings.
And I appreciate what Senator Leahy has said about the full and fair. And he used the word "dignified," I think they are dignified. There's a Latin maxim, "The exception proves the rule."
There might have been four minutes in the hearing when it wasn't dignified, but we worked through that as well.
About the only thing the respective parties have been able to agree to on this whole proceeding is that Senator Leahy and I have functioned collegially and have produced a full and fair and dignified hearing.
SPECTER: And as far as I'm concerned, we're going to proceed on the 17th at 11:00. And if the right of the...
LEAHY: Right of any senator.
SPECTER: Well, if they're held over, they're held over. I had thought we had -- and I don't fault Senator Leahy -- I thought that the Democratic caucus knew what we were doing. And they certainly knew about it after we said it.
But we'll work through this problem like many, many others. This is not a gigantic problem.
LEAHY: I think one of the problems is that whether this affected it or not, I think the fact that the time we were going to wrap up the session, the time which is determined by the leadership, by the majority leadership, kept changing. It kept changing almost day by day by day by day. And it probably has put all the pressure on everything else.
I would hope that we can work this out. Maybe you and I -- we have each other on speed dial at home. And Senator Specter has heard more descriptions about my farm house than -- let's get some of these hearings out of the way and you and I can sit up there and have dinner and have a good time.
But we'll talk about this over the weekend.
....
LEAHY: I'll work with you, of course, on the scheduling of this. I had obviously not realized, one, that it would go so late in the year but, two, that we would have a number who were not prepared to vote on Tuesday and it would just follow the normal rules. But I have no problem voting the following Tuesday.
You actually picked up a couple days by having the markup on a Tuesday, not a Thursday, and voting the following Tuesday. And I guess it would be on the floor then Wednesday and off we go.
Ahem! Excuse me. It is not emotion. It's a Friday afternoon vote. Just as I said, I suspect you and I will vote -- you and I will talk over the weekend.
Posted in News —
Posted at 4:47am on Jan. 14, 2006 Alito Hearing Cartoons: Click on Thumbnails
By AndrewHyman
Posted in Judiciary Committee —
Posted at 9:54pm on Jan. 13, 2006 Frist on Alito
By AndrewHyman
Senator Frist today made the following announcements to his Senate Republican colleagues on an afternoon conference call:
Whenever the Judiciary Committee reports out the Alito nomination, the full Senate will begin work on the nominee the next business day.
If Democrats delay final action past January 20th, he will cancel the recess for the week of January 23rd which he had previously scheduled with the knowledge of Minority Leader Harry Reid (D-NV).
Until the Senate votes, up or down, on the Alito nomination, he will not act on any other legislative item.
It's still not clear whether or not the Judiciary Committee Democrats will keep their word to vote on Tuesday, January 17.
Posted in Alito —
Posted at 8:22pm on Jan. 13, 2006 Michelman's Testimony Today
By AndrewHyman
Among other people, Kate Michelman appeared before the Judiciary Committee today, testifying about her own abortion prior to Roe. She had been questioned by a review board, and required to obtain the consent of her estranged husband. If she had lived in many other states, she and her husband would have simply been barred from making the abortion choice, and a review board would have been irrelevant. In any event, Michelman said today, "I tell you this story . . . because this nomination poses a real threat that women will once again face a choice between the degradation of a review board" and the dangers of "the back alley.â� Below the fold is a link that you can click on, showing in honest detail the "degradation" that can result from abortion. And let's be honest about another thing: even if this nation were to guarantee perfectly safe and free abortions for everyone up until a child is strong enough to survive a premature birth, Ms. Michelman and this Supreme Court would still oppose the slightest subsequent fine or other deterrent penalty for mothers and fathers who commit this crime. Ms. Michelman and her colleagues dehumanize the unborn, and pretend that their viewpoints are scribbled somewhere in the Constitution --- but wishes are not truths, even if judges say so.
Here is part of an essay by Amy Sobie and David Reardon, discussing Kate Michelmanââ‚â„¢s particular type of situation:
By immersing themselves in the political fight over abortion, post-abortive women and men are satisfying several psychological needs. First, they are surrounding themselves with like-minded activists who reinforce the rightness of their decision. Second, each time they see other women choose abortion, they experience it as a reaffirmation of their own decision. Third, they are diverting negative internal feelings into outward expressions of righteous anger.
As Magda Denes, a post-abortive woman and pro-choice psychologist, has observed, it is easier for a post-abortive woman to "regard oneself as a martyr and to battle the world" of anti-abortion enemies than to confront the "private sorrows" and the "heartache of self-chosen destiny" which are inherent to the abortion experience.
In the heat of battle with an outside force, one can avoid examining one's own self-inflicted wounds. This is why Michelman honestly does not understand how abortion today is still causing women so much pain and grief. Blinded by the "benediction" she received in the form of Roe v. Wade, she honestly believes that the shame and loss that is inherent to abortion can be wiped away by social approval. She wants to believe it. She needs to believe it. The truth, however, is that social acceptance of abortion can never sanitize what is inescapably a life-destroying experience.
Whether Sobie and Reardon are accurate or not, it is beyond dispute that a vast majority of women believe second-trimester abortions should generally be illegal, which can never happen while Roe v. Wade remains valid. Perhaps someday, in a moment of calm, each current advocate of an unlimited abortion ââ‚Å“choiceââ‚? will finally ask, ââ‚Å“what have I doneââ‚??
http://www.precious-life.com/Abortion_Photos.htm (this is a very graphic image and should only be viewed by adults)
UPDATE: Incidentally, here's an excerpt from a very profound statement by Eunice Kennedy Shriver and Sargent Shriver on this subject, from 13 years ago:
It is to be deeply regretted that the American people have been denied the deliberative role in shaping public policy on this issue that has been played by the citizens of other developed democracies. The American people are capable of rising above partisanship on a matter of this gravity. Their voice can and must be heard, through the normal procedures of democracy. For like the practice of slavery, and like Jim Crow laws of the not-so-distant past, the abortion issue raises the most fundamental questions of justice - questions that cannot be avoided, and that cannot be resolved by judicial fiat.
Eunice Kennedy Shriver (founder of the Special Olympics) and Sargent Shriver (1972 Democratic Vice-Presidential Nominee and first director of the Peace Corps), et al., A New American Compact: Caring About Women, Caring for the Unborn, New York Times, July 14, 1992 at A23.
And here's what Justice Byron White wrote in his dissent to Roe v. Wade and Doe v. Bolton (joined by then-Justice Rehnquist):
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons - convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
I am very glad that President Kennedy appointed Justice White, and that President Kennedy's sister and brother-in-law have taken a reasonable approach to this issue.
Posted in Analysis and Predictions —
Posted at 5:27pm on Jan. 13, 2006 A Helpful Shorthand
By Carol Platt Liebau
Hugh Hewitt has developed an wonderfully helpful shorthand for understanding the judicial approach of the Supreme Court justices, based on the role that "theist" and "majoritarian" principles play in their jurisprudence -- and its relationship to the scent of panic emanating from the left.
Posted in Uncategorized —
Posted at 3:23pm on Jan. 13, 2006 Article in CAP's <i>Prospect</i>
By DanCT
It turns out that the article in the CAP publication Prospect that Sen. Kennedy (D-MA) had so much fun pulling outrageous quotes from and trying to pin them on Mr. Alito was a satire.
Doesn't Mr. Kennedy himself seem like a satire of the "buffoonish Senator"?
Posted in SCOTUS —
Posted at 3:12pm on Jan. 13, 2006 Specter Says....
By AndrewHyman
that the Judiciary Committee will vote on the Alito nomination on Tuesday, January 17, 2006 after 11 AM.
Testimony has now ended.
UPDATE: Leahy objects to a vote on Tuesday, and insists that the Committee vote be held over for a week. Specter says if the Committee vote is held over then it's held over. Leahy and Specter will discuss it over the weekend, and Specter wants to keep the Committee vote on January 17.
Posted in Judiciary Committee —
Posted at 2:26pm on Jan. 13, 2006 The End of Borking?
By Carol Platt Liebau
Daniel Henninger believes that when the Concerned Alumni of Princeton papers came up with nary a mention of Sam Alito, it marked the end of the era of Borking -- or at least of effective Borking.
I'm not so sure. Democrats will continue to "Bork" until they have some other, more effective way to defeat Republican nominees, and as Mr. Henninger himself points out, their lack of aptitude at both con law and interrogation seems to suggest that day is nowhere near.
Until then, every fair-minded person will simply have to hope that other nominees are like Sam Alito -- in that there are so indisputably personally and professionally qualified (and the trumped up charges against them so patently false) that the attempted Borking is revealed for the pathetic maneuver that it is.
Cross posted at CarolLiebau.blogspot.com.
Posted in Uncategorized —
Posted at 11:57am on Jan. 13, 2006 Biden as the audience
By Irishlaw
E.J. Dionne's column today contains this commentary:
Sen. Joe Biden (D-Del.), much mocked for his prolix prattling in the early going, actually made a pithy observation yesterday. He said that nominees "tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them."
Conservatives are right that our abortion debate is distorted because Roe v. Wade has forced too much discussion into the limited confines of Senate hearings over future judges. But that doesn't make the circumlocutions any more satisfactory. Conservative appointees who might well overrule Roe can't quite say so if they are to get the votes they need from Republican senators who support abortion rights and want to protect themselves with pro-choice voters.
Actually, that's not that "pithy" a quote at all. I don't think judges like Judge Alito -- as his colleagues, clerks, and acquaintances are uniformly quick to agree -- take into account public approval at all when deciding questions of the law, or when deciding how expansive to be publically in response to questions about jurisprudence. Nominees may, however, tend to answer "controversial" questions in hearings in proportion to how much they expect to be viciously and triumphantly attacked by senators who see their function as not to genuinely "advise and consent," but specifically to trip up and defeat nominees. All the promises of "it doesn't matter what your answer is" to Roe questions were pure baloney. Of course it mattered to the senators asking the questions; any straightforward answer affirming that Roe is a constitutional mess of an opinion -- as even defenders of its outcome admit -- would be seized upon by pro-Roe (many, pro-abortion) senators who have little understanding of what sound judicial reasoning looks like, but who sure know how to spin with soundbites on the evening talk shows. One exception to this scenario was Judge Pryor, who courageously took a stand against abortion itself and Roe in his appellate hearings -- and successfully got Ted Kennedy to back down. But in this even more public forum, when senators were already grandstanding and attacking on charges that had zero substance, it must be said that circumspection and caution were almost entirely appropriate responses for the nominee to adopt. Judge Alito wouldn't, and shouldn't, care about "public opinion" when deciding or speaking on controversial questions; but he or any nominee would be imprudent not to take account of senators who are going to vote against him no matter what -- but who could also successfully demagogue and derail the nomination.
For what it's worth, consider if the media ever accurately reported on the abortion issue -- explaining, for example, that overturning Roe would not outlaw abortion but would send the issue back to the states; or explaining that Roe has the real effect of legalizing abortion during all nine months of pregnancy for any reason whatsoever, and any attempts by states to restrict these parameters, including bans on grotesque partial-birth abortion procedures, are often immediately struck down by the courts. If the media reported this, then the public would be even more likely than it already is to agree with the idea that abortion should be seriously restricted -- and to agree that the Supreme Court decisions that prevent all serious state efforts to restrict abortion, including Roe, should be overturned. But the public's opinion was never what really mattered in this case -- only the opinion of those who think "super-duper precedents" (such as Roe, but you know, not Plessy or Bowers) should be fervently adhered to. That is, the opinion of those who have the power to defeat nominees for adopting positions that are perfectly reasonable legally, but anathema to the likes of Joe Biden.
Cross-posted at irishlaw.blogspot.com.
Posted in Analysis and Predictions —
Posted at 11:17am on Jan. 13, 2006 Vote timing
By Irishlaw
I didn't see anyone link to this yet, but Ed Whelan reports the Democrats might be trying to stall the committee and floor votes on the nomination. This, after already having to wait two months for the actual hearings?
Just one comment on the committee Democratsââ‚â„¢ ââ‚Å“rightââ‚? to hold over the markup for a week: In his opening comments on Tuesday, Chairman Specter firmly stated his expectation that, absent "something extraordinary," the committee vote on Alito would take place next Tuesday, January 17. In other words, Specter clearly believed that he had a deal with Leahy, even if there was not a formal waiver of the right to hold over the markup. Nothing extraordinary has happened, so letââ‚â„¢s hope that Specter, who has been a model of fairness and firmness, doesnââ‚â„¢t let himself be bullied or cheated by Leahy and has the markup next Tuesday.
It also sounds like Frist would not cave in to "compromises" of later votes. I should hope not -- there's absolutely no reason to delay further here.
Posted in Judiciary Committee —
Posted at 2:37am on Jan. 13, 2006 AWOL Senators
By Lorie Byrd
Michelle Malkin's post about Judge Maryanne Trump Barry and the panel of judges testifying in support of Judge Alito took me back to the Clarence Thomas hearings. After listening to hours of Anita Hill questions, a panel of very eloquent professional women who had worked with Thomas were sworn in to testify on his behalf. Their testimony was incredibly compelling and I remember thinking that the Hill issue was certainly over with their testimony. I was wrong. Not because their testimony was any less impressive than I judged it to be, but because no one (except for political junkies like me) were watching. By the time they testified it was later in the evening and of all the people I talked to at work the next day, none had seen them nor did they know anything about the panel of women in support of Thomas.
Not only would you be likely to get that same response today from the average American regarding the panel of judges that testified in support of (soon-to-be) Justice Alito, but unfortunately you would get the same response from many of the Democrat senators on the Judiciary Committee. It appears that quite a few of them didn't bother to stick around to hear the judges. Don't miss John Hinderaker's comments on the absent senators at Power Line. Unfortunately, I only saw portions of the panel's testimony, but what I saw was absolutely glowing. No wonder the Judiciary Committee bullies didn't stay to hear it.
RyanK adds: On a side note...I didn't know this until today, but Judge Maryanne Trump Barry is Donald Trump's sister!
Update (from Lorie): After reading the comments I couldn't help but also think about Judge Pickering's hearing. That was, in my opinion, an even more vicious attempt to paint the nominee a racist than the Alito effort has been. Pickering had all those state NAACP members that knew him and said he was anything but racist, he had black elected state officials and even Metgar Evers' brother vouching for him, but the senators were unmoved and continued to push the racist (excuse me, "insensitive on race") issue and to quote national NAACP leaders who didn't know Pickering or anything about him, except that he was nominated by George Bush. I became more outraged by those hearings than any before or since. The group of anti-Pickering people, who didn't even know that man, got much more attention than those who had observed him for decades.
Posted in Judiciary Committee —
Posted at 1:48am on Jan. 13, 2006 Tomorrow's (Happy) News Tonight
By Carol Platt Liebau
The Washington Post tips the Democrats off: It's over. Put a fork in 'em -- they're done.
Now that's a piece for Judge Alito to tuck under his pillow tonight. Sweet dreams -- oh, and lights out for the Dems, too.
Perhaps Senator John Cornyn put it best. The ugly attacks on a good and qualified nominee "got as much traction as bald tires on an icy road."
Posted in Alito —
Posted at 8:25pm on Jan. 12, 2006 Joe Biden, Time Traveler
By Carol Platt Liebau
Hugh Hewitt's at it again -- much to Joe Biden's detriment. At7:13 a.m. this morning on "Good Morning America" , "Slow Joe" criticized Judge Alito's allegedly incomplete and insufficient answer to a question he didn't end up asking the judge until 10:25 a.m. -- three hours later.
All the sordid details (and time-stamps) at Radioblogger.
Posted in Humor —
Posted at 3:45pm on Jan. 12, 2006 I Wonder Who Helped Teddy
By Lorie Byrd
Sorry this is too late, but a Polipundit reader just informed me that Ted Kennedy was taking suggestions for Alito questions here. Do you think maybe some of those Kennedy questions were submitted by frequenters of the Democratic Underground message boards?
Posted in Humor —
Posted at 2:55pm on Jan. 12, 2006 Reminder
By AndrewHyman
You can watch the Alito hearing on your computer: click here to watch in RealPlayer, via C-Span. The committee's live video feed is here (RealPlayer). And here's NPRââ‚â„¢s audio coverage in RealPlayer format. Also, the Washington Post has live blogging here, the New York Times has live-blogging here, and SCOTUSblog also has live-blogging.
UPDATE: Starting at 2:30 PM, the ABA testifies, and then witnesses from the 3rd Circuit.
Posted in Judiciary Committee —
Posted at 2:27pm on Jan. 12, 2006 Cass on the Unitary Executive
By Carol Platt Liebau
It's great. Check it out over at Real Clear Politics.
Posted in Analysis and Predictions —
Posted at 2:18pm on Jan. 12, 2006 Vangard
By DanCT
The Vangard affair is a non-issue. As Ed Whelan summarizes it :
In Monga v. Ottenberg, a bankruptcy receiver sought to have a party's IRA assets (which included funds in a Vanguard account) made available to pay the bankrupt party's creditors. Vanguard was a party to the case because the bankrupt party sued it to prevent it from releasing his IRA funds to his creditors. In other words, Vanguard's only interest in the case was as a third party who held funds belonging to someone else â₆it was going to make them available either to the creditors or to the bankrupt party, but Vanguard had no interest in the funds.
Senator Kennedy's complaint is that in 1990 Alito pledged to recuse himself from cases that involved Vangard. Can it even be said that the case "involved" Vangard?
If you asked Vangard fund managers their opinion about whom should be awarded the Vangard shares in the bankruptcy case, they'd say, "That doesn't concern us. Why should we care?"
"But Senator Kennedy says..."
"Look, don't get us involved in this case. We don't care about the outcome and have no interest at all in it."
There was no conflict of interest. There was no Vangard involvement. There was no need for Alito to recuse himself. His pledge to recuse himself from cases involving Vangard was not broken.
Posted in SCOTUS —
Posted at 2:16pm on Jan. 12, 2006 GMA Describes Dem Questioning As "Tough" And "Forceful"
By Lorie Byrd
I caught the first few minutes of Good Morning America this morning (it follows the local news that I watch for weather) and saw the first story of the morning about Mrs. Alito leaving her husband's confirmation hearing in tears. The questioning was described by Charlie Gibson as "forceful" and said that Mrs. Alito gave in to her emotions.
Then, in a short segment on CAP, Claire Shipman said the questioning had to do with Judge Alito's membership in a group at Princeton that hated women and black people. Okay, she didn't really say it that way, but she might as well have. My description of her segment was at least as accurate as Charlie Gibson's description of the Democrats' questioning as forceful. Oh, he also described the questioning as "tough." I can't help but wonder what adjectives and adverbs would have been used to describe such questioning if it had come from Republicans aimed at a Democrat president's nominee. Hopefully, we wll never know.
Jon Ham thinks the nasty Democrat tactics resulting in Mrs. Alito's moment of tears is a new Wellstone funeral moment. He has a good point, but as long as the MSM portrays the incident as they did on GMA (the Dems were just doing their jobs asking tough questions and Mrs. Alito lost control), I wonder if the general public will see it that way. I think they probably will, but it will be up to those of us in the new media to make sure the public gets the whole story and the true picture.
Update: Jon Ham is 1000% right. I posted the comments above before hearing a clip of Katie Couric on Today grilling Joe Biden and asking if the Democrats had gone too far. I really felt like I was having an out of body experience. It was like a strange dream hearing Katie Couric grilling a Democrat and defending a Republican Supreme Court nominee. I was basing my earlier comments on the topic of this post ââ‚“ the segment on GMA. I will post a link to the Today show segment when I find it. If you did not not see or hear it, you just wonââ‚â„¢t believe it.
Newsbusters has more on the Couric interview with Biden.
This is cross-posted at Polipundit.com.
Posted in Analysis and Predictions —
Posted at 1:44pm on Jan. 12, 2006 Grassley
By Zummo
With all due respect, what the heck was he talking about?
Posted in Judiciary Committee —
Posted at 1:37pm on Jan. 12, 2006 Feinstein
By Zummo
Here we go. This should be fun.
- Presidential authority during time of crisis an important question. Discussion of president's plenary authority to defend US. Whather it is true that no law passed by Congress binds him if it impacts his C-i-C role. Goes over Conngress's Constitutional war powers. Seems that Congress has explicit power to pass rules related to NSA. FISA - explicit statute. Then reads procedures. (We are now at 4 minutes into her time). She's "concerned" about 2 questions. If we have explicit authority to pass law, is Pres bound by it, or does he have plenary power. Alito: President like everyone else bound by Const, unless statute is unconstitutional. But Pres is clearly bound to Const as is eveyone else.
- Feinstein continues on this point. Military resolutions on Iraq and war on terror. No indication that wire tapping of Americans permitted. No legislative history (places document in record) authorizing wiretaps. Alito: Two questions. One - statutory interpretation. What is scope of resolutions? If I were required to approach it he'd look at what the law says, are there terms that carry special meaning because of subject matter. He'd have to decide within context of process. Two - Looks at Hamdi. Decision based in part on previous practices.
- Interrupts. Specific statute covers wiretaps, does not that law prevail. Alito: It might eb an open-shut argument, maybe not. Can't presume to have an opinion on this specific issue right now. He'd have to study before reaching judicial decision. If it was determined that there was stat authorization, or even if not, there are constitutional questions to examine. If no stat authorization, then as far as pres powers are concerned, pres must determine if Pres's powers under Art 2 are sufficient to go beyond Congress.
- Even though there is a statutory prohibition, Pres can still act? Alito: Outlines Justice Jackson's argument.
- WR Grace vs. EPA. Alito cast vote to overrule EPA. Cite's dissent,ought to have high degree of deference to EPA. Do you agree with dissent, reviewing court must show deference to agency's area of expertise. Alito: Yes.
- If agency is making decision regarding health, is agency owed deferernce. Alito: Commission owed deference.
- Is EPA owed same deference as other agencies? Alito: Why wouldn't it? Owed broad measure of deference.
- 1986 - truth in mileage act. Alito recommended veto because of federalism issues. Is Alito's opinion that fed gov has primary responsibiloty to safeguard citizen safety? Alito: Both feds and states have responsibilities in terms of health. Primary responsibility is with states, but expansion of fed gov gives feds more responsibility. Regarding memo, not interpreting scope of Congress's authority, but is a recommendation based on federalism policies of Reagan administration.
- As a judge, this would not necessarily be a position you hold? Alito: Judge shouldn't deal with policy questions.
General: Not as contentious as I thought. Decent exchange.
Posted in Judiciary Committee —
Posted at 1:36pm on Jan. 12, 2006 The "Risk" of Martha Alito?
By Carol Platt Liebau
Joan Venocchi, writing in The Boston Globe, drops a remarkably clueless and snide comment into a peevish piece that generally denounces the questions poorly posed and windy questions from the Democrats and the "sickening sycophancy" of the Republicans:
The risk of wife-as-prop was demonstrated yesterday. Mrs. Alito broke down in tears and left the hearing when the going got rough.
Hm. Apparently, in Ms. Venocchi's world, a wife would attend her husband's hearings to sit on the Supreme Court only as a "prop." Couldn't she be engaged, interested, even vested in the outcome? How demeaning to assume otherwise. How . . . how . . anti-feminist. And what is the problem women like Ms. Venocchi apparently have with being, as she characterizes it earlier, "a loyal wife"?
And it seems to me that if there is any "risk" that Mrs. Alito's abrupt departure poses, it's exclusive to the Democrats -- as it underscored the mean-spirited, bullying tactics that have been their only consistent strategy over the past three days.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 1:23pm on Jan. 12, 2006 Why So Hard to Understand?
By Carol Platt Liebau
Senator Feinstein is quizzing President Bush about the President's "plenary powers" (she considerately defined the word for him in the course of her question). She's obviously trying to elicit a comment on the wiretapping controversy.
What is so difficult to understand? The President is obligated to follow the law, unless the law is unconstitutional. A law would be unconstitutional if it infringes upon the constitutionally-bestowed powers of the President. Is any particular law unconstitutional? Can't answer -- that's a question that might come before the Court.
That's all there is to say.
Posted in Analysis and Predictions —
Posted at 12:57pm on Jan. 12, 2006 Kohl question time
By Zummo
An outline of Kohl's question and answer period.
-Kohl asks whether Justices should consider public opinion. Alito responds, correctly, that if they did then federal justices would be elected.
- Kohl notes that the courts regularly strike down laws of elected representatives, so their actions impact the daily lives of people. Alito responds, again correctly, that Congressmen take an oath to uphold the Constitution. Heavy presumption in favor of constitutionality should be made when approaching Congressional decisions. But he echoes John Marshall in essence: an act of Congress repugnant to the Constitiution is void (Marhsall's words, not Alito, but that's basically Alito's response).
- Should judges serve forever? Alito: That question decided in the Constitution. Personal opinion: Not really sure. Good arguments on both sides.
- Followup. Is it good for judges to serve without limits? Alito: If I were at the Constitutional convention, knowing what I know now, perhaps
Me: Interesting line of question philosophically, but not where I'd go.
-Discusses Kelo. What is his opinion? Alito: A topic that certainly tocuhes people's nerves. People have attachments to their homes. Should issue come up again, stare decisis factor would have to be considered.
- Does he agree with O'Connor's dissent in Kelo? Alito: Really can't answer that with more specifics than already given. Decisions are presumptively to be followed. Must weigh issue carefully.
- How will you be different than O'Connor: Alito: She'll be remembered fondly. Was a pioneer. Dedicated. Meticulous.Blah blah blah.
- More praise of the Holy Mother of Moderation. Does he see himself as one who would fill the same role? Alito: Can't really duplicate thge approach of the person you're replacing. In other words: Hell no.
- Ugh. More about O'Connor being in the center. Will Alito try to be that type of justice. Alito: Reiterates his previous point. I am my own person.
Overall impression: What a breath of fresh air from the Democrats. Kohl is an absolutely upright Senator who earnestly wanted to find out what Sam Alito is about from a philosophic standpoint. Yeah, he is full of praise for the patron saint of the "center," but he conducted his Q&A with respect and without pontificating. That's why Kohl is far and away the most respectable of the Dems.
Posted in Judiciary Committee —
Posted at 1:38am on Jan. 12, 2006 Badgering the Witness
By AndrewHyman
Sen. Ted Kennedy badgered Judge Alito on Wednesday about Vanguard. For background about that ridiculous issue, see here. In a nutshell, Alito was asked by the Senate in 1990 about ââ‚Å“potential conflict-of-interest during your initial service in the position to which you have been nominated," and Alito responded that he would recuse himself from cases involving Vanguard. Twelve (12) years later, Alito felt that his initial period of service was over. On Wednesday, Sen. Kennedy absurdly disagreed, ad nauseum. Just like Kennedyââ‚â„¢s implied accusations of racism and sexism, none of Kennedyââ‚â„¢s Vanguard charges will stick to Alito, but the charges do reveal a great deal about the well-intentioned yet extremely misguided party of which Kennedy is a leader.
KENNEDY: You made a pledge to the Senate -- effectively, to the American people --- that you were going to recuse yourself. Now you say, well, it was just for any initial time, and I think 12 years is more than I really had in mind --- you just qualified your answer. How long, when you made that pledge and that promise to the committee, how long did you intend to keep it?...
ALITO: Looking at that question today and looking at the answer, the question was: What you intend to do during your initial period of service? And I think that that's what the answer has to be read as responding toâ₦.
KENNEDY: You've just indicated that when you made a pledge to the committee that you were going to recuse yourself, that you thought that at sometime you were going to be released. And I'd just like to know how long that was going to be. Was that going to be two years, was it going to be three years, was it going to be five years? When did you feel that you were going to be released, if we followed your interpretation?...
ALITO: Looking at the question now, where it says initial period of service, I would say that 12 years later is not the initial period of service. But that was...
KENNEDY: When did it stop then? When did you think that your pledge to the committee halted, after how many years? Six months? What did you intend at the time that you made the pledge? What was in your mind at that time? I'm interested in what's in your mind at this time, but what was in your mind at that time?
ALITO: I can't specifically recall what was in my mind at that time, but I'll tell you what I'm pretty sure I had in mind. I was not a judge, and I was being considered for a judicial position. And what I was trying to express was basically the policy that I followed during all my years on the bench, which is to bend over backwards to make sure that I didn't do anything that came close to violating the code of conduct or give anybody the impression that I was doing anything that was improper.
KENNEDY: The last question on this is how long then -- when you made the promise under oath to the committee that you were going to recuse yourself -- and you understand that now to be in your own interpretation to be just the initial time -- how long did you think that that pledge and promise lasted?
ALITO: Senator, as I said, I can't tell you 15 years later exactly what I thought when I read that question. It refers to the initial period of service. And looking at it now, it doesn't seem to me that 12 years later is the initial period of service.
KENNEDY: My question to you, which I guess I'm not going to get an answer to, is when did it? Is 10 years? How about three years? Is that?
ALITO: I do not know exactly what the time limitation would be, but 12 years does seem to me to be not the initial period.
Posted in Judiciary Committee —
Posted at 1:31am on Jan. 12, 2006 Why the Hysteria?
By Carol Platt Liebau
Earlier this evening, I appeared as a guest on The Al Rantel Show on Talk Radio 790 KABC in Los Angeles.
Al asked a provocative question: Why do Democrats become so unhinged over Republican presidents' Supreme Court nominations, while Republicans treat liberal nominees like Justices Ginsburg and Breyer with courtesy and restraint?
To me, the answer seems pretty straightforward: Despite their protestations to the contrary (and their pretensions to representing "ordinary people"), Democrats know that their agenda (especially their stands on social issues) have limited popular appeal in general, and especially in an era where both the executive and legislative branches are dominated by Republicans, at least on the federal level. They are therefore dependent on the courts -- not only to advance their agenda, but even (at least in their minds) to prevent its roll-back. Hence the hysteria. Is there any Democrat, even, who would dispute this analysis?
And, of course, there are the special interest groups that must be appeased.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 12:16am on Jan. 12, 2006 Too funny
By Zummo
Ed Whelan reports:
I have been informed by a very reliable source that Senate Judiciary Committee staffers have reviewed the entirety of William Rusher's CAP documents at the Library of Congress and have determined that those documents make no mention at all of Alito.
And he's a fool as well, I see.
Posted in SCOTUS —
Posted at 11:31pm on Jan. 11, 2006 Scum
By Zummo
At first when I heard the news about Mrs. Alito crying at the conclusion of the hearings today, I was merely upset for her. It must be difficult to hear your husband attacked as hers has on ethical grounds, with several Senators more than implying that perhaps he is a racist. But the more I reflect on what has transpired, my mood has turned even angrier. I am fed up with the Democratic party and its leadership, and I have had ENOUGH of the underlying assumption that conservatives are all just racists at heart. A good man has had his character maliciously impugned in order that tinfoil hat-wearing moonbats can be assuaged by the lords of their political party.
Edward Kennedy is a sad, pathetic old man. He represents the very worst of all of American politics. The privileged son of an anti-Semetic, bootlegging, womanizing jerk, he has the gumption to even remotely impugn any element of Alito's character? This same man who left a woman to drown while he got away free to booze away the rest of his life is now sitting on high in the Senate chamber to accuse Samuel Alito of being a racist for his half-hearted participation in a student group over 30 years ago. If it weren't so infuriating it would almost be funny. But it's not. It's disgusting and shameful.
Does any Democrat on the judiciary committee truly believe that Samuel Alito is a racist? I would wager that deep down they absolutely know he is not a racist, but in their sick and desperate attempt to take down this man by any means at their disposal to appease the rav ing lunatics that now makeup an ever-growing proportion of their party, they will smear him. It is absolutely sickening to see that sanctimonious vermin representing my EX- home state of New York to pontificate as he does, to pretend to be somehow morally and intellectually superior to the man he is questioning.
I have had enough of this. This farce is not about constitutional principles, not in the least. At first I accepted that, knowing full well that this was not a serious attempt to grapple with Alito's qualifications and philosophy. But it has become a sick sideshow all for the glorification of people who aren't worthy to lick Samuel Alito's shoes.
Posted in Uncategorized —
Posted at 10:36pm on Jan. 11, 2006 Transcript and Video For Day 3 of Alito Hearings
By AndrewHyman
Via The New York Times, the transcript of today's hearing is here. Video of the hearing is accessible in two parts: part one; part two (RealPlayer required), from C-Span. Looks like an imminent confirmation to me....which seems like something to be pleased about, all in all.
Hat Tip: How Appealing.
UPDATE: The NY Times transcript doesn't seem to be complete. Here's Part I of a WaPo transcript, here's Part II, and here's Part III.
Posted in Judiciary Committee —
Posted at 9:19pm on Jan. 11, 2006 Spinning the Polls
By Carol Platt Liebau
A Los Angeles Times news analysis by Ron Brownstein contains the following language:
Two new national surveys found that about half of Americans backed Alito's confirmation. In a CNN/USA Today/Gallup survey released Monday, 49% said they supported his confirmation, 30% said they opposed it and 21% were uncertain; an ABC/Washington Post survey released Monday recorded similar results. In both surveys, Alito's support was slightly lower than the level recorded for Roberts as his hearings began in September.
Oh, really? Was Ron Brownstein referring to this ABC/WPost poll? ABC's coverage of it reads a little differently:
Overall, 53 percent of Americans support Alito's confirmation while 27 percent oppose oppose it, with 20 percent undecided. Views haven't changed substantially since President Bush nominated Alito in late October. In terms of public sentiment, he's in about the same position as John Roberts was at the opening of his hearings to become chief justice.
What a difference the reporting can make. Because the ABC/WPost poll could pretty accurately be read to conclude that "Americans favor Alito's confirmation by a margin of 2:1." Pretty different than the impression left by asserting that "about half of Americans backed Alito's confirmation."
Posted in Analysis and Predictions —
Posted at 7:41pm on Jan. 11, 2006 Shameless Bullies
By Marshall Manson
Judge Samuel A. Alitoââ‚â„¢s wife Martha left the confirmation hearing room in tears this evening, the DRUDGE REPORT has learned.
[snip]
One senior Republican in the hearing room said of the situation: ââ‚Å“After three full days of attacks against her husbandââ‚â„¢s character, Mrs. Alito had enough. Democrat behavior during this hearing has not only been wrong, itââ‚â„¢s been embarrassing. Ted Kennedy is nothing but a bully.ââ‚?
It won't be news to readers of this site that the Democrats have no shame, but when will the media -- the self-proclaimed arbiters of fairness in the public arena -- step up and highlight their pathetic behavior?
UPDATE: Jan Crawford Greenberg, the outstanding Supreme Court reporter for the Chicago Tribune, just recounted the whole episode on public television. She said the whole day -- and the raft of hateful and pathetic attacks -- have been overwhelming and that finally seeing Senator Graham rising to her husband's defense seemed to push her over the edge.
UPDATE II: Just noticed Wendy Long's statement. It's too good not to include:
ââ‚Å“Ted Kennedy and Chuck Schumer, the big bad boys of the Judiciary Committee, have turned these hearings from ââ‚ËœGroundhog Day' into 'Kennedy the Barbarian.' These are the men who posture as being sensitive to women's rights and so opposed to violence against them. Well, their relentless verbal violence and character assassination of this good man finally took its toll on Mrs. Alito. It's bad enough that these sanctimonious liberals lecture everyone else about sensitivity to others, especially women, but when they hypocritically hammer away with their pointless personal attacks on a fine judge and a great man, accusing him of being a racist, sexist, liar, do they care about him as a person, or about the feelings of his wife and family who sit there, hour after hour, day after day, listening to the verbal abuse they spew out? Sen. Graham's apology on behalf of his Democrat colleagues was generous, but women calling us from around the country want the offenders to apologize themselves. And for the abuse to stop.ââ‚?
Posted in Alito —
Posted at 6:19pm on Jan. 11, 2006 A Crying Shame
By Carol Platt Liebau
In today's LA Times, Stephen Dujack laments his removal from the Democratic anti-Alito witness list, comparing the debacle to an episode of "Friends."
Really, I think he's right. Dujack sounds like a member of the left in good standing, and the American people deserve to hear what he has to say. Return him to the witness list! Please. Please. Please.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 5:32pm on Jan. 11, 2006 Rusher Speaks
By Marshall Manson
Today's Kennedy grandstanding plunked former National Review publisher William A. Rusher firmly in the spotlight. And NRO's Kathryn Lopez is already on the case, completing and posting an informative interview with Mr. Rusher.
Lopez: Do you know Samuel Alito? Do you remember him involved in CAP?
Rusher: I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all.
Lopez: Are you surprised that CAP has become such an issue in Alito's hearings?
Rusher: I am surprised that Judge Alito's opponents are so desperate.
It's brief but helpful, so read the whole thing.
Posted in Alito —
Posted at 5:26pm on Jan. 11, 2006 Look Mighty Fine in That Cap, Senator!
By Carol Platt Liebau
Q: What happens to a Princeton baseball hat when Joe Biden wears it?
A: It becomes a dunce cap.
Obviously stung by the laughter that his antics yesterday elicited, at about 2:15 eastern, Joe Biden attempted to reconcile his conflicting statements about Princeton -- and then topped it off by actually putting on a Princeton cap. Oh my.
To his credit, Judge Alito merely smiled, instead of bursting into hoots of derisive mirth. Talk about self-discipline!
And this guy is taken seriously as a potential Democratic presidential contender?!
(Photo HT: Radioblogger)
Posted in Humor —
Posted at 4:54pm on Jan. 11, 2006 Kennedy the showboat
By Irishlaw
The Spectator's Prowler has sources who report this:
According to Senate Judiciary sources, Sen. Ted Kennedy this morning was informed that a number of media outlets - including the New York Times, as well as both Democratic and Republican staff from the committee - had reviewed a wealth of documents related to Concerned Alumni of Princeton and that there was no evidence that Supreme Court nominee Judge Samuel Alito played a major role personally or financially in the organization at any time. This information was passed to Kennedy after he raised the issue of possibly requesting a subpoena for all of CAPs documents before he entered the hearing room for the third day of confirmation hearings. "We told him we'd gone through it, and that seemed to be the end of it," says a committee staffer. So big surprise that despite knowing what he needs to know, Kennedy decided to simply create a few moments of entertaining political theater for the nightly news.
And given that these hearings have already been pronounced "boring" even by leftists, I'm sure the esteemed senator will succeed in having his tiff lead the newscasts. How many will actually call him on it being mere posturing?
Posted in Judiciary Committee —
Posted at 4:38pm on Jan. 11, 2006 Alito Registers well
By Quin
Here is how we at the Mobile Register saw the first two days of the Alito hearings.
Posted in Uncategorized —
Posted at 4:10pm on Jan. 11, 2006 Looking Ahead
By Lorie Byrd
Jayson Javitz, my fellow Polipundit blogger, is already moving past the Alito confirmation and is naming his choice for a potential future Bush nominee to the Supreme Court.
Posted in SCOTUS —
Posted at 3:51pm on Jan. 11, 2006 Biggest Alito Hearing Windbag
By Lorie Byrd
Michelle Malkin has a roundup of links to those polling their readers' choices for biggest windbag in the Alito hearings. Ted Kennedy definitely has my vote, but his runners up aren't far behind him.
Others have commented about how much more ridiculous (even than normal) many of the Senators questioning Judge Alito appear when viewed in comparison to Alito with his calm and thoughtful demeanor. That is certainly true and while it was also true in the Roberts' hearings, Judge Alito's facial expressions have made it even more so. While Roberts and others who have recently been through the confirmation process have worn a perpetual smile and have given the appearance that they regard the questions as fair and worthy of a response, I just don't get that vibe from Judge Alito's body language. Judge Alito has been incredibly respectful in his responses, but he is not wearing the big grin that might say to some observers that everything the Senators say is appropriate. Almost as much as anything Judge Alito has said in his responses, that has made me an Alito fan.
Posted in Alito —
Posted at 3:46pm on Jan. 11, 2006 But Enough About Me, Judge; What Do <i>You</i> Think About Me?
By Carol Platt Liebau
Even The New York Times is making fun of the Democratic members of the Senate Judiciary Committee. That's gotta hurt.
Posted in Analysis and Predictions —
Posted at 3:44pm on Jan. 11, 2006 Kennedy and Specter
By AndrewHyman
The NY Times already examined the papers that Kennedy wants, and found nothing. See here.
UPDATE: You can view a clip of the Specter-Kennedy tiff, here.
Posted in Judiciary Committee —
Posted at 3:37pm on Jan. 11, 2006 Kennedy Letter to Specter re: CAP
By krempasky
Ted Kennedy, between drunken fits, somehow found time to send a letter to Judiciary Chairman Arlen Specter.
Predictably, it's another screed about documents. As a total aside - the notion of Kennedy actually writing a letter makes me wonder how he'd deal with a "PC LOAD LETTER" situation. Read on...
December 22, 2005
The Honorable Arlen Specter
United States Senate
Washington, DC 20510
Dear Mr. Chairman:
As you know, when Judge Samuel Alito applied for his job in the Office of Legal Counsel in the Meese Justice Department in November 1985, he submitted a list of his memberships and other activities to impress Attorney General Meese and Assistant Attorney General Charles Cooper with his enthusiastic "philosophical commitment" to their particular constitutional, legal, and political point of view.
Among the organizations he listed was "Concerned Alumni of Princeton" (CAP), an organization created in 1972, the year Judge Alito graduated. The organization was described in the press at the time and in its own literature as opposed to the increasing number of women, African Americans and Hispanics at the university. The organization also published articles critical of the rights of the disabled.
Our former Senate colleague Bill Bradley, a graduate of the university in1965, initially joined the advisory board for the group's magazine, "Prospect," but publicly separated himself from the group in 1973, because he felt it promoted a "right wing view" rather than the "balanced view" he had been led to believe it would present. In 1975 an official report by a committee of Princeton alumni that included William Frist, now Senator Frist, concluded that CAP's "distorted, narrow and hostile view of the University" had "misinformed and even alarmed many alumni" and "undoubtedly generated adverse national publicity."
The heated debate in the University community and in the press continued throughout the life of the organization from 1972 through 1986. For example, Senator Bradley's resignation letter was published in "Prospect" in September 1973, a New Yorker article covered the controversy in 1977, and the Princeton Alumni Weekly carried articles on the group as late as April and June of 1986. "Prospect" was originally mailed to CAP members and contributors, and beginning in 1974 to all graduates listed in the Alumni Directory. The Alumni Weekly was mailed to all living Princeton graduates.
It appears from recent press interviews that Judge Alito became involved with CAP through one of CAP's founders early in CAP's history. In spite of the prominence he gave to CAP in his 1985 application to the Justice Department and its well-known and controversial activities, Judge Alito's participation in CAP was not disclosed in the public documents relating to his 1987 nomination as U.S. Attorney for New Jersey or his 1990 nomination to the U.S. Court of Appeals for the Third Circuit. The subject was not discussed at his 1990 hearing. In fact, Senator Bradley, based on a recommendation Judge Alito had obtained from the judge for whom he had served as a law clerk, introduced and endorsed Judge Alito "one hundred percent" for the Third Circuit.
In view of CAP's troubling opposition to equal educational opportunity for women, minorities, and the disabled, it is important for the Committee to learn more about Judge Alito's involvement in this organization. However, even after his recollection was refreshed by a "document I recently reviewed" (presumably his 1985 job application to the Justice Department), Judge Alito's response to our recent questionnaire states that he cannot remember anything about his membership in CAP beyond what is stated in that document. Unless a further reading of the many documents relating to this issue restores his memory of the matter, we are unlikely to obtain any further information from him on this potentially important subject.
Clearly, to understand fully the importance of the partial facts known from secondary sources, and to avoid the prospect of a delay in our schedule to obtain the full story, we need answers to a number of questions before our hearings:
- Was Judge Alito a member of or contributor to CAP, a participant in any of its meetings or on its mailing list, (1) in 1973, when Senator Bradley's resignation letter was published in Prospect; (2) in 1974, when the controversy was first aired in the New York Times; (3) in 1977, when a lengthy article on CAP appeared in the New Yorker; or (4) in 1986 when the debate over CAP continued in the pages of the Alumni Weekly?
- What was the exact nature of Judge Alito's participation in CAP and his contacts or correspondence with its officers and staff during the years 1972-87?
- Judge Alito lists other Princeton alumni activities in his 1990 and 2005 Committee forms, indicating that he has remained an active and interested alumnus throughout the relevant period. Did he ever personally express a view either publicly or privately on the CAP controversy or the positions advocated by CAP, as many alumni did?
- Was anyone connected with CAP contacted regarding Judge Alito's involvement with CAP, either in connection with his New Jersey Bar application (1975), or in connection with his federal job applications and security clearances (1977, 1981, and 1985), his U.S. Attorney and Judicial nominations (1987, 1990), or his possible selection for the Supreme Court (2001, 2005)?
- At any time before Senator Bradley appeared before our Committee in 1990 to introduce then-U.S. Attorney Alito to the Committee and to endorse his Third Circuit nomination, did Judge Alito write, say or do anything documenting his general attention to CAP news or his specific awareness that Senator Bradley had been a public critic of CAP?
- Did Judge Alito inform Senator Bradley that he had been a participant in CAP before requesting or allowing Senator Bradley to recommend his confirmation as a judge on the Third Circuit?
- During his 1987 or 1990 confirmation processes, did Judge Alito, the Justice Department (including the FBI), or the ABA provide the Committee with any information relating to Judge Alito's membership in CAP?
- Would Senator Bradley's unqualified endorsement of Judge Alito for the Third Circuit have been affected if he had known of Judge Alito's involvement in CAP and his voluntary listing of his CAP membership in support of his selection as a Deputy Assistant Attorney General, the position which put him on track toward his later judicial appointment?
Answers to a large number of these questions are likely to be found in files in the possession of the Manuscript Division of the Library of Congress as part of the "Papers of William A Rusher 1940-1989." Mr. Rusher was Publisher of the National Review and an active founder and leader of CAP. According to the Library's Register of that collection, at least four of its boxes (142, 143, 144, 145) contain the files of "Concerned Alumni of Princeton," including clipping files, background information, correspondence and memoranda, financial records, fund-raising material, lists of supporters, minutes of meetings, issues and other items relating to "Prospect." Box 46 also contains materials relating to T. Harding Jones, a founder of CAP and editor of "Prospect," and a person who reportedly involved Judge Alito in CAP. There may also be other files with records of CAP leaders who were familiar with the nominee's role.
The Congressional Research Service has attempted to gain access to these files, following its usual policy of not disclosing its requestor, but Mr. Rusher has refused to permit access unless he is told which member(s) or committee(s) are seeking it, and unless he can control the use of the materials released.
It is likely that a formal request for access directly from you on behalf of the Committee would be received with more cooperation than the CRS has received so far, and we urge you to make such a request as soon as possible. In view of the importance of the material and its intended use as part of an official Senate inquiry, the request should be for access to the documents without any restrictions on the Committee's use of the information, unless he is aware of specific documents in those files that merit confidential treatment for a stated reason. The request should include the specified boxes and any other boxes containing materials relating to CAP, its activities, or personnel, including "Prospect."
Judge Alito's assertion that he cannot recall anything about his controversial involvement in CAP, requires us to find other ways of fulfilling our constitutional responsibility to get at the facts. The Rusher papers provide a readily available means of doing so. Certainly we do not want to leave the Committee, the Senate, and the nation open to an unwelcome surprise when the papers eventually become public after Mr. Rusher's death.
As always, we thank you for your cooperation and leadership, and your commitment to making the confirmation process as thorough as possible.
Sincerely,
Edward M. Kennedy
Posted in SCOTUS —
Posted at 2:57pm on Jan. 11, 2006 ââ‚Å“Kennedy and Specter Have Wordsââ‚?
By feddie
This almost makes me not completely loathe Specter.
Almost.
Posted in SCOTUS —
Posted at 2:20pm on Jan. 11, 2006 Paging Joe Cella
By Marshall Manson
I get so tired of the same old recycled crap that seems to permeate traditional news sources... Moments ago, I received a copy of a Reuters story headlined, "Alito would give U.S. high court Catholic majority." We've seen the same story before -- from the AP, Washington Post and others. And somehow they all seem to swerve dangerously close to an implied prejudice.
Joe Cella and the folks at Fidelis have been leading the charge to stop this kind of malarkey. Iââ‚â„¢m sure weââ‚â„¢ll be hearing from him soon. Perhaps sooner or later, the media will knock it off. But Iââ‚â„¢m not holding my breathâ₦
UPDATE: Here's a link to the Reuters story.
Posted in Alito —
Posted at 1:50pm on Jan. 11, 2006 A Few Observations
By Carol Platt Liebau
(1) Senator Durbin engaged in a colloquy with Judge Alito about whether Roe v. Wade is "settled law." The inquiry about "settled law" is a little bit like the famous "do you love me?" question, i.e., if you have to ask, you've already got a pretty good suspicion about what the answer is.
It's natural that Durbin would want Alito to sign on to the "Roe=settled" law equation (as, in fairness, Chief Justice Roberts did). But the fact that Durbin wants the admission so badly indicates that, in fact, Roe isn't "settled law," at least in the sense of being effectively immune from reexamination in the way that Brown v. Board of Education or some similar precedent is.
(2) What is Senator Coburn thinking? He has succumbed to the deplorable Dianne Feinstein-style "machisma" (a term coined by David Gelertner in a now-unavailable LA Times column) -- asking Judge Alito about his "heart." One would expect better from a Republican, both on common sense grounds (we're not about "emotion-driven" judging, which implies a results-orientation, and hence the question is irrelevant) and for practical reasons (very few nominees could answer such a question without either sounding like heartless automatons, on the one hand, or simpering emotional idiots on the other).
(3) In an entertaining display of senatorial ego, how amusing was Senator Specter's obvious pique at the Supreme Court's alleged penchant for treating the Congress like "schoolchildren"? Perhaps he understands now how normal Americans feel when courts (state or federal) overturn initiatives that have won majority support from the voters weighing in on them.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 1:29pm on Jan. 11, 2006 Reminder
By AndrewHyman
You can watch the Alito hearing on your computer: click here to watch in RealPlayer, via C-Span. The committee's live video feed is here (RealPlayer). And here's NPRââ‚â„¢s audio coverage in RealPlayer format. Also, the Washington Post has live blogging here, the New York Times has live-blogging here, and SCOTUSblog also has live-blogging.
Posted in Uncategorized —
Posted at 11:13am on Jan. 11, 2006 Random thoughts on yesterday's installment of the Alito hearing
By feddie
First, was anyone else perplexed by Senator Schumer making a big to-do over Judge Alitoââ‚â„¢s use of the word inapt? Is inapt an unusual word? The Chuckster almost acted as if Alito had made the word up. It was very weird. But I confess that I was tuning in and out, so itââ‚â„¢s possible that I misconstrued the entire exchange.
Second, how cool is it that Judge Alito accused his colleagues (in a dissent) of turning the Supreme Courtââ‚â„¢s Lopez decision into a ââ‚Å“constitutional freak.ââ‚? I missed that somewhere along the way, and it gave me a chuckle when I heard Senator Cornyn refer to it in his ââ‚Å“questioningââ‚? of Judge Alito last night.
Finally, my overall assessment of Alitoââ‚â„¢s performance thus far is that he is embarassing the dem senators; making them look like the intellectually bereft lot that everyone knows them to be. Thatââ‚â„¢s not to say the Republican senators are constitutional scholars. Theyââ‚â„¢re most certainly not. But the demsââ‚â„¢ nefarious agenda in this hearing is so patently obvious to anyone with half a brain, that itââ‚â„¢s hard to believe they hold as much power as they do. These are not good people, folks.
Thankfully, Judge Alito will soon be confirmed and the Supreme Court will be one step away from a true conservative majority.
Posted in SCOTUS —
Posted at 2:17am on Jan. 11, 2006 Matthew Franck on Stare Decisis
By AndrewHyman
Professor Matt Franck has a really excellent post over at Bench Memos, so I thought I'd do some copying and pasting:
Schumer succeeded in inducing Alito to say something terribly wrong (in my opinion, as explained here yesterday) about precedent: "I don't agree with the idea that the Constitution always trumps stare decisis." Last time I checked Article VI of the Constitution, it said that the Constitution is the "supreme law of the land," trumping everything including yesterday's Supreme Court decisions when a good-faith revisiting of the same issues leads to the conclusion that they were wrongly decided. Stare decisis means taking precedents seriously as representing the best thought of the past on similar questions once again before the Court; it also means following those precedents when possible, especially in doubtful cases, for the sake of stability. It â₦ cannot mean prizing stability over a considered judgment, free of doubt, about the meaning of the Constitution. But that's what Alito appeared to say. Perhaps he would modify the remark if given a chance.
When utterly convinced of former error, isn't a Supreme Court Justice bound by oath to discard a previous misinterpretation of the Constitution? The answer should be obvious.
Chief Justice Rehnquist accepted the Miranda decision not merely because it had become embedded in our national culture. He also did so because "experience suggests that the totality-of-the-circumstances test which §3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner."
Posted in Analysis and Predictions —
Posted at 12:58am on Jan. 11, 2006 One Question Too Many
By Lorie Byrd
Ed Morrisey has been doing some excellent blogging at the Alito hearing. Visit Captain's Quarters and just keep scrolling. I particularly love his post about the following exchange with Schumer, which I missed.
After holding up his Robert ByrdTM mini-Constitution, Schumer demanded several times whether he still believes as he wrote in his 1985 memo that he doesn't think abortion has Constitutional protection. Alito demurred each time, saying that he would have to weigh each case in light of its facts and its reliance on precedence. Like the bad lawyer he has proven himself to be, Schumer asked one question too many:
Q: Does the Constitution protect free speech?
A: Yes, Senator, the First Amendment protects free speech.
Q. Well, why can you give me a straight answer on that issue but not give me a straight answer on abortion?
A. Because the text of the Constitution explicitly includes the term "free speech".
Case closed. It's like watching the Washington Generals play the Harlem Globetrotters.
(Cross-posted at Polipundit.)
Posted in Humor —
Posted at 12:52am on Jan. 11, 2006 Alito on Substantive Due Process
By AndrewHyman
The part of Judge Alito's testimony today that I found most interesting was on the subject of the Due Process Clause:
The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of our country. And itââ‚â„¢s up to each â₆those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations. The principles donââ‚â„¢t change. The Constitution itself doesnââ‚â„¢t change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to themâ₦.
The 14th Amendment protects liberty. The Fifth Amendment protects liberty. And I think itââ‚â„¢s well accepted that this has a substantive component and that that component includes aspects of privacy that have constitutional protectionâ₦.
The Constitution contains the due process clause of the Fifth Amendment and the 14th Amendment. It provides protection for liberty. It provides substantive protection. And the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.
On balance, I still hope Judge Alito is confirmed, but in my opinion he's flat wrong about the Due Process Clause. You know which clause I mean: the one that has skid marks and footprints on it from the judges who have trampled and driven through it for a century and a half.
Judge Alito says this Clause "embod[ies] the deeply-rooted traditions of our country." So, you'd think that the clause must embody ancient principles like freedom from cruel and unusual punishment, wouldn't you? James Madison, however, explained that the rights in the Bill of Rights were "classed according to their affinity to each other," so that --- as Roger Sherman put it --- they "may be passed upon distinctly by the States.â� No way does due process embody humane punishment.
The states were given an opportunity in 1789 to reject rights deeply rooted in tradition, while simultaneously ratifying the Due Process Clause. There is simply no chance that the Due Process Clause means what Judge Alito says it means. Unlike Judge Alito, Justice Scalia has correctly and repeatedly rejected the doctrine of substantive due process.
And if liberty is substantively protected like Judge Alito says, then why not property? Is Judge Alito prepared to denounce Abe Lincolnââ‚â„¢s view of the Due Process Clause, as applied to property? Here's what Lincoln said, referring to the horrible opinion of the Supreme Court in Dred Scott (which prevented the federal government from liberating slaveowners' property): ââ‚Å“The Constitution itself impliedly admits that a person may be deprived of property by ââ‚Ëœdue process of law.'ââ‚? Lincoln was right.
Posted in Judiciary Committee —
Posted at 10:09pm on Jan. 10, 2006 Day 2 Transcript
By AndrewHyman
Here it is, courtesy of the New York Times.
Posted in Judiciary Committee —
Posted at 8:42pm on Jan. 10, 2006 Chertoff?
By Quin
Again and again the Dems have tried to use Chertoff's words in the "strip search" case to make Alito sound like an extremist. I don't have the witness list in front of me: Is Chertoff scheduled to be a witness? If not, why not? The Senate GOP should check with Chertoff and see if he would be willing to explain just how technical was the issue involved and that he resents being used as a stick with which to beat Alito when indeed he thinks Alito is an excellent judge and will make an excellent justice.
Posted in Uncategorized —
Posted at 8:35pm on Jan. 10, 2006 A Little Fun w/Buffoon Biden
By Carol Platt Liebau
It's not even a fair fight. On his radio show, Hugh Hewitt is playing clips of Joe Biden. This morning, as you'll recall, Biden noted that he "didn't even like Princeton" -- that "all kidding aside, I wasn't a big Princeton fan." Well, apparently he was singing a very different tune a couple of years ago when he made a speech at Ol' Nassau.
It's priceless -- and Radioblogger has the audio. On the Princeton campus, Biden babbles on, extolling the virtues of a "magnificently attractive, intellectually and physically beautiful young girl," and then noting that he would have been "worried" if his son hadn't been "interested." Treading pretty close to that "homophobic" line, aren't we, Senator Biden?
Would this be considered one of the "sophisticated" forms of discrimination you were decrying this morning?
Cross posted at CarolLiebau.blogspot.com (and, just for grins, at Huffington Post).
Posted in Analysis and Predictions —
Posted at 7:05pm on Jan. 10, 2006 Going to the Panels?
By Carol Platt Liebau
The American Spectator blog is reporting that, frustrated with their inability to get traction in the hearings, Democrats are considering cancelling a third day of questions for Alito and going instead to the panels.
Posted in Analysis and Predictions —
Posted at 6:49pm on Jan. 10, 2006 The Liberal Goatherd
By Marshall Manson
Fidelis has created a hilarious animated movie ridiculing the lefties who are spending the week attacking Judge Alito. It's a riot and a welcome diversion from the Dems overwrought, overhyped and over-the-top questionning. Check it out here.
Posted in Alito —
Posted at 6:38pm on Jan. 10, 2006 If You Don't Have the Law . . .
By Carol Platt Liebau
There's a well known legal cliche that goes: "If you don't have the law, argue the facts. If you don't have the facts, pound the table."
Teddy Kennedy's presentation this morning put me in mind of that old saw, given that he seemed to realize he couldn't outgun Alito on the law. So instead, he tried to turn to the facts. After listening to Judge Alito's reasoned explanation of Doe v. Groody (i.e. that a reasonable person could believe that the affidavit in the case was incorporated into the search warrant at issue), Senator Kennedy simply responded with something to the effect of: "But they strip-searched a 10-year-old girl!" There it is -- fact-arguing and table-pounding in just one little comment.
As for the debate on executive privilege, the Democrats appear to be trying to get Alito to make a very commonsense admission: That the President, in fact, doesn't have to follow the law as legislated by Congress if the law is unconstitutional. Everybody knows (or should know) that's true -- but the Democrats clearly want to obtain some sound-bite that they can distort by proclaiming that "Alito believes the President is above the law!!!"
So far, he hasn't given it to them.
Posted in Analysis and Predictions —
Posted at 6:36pm on Jan. 10, 2006 Factcheck.org on Anti-Alito Ad
By Marshall Manson
Surprise, surprise - an anti-Alito ad uses "selective quotes":
IndependentCourt.org, a project of the Coalition for a Fair and Independent Judiciary, released an ad suggesting that Supreme Court nominee Samuel Alito would endanger privacy rights. It says "an independent analysis found that Alito often goes out of his way to narrow the scope of individual rights." The ad fails to note that the same study also says Alito has a reputation as "a restrained judge who follows the law, not his personal beliefs," and that he is a "near absolutist" on the rights of freedom of speech and freedom of religion.
You know - this may sound odd - but I don't even blink an eye when some merry band of liberal hacks comes up with a misleading ad about a nominee. I guess I'm just numb to it. After all - we can barely trust the United States Senators with little "d's" after their name to be honest, why should we expect more from the activists?
Posted in SCOTUS —
Posted at 1:10pm on Jan. 10, 2006 Off to a Bad Start?
By Carol Platt Liebau
John O'Sullivan makes a convincing argument that the Democrats are off to a bad start in the Alito nomination. By concentrating too heavily on their own political commitments, based on their zeal to defeat him, they're acting imprudently -- and not in a way designed to rally the public support that would be needed to bring the nomination down.
He's right. But then again, it may be that the Dems are more focused on showing their special interest group masters how tough they can be -- having essentially given up on the hope of actually being effective.
It's still early -- but neither Kennedy nor Leahy nor Biden were able to lay a glove on Judge Alito this morning.
Tasty Trivia Tidbit: According to Fox News, when it was his turn to question Judge Alito, "Slow Joe" Biden began speaking at 12:24 pm Eastern time, but didn't get around actually to asking a question until 12:35. Anybody surprised?
Posted in Analysis and Predictions —
Posted at 10:53am on Jan. 10, 2006 Tuesday Hearing Set to Begin
By AndrewHyman
You can follow today's hearing the same way as yesterday, starting at 9:30 ET.
The Washington Times took Senator Kennedy to task this morning, pointing out in an editorial that guilt by association is no way to evaluate a Supreme Court nominee --- or a Massachusetts Senator.
Posted in News —
Posted at 12:05am on Jan. 10, 2006 Breathtaking Audacity
By Carol Platt Liebau
Law Professor Robert Gordon (who actually taught me administrative law back in the early '90's) makes an argument against the Alito nomination that's breathtaking in its audacity. He writes:
Why does Bush pick stealth candidates like Roberts and Alito, rather than open and forthright radicals like Michael Luttig of the 4th Circuit or Edith Jones of the 5th Circuit or Janice Rogers Brown of the D.C. Circuit? The obvious reason is that large parts of the conservative agenda are quite unpopular, and candidates who openly avowed it would risk being voted down.
First things first. Surely it's a typo -- and Professor Gordon does not really believe that nominees to the Supreme Court are actually "candidates." I hope.
As to his "stealth candidate" allegations, to the extent that Republican nominees have ever been accused of soft-pedaling their personal ideological preferences in the past, there's a strong argument that doing so is, in fact, a rational response to Democrats who refuse to extend to Republican nominees the same courtesy that Republicans show Democratic ideologues like former ACLU counsel Ruth Bader Ginsburg and former Kennedy staffer Stephen Breyer. When the Democrats can treat, say, the former counsel of National Right to Life and a former Jesse Helms staffer with fairness and respect, then Professor Gordon can start complaining about "stealth" judges. Given the tenor of today's opening statements, it's clear that day will be a long time in coming.
Third and finally, it's amazing that anyone with even the slightest grasp of American legal history would be accusing conservatives of attempting to pack the courts in order to obtain policy victories that they can't otherwise achieve at the ballot box. It's the left-wing history of relying on such maneuvers that have rendered Senate Judiciary Committee and other Democrats hysterical in their efforts to stop any Republican Court nominee at almost any cost (even, for some, that of their own integrity).
Is this really the quality of the commentary that the left is getting from "its" legal scholars?
Posted in Analysis and Predictions —
Posted at 9:28pm on Jan. 9, 2006 The Materials From Day 1 of the Alito Hearing
By AndrewHyman
Via WaPo, you can access the complete transcript of Monday's hearing online in two parts: part I; part II.
Likewise, via C-SPAN, you can view the hearing on-demand in two parts: part I; part II (RealPlayer required).
Hat Tip: How Appealing.
Posted in Judiciary Committee —
Posted at 6:29pm on Jan. 9, 2006 The opening statements
By Zummo
In haiku form.
HT: KJL.
Posted in Humor —
Posted at 6:12pm on Jan. 9, 2006 Letting the Facts Get In the Way
By Carol Platt Liebau
Appearing today on Hugh Hewitt's radio show, Ed Gillespie noted that Democratic senators had made eighteen misstatements and distortions of Judge Alito's record -- in just the opening statements (make that indictments!).
Particularly worthy of note is, as Paul notes below, that Senator Schumer seems to believe that Judge Alito bears a special burden because he's been chosen to replace the (newly-designated) "moderate" Sandra Day O'Connor.
Now Schumer's not a guy to let the facts get in the way of some good rhetoric in any case, but clearly he hasn't read Peter Kirsanow's recent piece in National Review Online. Money quote:
Notwithstanding the fact that positions espoused as an advocate are poor proxies for interpretive doctrine, there are numerous problems with the allegation that Judge Alito is to the extreme right of Justice Oââ‚â„¢Connor on civil rights, not the least of which is that Justice Oââ‚â„¢Connor agreed with Judge Alitoââ‚â„¢s advocacy position 75 percent of the time, more than any other Supreme Court Justice before whom Judge Alito appeared.
Posted in Analysis and Predictions —
Posted at 6:09pm on Jan. 9, 2006 Judge Alito's Opening Statement ...
By AndrewHyman
was well-written and well-delivered. The complete text of his opening statement is below the fold.
The hearing is over for today. Questions and answers start at 9 AM tomorrow.
ALITO: Thank you very much, Mr. Chairman. I am deeply honored to appear before you.
I am deeply honored to have been nominated for a position on the Supreme Court. And I an humbled to have been nominated for the seat that is now held by Justice Oââ‚â„¢Connor.
Justice Oââ‚â„¢Connor has been a pioneer, and her dedicated service on the Supreme Court will never be forgotten. And the people of the country certainly owe her a great debt for the service that she has provided.
Iââ‚â„¢m very thankful to the president for nominating me, and Iââ‚â„¢m also thankful to the members of this committee and many other senators who took time from their busy schedules to meet with me. That was a great honor for me, and I appreciate all of the courtesies that were extended to me during those visits.
And I want to thank the Senator Lautenberg and Governor Whitman for coming here today and for their kind introductions.
During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I might begin this afternoon by sharing that story. The story goes as follows.
This was a lawyer who had never argued a case before the court before. And when the argument began, one of the justices said, How did you get here?, meaning how had his case worked its way up through the court system. But the lawyer was rather nervous and he took the question literally and he said -- and this was some years ago -- he said, I came here on the Baltimore and Ohio Railroad.
This story has come to my mind in recent weeks because I have often asked myself, How in the world did I get here? And I want to try to answer that today and not by saying that I came here on I-95 or on Amtrak.
I am who I am, in the first place, because of my parents and because of the things that they taught me.
And I know from my own experience as a parent that parents probably teach most powerfully not through their words but through their deeds. And my parents taught me through the stories of their lives. And I donââ‚â„¢t take any credit for the things that they did or the things that they experienced, but they made a great impression on me.
My father was brought to this country as an infant. He lost his mother as a teenager. He grew up in poverty.
Although he graduated at the top of his high school class, he had no money for college. And he was set to work in a factory but, at the last minute, a kind person in the Trenton area arranged for him to receive a $50 scholarship and that was enough in those days for him to pay the tuition at a local college and buy one used suit. And that made the difference between his working in a factory and going to college.
After he graduated from college in 1935, in the midst of the Depression, he found that teaching jobs for Italian-Americans were not easy to come by and he had to find other work for a while. But eventually he became a teacher and he served in the Pacific during World War II. And he worked, as has been mentioned, for many years in a nonpartisan position for the New Jersey legislature, which was an institution that he revered.
His story is a story that is typical of a lot of Americans both back in his day and today. And it is a story, as far as I can see it, about the opportunities that our country offers, and also about the need for fairness and about hard work and perseverance and the power of a small good deed.
My mother is a first generation American. Her father worked in the Roebling Steel Mill in Trenton, New Jersey. Her mother came from a culture in which women generally didnââ‚â„¢t even leave the house alone, and yet my mother became the first person in her family to get a college degree. She worked for more than a decade before marrying.
She went to New York City to get a masterââ‚â„¢s degree. And she continued to work as a teacher and a principal until she was forced to retire.
Both she and my father instilled in my sister and me a deep love of learning.
I got here in part because of the community in which I grew up. It was a warm, but definitely an unpretentious, down-to-earth community. Most of the adults in the neighborhood were not college graduates. I attended the public schools. In my spare time, I played baseball and other sports with my friends.
And I have happy memories and strong memories of those days and good memories of the good sense and the decency of my friends and my neighbors.
And after I graduated from high school, I went a full 12 miles down the road, but really to a different world when I entered Princeton University. A generation earlier, I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton. But, by the time I graduated from high school, things had changed.
And this was a time of great intellectual excitement for me. Both college and law school opened up new worlds of ideas. But this was back in the late 1960s and early 1970s.
It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldnââ‚â„¢t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.
Iââ‚â„¢m here in part because of my experiences as a lawyer.
I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized open-mindedness and fairness. He read the record in detail in every single case that came before me; he insisted on scrupulously following precedents, both the precedents of the Supreme Court and the decisions of his own court, the 3rd Circuit.
He taught all of his law clerks that every case has to be decided on an individual basis. And he really didnââ‚â„¢t have much use for any grand theories.
After my clerkship finished, I worked for more than a decade as an attorney in the Department of Justice.
And I can still remember the day, as an assistant U.S. attorney, when I stood up in court for the first time and I proudly said, My name is Samuel Alito and I represent the United States in this court. It was a great honor for me to have the United States as my client during all of those years.
I have been shaped by the experiences of the people who are closest to me, by the things Iââ‚â„¢ve learned from Martha, by my hopes and my concerns for my children, Philip and Laura, by the experiences of members of my family, who are getting older, by my sisterââ‚â„¢s experiences as a trial lawyer in a profession that has traditionally been dominated by men.
And, of course, I have been shaped for the last 15 years by my experiences as a judge of the court of appeals.
During that time, I have sat on thousands of cases -- somebody mentioned the exact figure this morning; I donââ‚â„¢t know what the exact figure is, but it is way up into the thousands -- and I have written hundreds of opinions.
And the members of this committee and the members of their staff, who have had the job of reviewing all of those opinions, really have my sympathy.
(LAUGHTER)
I think that may have constituted cruel and unusual punishment.
(LAUGHTER)
Iââ‚â„¢ve learned a lot during my years on the 3rd Circuit, particularly, I think, about the way in which a judge should go about the work of judging. Iââ‚â„¢ve learned by doing, by sitting on all of these cases. And I think Iââ‚â„¢ve also learned from the examples of some really remarkable colleagues.
When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge canââ‚â„¢t think that way. A judge canââ‚â„¢t have any agenda, a judge canââ‚â„¢t have any preferred outcome in any particular case and a judge certainly doesnââ‚â„¢t have a client.
The judgeââ‚â„¢s only obligation -- and itââ‚â„¢s a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.
Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered.
Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument thatââ‚â„¢s made by an attorney whoââ‚â„¢s appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case.
Itââ‚â„¢s been a great honor for me to spend my career in public service. It has been a particular honor for me to serve on the court of appeals for these past 15 years, because it has given me the opportunity to use whatever talent I have to serve my country by upholding the rule of law.
And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.
Fifteen years ago, when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the Bible and I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich, and that I would carry out my duties under the Constitution and the laws of the United States.
And that is what I have tried to do to the very best of my ability for the past 15 years. And if I am confirmed, I pledge to you that that is what I would do on the Supreme Court.
Hat Tip: Washington Post.
Posted in Judiciary Committee —
Posted at 4:58pm on Jan. 9, 2006 Durbin's question
By Zummo
As predicted, the Dems are hammering Alito on the reapportionement case. Here's Durbin's question that he posed just now (from memory):
Would you stand up for civil rights even if it were unpopular?
This question is mind boggling in its inspidity. Implied, of course, is that only a broad (read liberal) reading of the Constitution would protect civil rights. But, rather than dwell on it, I would rather ask:
Would you stand up for the plain meaning of the Constitution, even if it were unpopular with that segment of the population that is convinced that the federal government ought to guarantee outcomes that it finds agreeable to its sense of moral righteousness?
Posted in Uncategorized —
Posted at 4:42pm on Jan. 9, 2006 Schumer speaks
By Zummo
Senator Sanctimonious speaks, and he notes that Alito has a special burden because of the following factors:
1) He replaces O'Connor (swing vote)
2) Seems to have been picked to placate extreme right
3) Alito seems to hold extreme view.
So far, the Dems, or at the least Schumer, want to harp on Miers rejection. He seems intent on incanting the word extreme, which is a cute ploy. (I wish someone can get a word count on how often he uses that word). He is now twisting the meaning of the Miers' moment to mean that a nominee is specially bound to fully expound upon his constitutional philosophy.
Blah blah blah on O'Connor. Eveidently the Court actually requires a "moderate vote." This is a curious invention, and no doubt would not be true were a Democrat in office. A free lollipop to the first person who can identify in the Constitution where it mandates some so-called "moderate" seat.
Schumer says that Alito leaves impression of being a meticulous thinker, but always reaches conservative outcome. Because, as you know, a careful and objective reading of the Constitution would indeed mandate all sorts of federal intervention in all aspects of our life.
Judicial philosophy: "cause for concern." More on the "unitary executive" bs. Has Senator Schumer or any Democrat actually read Article II? It seems the concept of a unitary executive is precisely what the Framers had in mind. The executive power shall be vested in a President of the United States of America.
More on Rybar, and again he disregards the Lopez precedent. By the way, how did Saint Sandra Day, Our Lady of the Moderation, vote in that case again?
Halfway through I gave up because it's more of the same. Schumer thinks that merely saying the word extreme a bunch of times actually constitutes an argument.
Senator Hatch's statement, spoken as I type this, is a must hear. He rebuts the silliness very nicely.
Posted in Uncategorized —
Posted at 4:20pm on Jan. 9, 2006 With apologies to James Taranto
By Zummo
Ted Kennedy is attacking Alito on ethics grounds, based on Alito's failure to recuse himself in a case against Vanguard.
Mary Jo Kopechne could not be reached for comment.
Posted in Uncategorized —
Posted at 3:55pm on Jan. 9, 2006 Good Sessions
By Quin
My own senator, Jeff Sessions, just did a good job with the opening statement. He directly, by name, contradicted a claim by Kennedy that Alito never ruled in favor of blacks making civil rights claims -- and did it by citing specific cases. Kennedy looked peeved. Good. When a prevaricator is peeved at having his prevarication exposed, then the side of right and honesty and justice is doing well.
Posted in Uncategorized —
Posted at 3:42pm on Jan. 9, 2006 Reapportionment sound bite
By Quin
A very wise reader suggested this sound bite to deflect the attacks concerning one-person,one vote:
"Alito's concerns were simple: He was worried about judges getting politicized. As a judge who believes in modesty and restraint, he worries about a politicized judiciary."
That sound bite then sets the stage for a slightly (but only slightly) longer explanation that for 150 years, the court had treated redistricting as a purely political question and thus one for judges to stay away from -- and that the reasoning in Baker and in Reynolds was so inexact that the courts are STILL trying to figure it out, more than 40 years later, in large part because the issues ARE so political rather than explicitly legal.
In short (here comes the sound bite again), ALITO IS HESITANT ABOUT JUDGES GETTING TOO MUCH POLITICAL POWER, and his concerns about the reasoning in the two cases at hand have been amply borne out by experience.
Posted in Uncategorized —
Posted at 3:37pm on Jan. 9, 2006 Kohl open-minded?
By Quin
I just listened to Sen. Herb Kohl's opening statement. It was the statement of a liberal, indisputably and proudly. But it was not the statement of a guy chomping at the bit to destroy somebody. It was the statement, instead, of a senator who seems dubious about a nominee, but not absolutely determined to vote against him. In short, it sounded like the statement of a senator whose mind is still at least partly open rather than already made up against Alito. All of which would be in character for Kohl, who has always seemed more fair-minded than most. It gives me hope that there is still a chance for a committee vote of 11-7 rather than 10-8 -- and that could make all the difference in the world. (I think Alito will eventually be confirmed, regardless, but getting a Demo vote on Judiciary would signal that there won't be a serious attempt at a filibuster, and also that the smears might stop just short of being so bad as to do serious harm to the body politic.)
Posted in Uncategorized —
Posted at 3:11pm on Jan. 9, 2006 Details About Hearing Coverage
By AndrewHyman
You can watch the Alito hearing on your computer: click here to watch in RealPlayer, via C-Span. The committee's live video feed is here (RealPlayer). And here's NPRââ‚â„¢s audio coverage in RealPlayer format. Also, the Washington Post has live blogging here, the New York Times has live-blogging here, and SCOTUSblog has live-blogging.
Hat Tip: How Appealing.
Posted in Judiciary Committee —
Posted at 2:58pm on Jan. 9, 2006 Voting rights, etc. !!!!!!!!
By Quin
For many many weeks I've been warning everyone who would listen (on conference calls; I haven't been posting very often) that the Dems' key assault would be on the "one-man, one-vote" issue, with related issues used to bolster an impression of a guy who is not for equal rights. Blanton's post a little while ago, about the things that drunken Demo staffers were saying the other night, is right in line with those concerns of mine. I think the warnings are just a tiny bit overblown, because drunken staffers tend to talk bigger than their senators can deliver. But I do think the gist of what Blanton is reporting is EXACTLY what to expect. And the GOP senators and media folks better be ready for it. So far, the answers to the one-man, one vote issue have been highly academic, but far, far from being effective sound bites. WE MUST HAVE AN effective sound-bite. So far we don't. The fact is that Alito's views on the reapportionment cases are thoroughly respectable. But if we can't explain in a sound bite why they are respectable, then we open the door to letting the Dems start ot add on their other "equality" issues to pound home the message Blanton warns about.
I am still working on a suggested sound bite, but I hope to float one here soon. Please, though, can't somebody else start thinking along these lines and get the word out?!? Thanks.
Posted in Uncategorized —
Posted at 2:07pm on Jan. 9, 2006 A Democrat Speaks
By Carol Platt Liebau
It's never safe to presume that Howard Dean is operating from the same playbook as other prominent Democrats in the country. Nonetheless, here is a piece he has written, which may provide an outline of what we're going to hear from the Democrats.
That being said, it's always helpful to point out, as Michael McGough does, that there is a slightly musty odor to many of these charges. As Kate O'Beirne noted yesterday on yesterday's Meet the Press, the Democrats were going over the hyperbolic top about David Souter (a point worth pointing out, and frequently). For more of the same, check out Kate Michelman's screed today in The Boston Globe. Here's hoping the Democrats adopt her tone of reasoned restraint.
In the end, it will all come down to Judge Alito's demeanor. If he seems like a nice guy, the Democrats are going to have a hard time defeating him -- and will come across like zealots. If, however, they are able to provoke the judge into providing sound bites that can be used against him, all bets are off. Obviously, part of what will allow Judge Alito to accept the gratuitous abuse of Senate Judiciary Democrats without reacting is the knowledge that his reputation and good name are being defended honestly by those who favor his confirmation.
Posted in Analysis and Predictions —
Posted at 1:39pm on Jan. 9, 2006 In other words, stare decisis is fo' suckas!
By feddie
I've had strong disagreements in the past with Professor Matthew J. Franck, but his most recent piece over at NRO is excellent. Here's a taste:
But why should it be ââ‚Å“not enoughââ‚? that a justice believes ââ‚Å“a prior ruling was wrongly decided,ââ‚? for him to vote to overrule it? We are, after all, talking here about prior rulings that, according to a present-day justiceââ‚â„¢s understanding, plainly got the meaning of the Constitution wrong. To put it in the starkest possible terms, we are asking, what should be done about past majorities of the Court who violated the Constitution? For surely every action undertaken on the basis of a mistaken view of the Constitutionââ‚â„¢s meaning is a violation of the Constitution, is it not? The sensibilities of jurists are not so tender when it comes to mistakes and violations committed by other institutions and political actors, or even those committed by lower courts. Why should the justices of the highest court be so chary of correcting their own mistakes, or those of their predecessors?
. . . .
Caution about whether to upend peopleââ‚â„¢s reasonable expectations of a stable set of legal rules is certainly important. But caution about whether such upending is the right thing is not the same as having a reason not to do the right thing when it has been determined to be the right thing. Stability, after all, cannot be a paramount consideration, capable of trumping the considered judgment that a precedent was wrongly decided.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 1:06pm on Jan. 9, 2006 Bainbridge on the Times
By Zummo
Before you get set to watch the hearings, do enjoy Professor Bainbridge's excellent takedown of the New York Times' Alito editorial. Well played, Professor.
Posted in Analysis and Predictions —
Posted at 11:33am on Jan. 9, 2006 What to Watch for at the Hearing
By Marshall Manson
Senator John Cornyn has an excellent at National Review online this morning predicting and preempting the Lefts's attacks on Judge Alito. It's a great read and a great resource. Here's the central theme:
The talking points emerging from special-interest quarters have already proven disappointing to those seeking to paint Judge Alito as an extremist â₆facts have refuted mere allegations. The week ahead will reveal how many senators will stand up against the rhetoric and instead pursue the truth. Meanwhile, Americans can be confident that Judge Alito's tenure on the Supreme Court will be one of which they can be proud.
Posted in Alito —
Posted at 11:23am on Jan. 9, 2006 Great Resource
By Marshall Manson
As the Alito hearing gets under way today, the Dems are going to begin lofting a plethora of attacks at the judge. Committee for Justice has created an indispensable list of links responding -- in advance -- to every conceivable gambit. Bookmark it for easy reference when the attacks begins.
Posted in Alito —
Posted at 11:08am on Jan. 9, 2006 Breakfast with the judge
By Irishlaw
The White House has posted the text of the President's comments this morning after having breakfast with Judge Alito:
Sam's got the intellect necessary to bring a lot of class to that Court. He's got a judicial temperament necessary to make sure that the Court is a body that interprets the law and doesn't try to write the law.
I didn't see the remarks, so I'm not sure what tone this was delivered in, but Bush also said, "And my hope, of course, is that the Senate bring dignity to the process and give this man a fair hearing and an up or down vote on the Senate floor." How likely is this? We'll see soon, though as Blanton (most recently) has reported, it doesn't look as though the Dems are planning for "dignity" to be part of the process.
Posted in SCOTUS —
Posted at 10:21pm on Jan. 8, 2006 Alito Hearing Set to Begin Monday
By AndrewHyman
The Senate Judiciary Committee is set to begin confirmation hearings on the nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court. C-SPAN LIVE coverage starts on Monday at 11:30am ET, although the actual hearing isn't set to begin until noon. There will be a re-air Monday night at 8pm ET on C-SPAN.
Mark Kilmer of Redstate summarizes the Sunday TV talk shows here ("The important line this week --- spouted by Schumer on Meet the Press, DiFi on Fox News Sunday, Specter on Face the Nation and Leahy on Face the Nation --- was that Roe v. Wade is long established law, embedded in our culture, Super-Duper precedent, and society would collapse were it touched"). Below the fold are links to a whole slew of articles, editorials, and the like that appeared on the internet on Sunday from Big Media, including pro-confirmation pieces, anti-confirmation pieces, and neutral pieces. Hat Tip: Howard Bashman.
"Critics give Alito 'steep hill to climb'": Joan Biskupic will have this article Monday in USA Today.
Monday in The New York Times, David D. Kirkpatrick, who will be blogging the confirmation hearing for that newspaper, will have an article headlined "Two Legal Careers That Diverged May Intertwine Again."
And Monday's edition of The Washington Post will contain an editorial entitled "Questioning Judge Alito."
"Alito's Journey: Groomed for the Bench; Proving His Mettle in the Reagan Justice Dept." Part two of The Washington Post's front page two-part series on U.S. Supreme Court nominee Samuel A. Alito, Jr. will appear in Monday's newspaper and can now be accessed online at this link. The very interesting part one of the series, which appears in today's newspaper, can be accessed here. The authors of the articles, who interviewed (among others) Judge Alito's wife, sister, and mother, will participate in an online chat at washingtonpost.com Monday at 11 a.m.
"Dems to attack Alito's credibility at hearings; Republicans say they will tout high court nominee's credentials, including unanimous top rating from ABA": Monday's edition of Newsday will contain this article.
"Democrats Ready to Go After Alito; High Court Nominee's Memos Opposing Abortion Likely to Be Focal Points at Hearings": This article will appear Monday in The Washington Post.
The Wall Street Journal's "Washington Wire" on Monday will carry the headline "Prepping Alito for the Hot Seat" (free access).
USA Today on Monday will contain an editorial entitled "Rights at risk."
CBS News legal analyst Andrew Cohen has an essay entitled "The Alito Shuffle."
At Salon.com, Walter Shapiro has an essay entitled "Alito's bad luck: The latest Supreme Court nominee has to face a Senate newly emboldened to challenge the imperial Bush presidency; And his paper trail gives them plenty of ammunition to do it."
And in Monday's edition of The Guardian (UK), Marcel Berlins has an essay entitled "Time for American justice to be judged."
"Issues and (Possible) Answers: A Primer on the Alito Hearings." Adam Liptak will have this article Monday in The New York Times.
"The Cool Fervor of Judge Alito: Is he a conservative activist or a legal scholar not bound by ideology? Now's his chance to argue his case." The January 16, 2006 issue of Time magazine will contain this article.
Monday's edition of The Times of London reports that "Court battle will cast a spotlight on Bush legacy."
In Monday's edition of Financial Times, Patti Waldmeir reports that "Alito 'good guy, bad guy' talk fails to rouse public."
Bloomberg News reports that "Democrats Won't Rule Out Blocking Alito's Confirmation to Court."
Voice of America News reports that "Senate Hearings on Supreme Court Nominee Begin Monday."
And Monday in The Milwaukee Journal Sentinel, David Newby will have an op-ed entitled "Judge at odds with interests of state workers."
On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Preview: The Alito Hearings" and "Bush and the Presidential Signing Statement."
"Judging Alito as he would judge": This editorial will appear Monday in The Christian Science Monitor.
"Key question for Alito: presidential power; Senate confirmation hearings, starting Monday, are expected to delve into presidential powers." Monday's edition of The Christian Science Monitor will contain this article.
The Australian reports that "Court nominee to face Congress."
Jesse J. Holland of The Associated Press reports that "Talk Is Tough on Eve of Alito Hearings." The AP also reports that "Conservatives Split Ahead of Alito Hearing."
Thomas Ferraro of Reuters reports that "Alito seen surviving tough US confirmation hearing."
The Green Bay Press-Gazette reports that "Feingold, Kohl ready questions for Alito hearing."
In commentary, The Chicago Tribune contains an op-ed by Law Professor Jonathan Turley entitled "Tackling a judge's ideology: Alito appears to be the Bob Newhart of judging, delivering deadpan decisions that make him difficult to lionize or demonize."
In The Denver Post, Daniel Kemmis has an op-ed entitled "The West and the high court: Region's senators should play a key role in confirmation process."
Available online from The Associated Press: "Alito's Writings, Rulings Provide Insight"; "Schedule for Alito's Hearings"; and "The Current Justices, Their Religions."
"Tackling a judge's ideology: The Senate should ignore the unwritten laws of Washington and strongly consider the ideology of a U.S. Supreme Court nominee." Columnist Steve Chapman has this op-ed today in The Chicago Tribune.
Today in The Los Angeles Times, Law Professor Cass R. Sunstein has an op-ed entitled "Our legal guardians." And Edward Lazarus has an op-ed entitled "Alito's moment: Has Bush doomed his own nominee?"
In The Boston Globe, Robert Kuttner has an op-ed entitled "Alito may be the worst choice."
In The Houston Chronicle, columnist Cragg Hines has an op-ed entitled "Will the real Samuel Alito stand up? Not very likely." And Law Professor David R. Dow has an op-ed entitled "The decisive question: Is Alito a prophet? Prophetic skills are a must in person who fills court vacancy."
In Newsday, Lawrence Baum has an op-ed entitled "What will hearings tell about Alito? Little."
David Sanders of the Arkansas News Bureau has an essay entitled "A letter to two senators."
And in The Oregonian, columnist David Reinhard has an op-ed entitled "The Alito Hearings."
"Samuel Alito Jr.'s merits": This editorial appears today in The Chicago Tribune.
The San Francisco Chronicle today contains an editorial entitled "10 questions for Samuel Alito."
The Baltimore Sun contains an editorial entitled "Questions for Judge Alito."
The Seattle Post-Intelligencer contains an editorial entitled "Alito Nomination: Time isn't right."
The Philadelphia Inquirer contains an editorial entitled "The Alito Hearings: A need for scrutiny."
The Houston Chronicle contains an editorial entitled "Alito's record: Bush's court nominee, if confirmed, can be relied on to rule much as the judge's admirers expect him to."
The Detroit Free Press contains an editorial entitled "Questions for Justice: Toughest challenging of Alito should be on executive power, protecting liberties."
The Oregonian contains an editorial entitled "A king-size effort for judge to seem like a moderate; Judge Samuel Alito needs to talk his way out of a filibuster."
The Republican of Springfield, Massachusetts contains an editorial entitled "Questions for the judge who would be a justice."
The South Florida Sun-Sentinel contains an editorial entitled "Supreme Court: Legal group calls Supreme Court nominee Samuel Alito 'well qualified.'"
And The Morning Sentinel of Maine contains an editorial entitled "Time for Alito to explain who he is and what he thinks."
"In Alito Battle, Issues of Presidential Power Thrust to Forefront": David G. Savage has this article today in The Los Angeles Times.
In the January 16, 2006 issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have a periscope item headlined "Supreme Court: Tune In; A TV Guide To the Alito Hearings."
The Baltimore Sun reports today that "Alito likely to face tough confirmation hearings."
In The Houston Chronicle, Patty Reinert reports that "Alito's future hinges on past; Senate panel is expected to look at history on civil rights, abortion, executive power."
The Newark (N.J.) Star-Ledger contains articles headlined "Lady and gentlemen, start your questioning" and "Alito-O'Connor comparisons defy conventional labels."
In The San Francisco Chronicle, Bob Egelko reports that "Alito must avoid being 'Borked'; The lesson of Reagan's nominee is: Say just as little as you possibly can." The newspaper also contains articles headlined "An ideological rumble; The nomination: Expect confirmation hearings to be partisan slugfests, Senate-style" and "The abortion issue: Public opinion is polarized and bitter long after Roe vs. Wade ruling."
Newsday contains an article headlined "Alito's 'defining moment' of truth; Supreme Court nominee's opening remarks during Senate hearings this week will set the tone."
The Arizona Republic reports that "Alito battle brewing; Tough hearing awaits high court nominee."
The Cleveland Plain Dealer contains an article headlined "Abortion: Where does Ohio stand? Numbers fall in state, but it's still in central role as debate rekindles with Alito hearings."
The Tampa Tribune reports that "Abortion Debated But Rarely Ruled Upon."
The Denver Post reports that "Alito backers, foes seek sway on Salazar's vote; Hearings to begin."
The Birmingham News reports that "Alabama redistricting likely to arise; Alito's stance debated on 'one man, one vote.'"
The Burlington Free Press reports that "Leahy to question Alito on domestic spying."
The Philadelphia Inquirer reports that "Plans for national Christian rally here are criticized."
MarketWatch reports that "Alito begins confirmation battle; Supreme Court nominee's Senate hearings start Monday."
And The Daily Princetonian provides news updates headlined "Stage set for showdown over Alito; If confirmed, Alito would be Princeton's ninth justice and first since 1955" and "CAP critic dropped from Alito witness list; Dujack '76 regrets controversial op-ed, will not testify before Senate committee
Posted in News —
Posted at 4:07pm on Jan. 8, 2006 A Senate Bloodbath<br>Dems Plan Massive Character Assassination
By Blanton
By now you've seen the Drudge report about the Democrats trying to tie Alito to a racially insensitive article by a Princeton grad when Alito was a member of a group protesting Princeton's denial of ROTC access. The Drudge story is accurate, but he doesn't quite paint the picture of what the Dems are up to.
I know part of what they are up to. They've told me. Or, at least, they were telling each other last night over scotch and beer at a particularly favorite watering hole in DC that they and I hang out at a lot. The Dems intend to savagely kill off the Alito nomination. They intend for the hearings to be a bloodbath of Bork proportions. The Democrats will light a fire under the great American racial divide and send Alito into the flames and, with him, kick off the 2006 Democratic campaign to recapture Congress from white sheeted Republicans intent on disenfranchising everyone, save the evangelicals.
Start from this premise, that may be hard for some of us to accept -- the Democrats have recognized that (a) the American people expect them to beat up Alito on abortion and (b) the American people expect the Democrats to obstruct Alito on abortion. Hell, we all expect that.
Now, swallow hard and accept a few more. First, the Democrats really are not stupid. Second, they really want a win a Bush defeat. Third, they recognize that playing to stereotype will not give them a win a Bush defeat. Fourth, despite it being a foregone conclusion that they will obstruct Alito, they cannot do it on abortion because that issue is no longer persuading people. So, what is a Democrat to do?
According to my loose tongued Democrat friends, the Democrats are going after Alito on voting rights and civil liberties and, in the process, intend to take down a few Republicans (they actually mentioned a few House Republicans that they hope to hurt, which I thought was actually the most interesting part of the conversation. Senate Democrats wanting to do in House Republicans). In 2006, the Voting Rights Act will come to a head. A number of liberal law professors have been working behind the scenes to compile a list of prior Alito writings that suggest he would reject holdings in a wide variety of Supreme Court cases relating to voting rights. Further, they will suggest that Alito would find Section 5 of the Voting Rights Act unconstitutional, attempting to hang him on his own words.
In doing so, they will highlight statements of a variety of elected Republicans calling into question whether the Voting Rights Act is needed. Working in conjunction with PFAW, NAACP, Americans United, the New York Times, friendly reporters with the AP and Knight Ridder, etc., the Democrats will begin an assault on Alito as no friend of the little guy, an enemy of the right to vote, and paint Alito as a pawn of racist Republicans intent on setting back the civil rights of black voters and women. They'll leave abortion to Arlen Specter.
By the time Democrats are through with Alito, they hope to have made the case that Alito will be a pawn of Bush in Bush's war against the American people. From eavesdropping to voting, Alito will be painted as a foe of civil liberties. The loss of liberty will be their theme and Alito will be their victim in the process. The drunk staffers assured each other that it polled well.
Republicans have grown comfortable with the idea that Alito will be confirmed. In fact, Senate Republicans have started to grow lazy. The Dems wanted and got a delay in the hearings, not to dig up more evidence, but to give friendly reporters time to get stories out there in the news that the Dems can then use in their hearings.
If Republicans are not careful, Alito will be destroyed at the hands of the Democrats. Oh, and if he makes it through the hearings, then the Democrats will have gotten him close enough to the anniversary of Roe v. Wade to let Feinstein, Boxer, and Murray unleash on him.
This could get very ugly and it will if Republicans aren't organized.
Posted in SCOTUS —
Posted at 3:45pm on Jan. 8, 2006 A thought on Durjack
By Marshall Manson
There's been much discussion of liberal animal rights activist Stephan Durjack. First he was on the Dems witness list. But then Drudge revealed a 2003 op/ed in which Durjack wrote:
ââ‚Å“Like the victims of the Holocaust, animals are rounded up, trucked hundreds of miles to the kill floor and slaughtered.ââ‚?
After that little nugget became public, Durjack was dropped from the Dems' witness list.
Today, John in Carolina suggests that Republicans add Durjack to their own list.
"Letââ‚â„¢s give some attention to Durjack, so the American people will notice and denounce him and the Democrats who tried to pass him off as a credible Senate witness."
Not a bad idea...
Posted in Alito —
Posted at 3:32pm on Jan. 8, 2006 The Myth of the "Open Mind"
By Carol Platt Liebau
Nothing is more annoying than the Senate Judiciary Committee's version of the "big lie": That is, that Democrats on the Judiciary Committee intend to keep an "open mind" about the Alito nomination.
Today, on Fox News Sunday, after pledging her fealty to the "open mind" concept, Dianne Feinstein went on to define her view of the judicial "mainstream":
Brit Hume: Would you consider someone who thought Roe v. Wade was improperly decided by the Court, does that place a person outside the mainstream in your view?
Dianne Feinstein: It depends. In my view, it does.
Later, there was this exchange:
Hume: Is that filibuster material -- if you became convinced --
Feinstein: If I believed he was going to go in there and overthrow Roe, the answer is most likely yes.
For once, Lindsay Graham got it right:
If a person adhere to a pro-choice or pro-life philosophy, that shouldn't be disqualifying, because the country's split. The question for a judge is, "Will you follow the law? Will you base your decision based on the briefs, the arguments and the facts -- and not a personal agenda?" This idea that you got to show allegiance to Roe v. Wade to get on the Court and if you won't show an allegiance to it -- if you've got to come to the Committee and say, "Under no circumstnaces will I entertain an argument to look at Roe v. Wade anew," I think that's very unfair. That did not happen on Clinton's watch.
Yes, of course, Dianne Feinstein has no idea how she's going to vote. She's got an "open mind" -- just like Teddy Kennedy.
Posted in Analysis and Predictions —
Posted at 1:38pm on Jan. 7, 2006 Desperate Hours for the Dems
By Carol Platt Liebau
From this long and fairly informative piece from Fox News, it's clear that the Democrats are grasping for something -- anything! -- with which to tar Judge Alito.
Their Concerned Alumni of Princeton gambit appears to have fizzled; the name of their chief attack dog on that front has been removed from the witness list, it having become known that he once compared animals subjected to violence to Holocaust victims. And, as the piece notes, White House aides are hinting that Alito, who was a member of ROTC during his college years, may have joined the group in an era when ROTC's right to remain on campus was being threatened. This was, in fact, a realistic fear (you'll recall that Harvard, for example, actually kicked ROTC out).
For the moment, it sounds like the same old tired left wing suspects are making the same old tired left-wing charges. Any conservative is, by definition in their book, racist and sexist.
Well, I'm ready for the hearings to start come Monday morning. And Alito has Democrats and colleagues ready to testify to his intellect, fair-mindedness and integrity. Is there anyone outside the loony left who's ready to testify to the opposite?
Posted in Analysis and Predictions —
Posted at 2:51am on Jan. 7, 2006 Kennedy's Credibility Problem
By AndrewHyman
Senator Edward Kennedy has an op/ed in the Washington Post on Saturday, in which he questions the credibility of Judge Alito on various subjects. Kennedy's most serious charge is that Alito broke a promise to the Senate by failing to recuse himself:
In 1990, during the confirmation process on his nomination to the 3rd Circuitâ₦ he promised us that he would recuse himself from any case involving "the Vanguard companies." .... Nevertheless, in 2002 he failed to recuse himself â₦.
This charge really calls Senator Kennedy's own credibility into question. Alito's 1990 promise was in response to an inquiry about "potential conflict-of-interest during your initial service in the position to which you have been nominated" (emphasis added). Who thinks that "initial service" includes events that occur many years after service has begun? Judge Alito himself recently explained to the Senate that he regarded his initial service as having ended long before 2002. How can Senator Kennedy disagree with that?
Alito did not break any promise to the Senate, nor did he break any other ethical rule. He didn't even have any real financial interest in the Vanguard case, as Ed Whelan has described at National Review.
Posted in Analysis and Predictions —
Posted at 10:03pm on Jan. 6, 2006 The Best They Can Do?
By Carol Platt Liebau
Here is supposedly the big Democratic surprise -- that Alito belonged to the Concerned Alumni of Princeton.
The issue has been discussed on this site here and here.
As I've said before, I remember no sexist or racist overtones to CAP, circa 1985. That being said, even if, arguendo, there were some members of that group who held those repugnant views, that doesn't mean that the organization was based on them -- or that Alito shared them.
One final question -- do the Democrats really want to go down this road? Think of all the wacky, way out of the mainstream ideas purveyed by some members of the ACLU. They didn't stop Ruth Bader Ginsburg from being confirmed . . .
If the Democrats want to compare the fringe in left-wing groups vs. the fringe in right-wing groups, well, bring it on. No one will end up looking very good. But trust me -- their wackos are no more attractive than ours are.
Update: As one of my valued readers wrote in an email, "Good thing Alito hadn't joined the KKK: then he would be associated with [Supreme Court Justice] Hugo Black and [sitting U.S. Senator] Robert Byrd [(D-WV)].
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 9:22pm on Jan. 6, 2006 Leahy Rewrites the History of Princeton University
By AndrewHyman
Senator Leahy is alleging that Samuel Alito belonged to an organization formed in 1972 to oppose "Princeton's decision to admit â₦ minorities.ââ‚? Contrary to what Senator Leahy says, the fact is that Princeton already decided to admit minorities long before 1972. African Americans have been part of the Princeton undergraduate student body continuously since 1945. Asians, Hispanics, and Native Americans were also attending Princeton many decades before 1972. Is Leahy seriously suggesting that Judge Alito opposed Princeton's decision to admit John Chavis (a free black man) into Princeton's Class of 1795?
As for admitting both men and women, Princeton is much more welcoming than Senator Hillary Clintonââ‚â„¢s alma mater; Wellesley College still declines admission to men.
Posted in Analysis and Predictions —
Posted at 7:50pm on Jan. 6, 2006 A Sinister Plan?
By Carol Platt Liebau
At this moment, with no story, the Drudge Report features the following headlines:
THE DRUDGE REPORT has learned from exclusive sources that Senate Democrats have put into place a plan that includes one last push to take down the nomination of Judge Samuel A. Alito as he heads into his confirmation hearing next week.... MORE...
Then, underneath a picture of Judge Alito, is the following:
DEVELOPING: DEMOCRATS PLAN TO DESTROY ALITO
Posted in Analysis and Predictions —
Posted at 3:50pm on Jan. 6, 2006 Judge Alito on Executive Power
By AndrewHyman
Charlie Savage reports in the Boston Globe today that, ââ‚Å“Senator Charles E. Schumer, Democrat of New York, said he plans to quiz Alito about â₦ a legal theory that calls for stronger presidential control of government operations and a reduced role for Congress.ââ‚?
Alito and many others have said that they believe the principle of separation of powers was violated by the enactment of the Independent Counsel Law in the wake of Watergate, because the law gave executive powers to the judiciary. The Independent Counsel Law allowed judges to appoint prosecutors, and allowed the judges to define the prosecutorsââ‚â„¢ jurisdiction. The constitutionality of the Independent Counsel Law was eventually upheld in Morrison v. Olson, 487 U.S. 654 (1988), with Justice Scalia dissenting. Nevertheless, Congress ultimately let the Independent Counsel Law expire in 1999, after the investigation by Independent Counsel Ken Starr led many Democrats to join Republicans in criticizing the statute. My guess is that Senator Schumer wonââ‚â„¢t be able to get much traction on this issue, especially in view of what people like columnist Anthony Lewis of the New York Times wrote in 1998:
The framers of our Constitution well understood the danger that Kenneth Starr illustrates: Give anyone absolute power and he may abuse it, no matter how good his intentions. That is why they created our elaborate system of checks on power. The independent-counsel statute has given us a creature outside the constitutional system. That is what Scalia perceived in 1988. Now Starr, perhaps outraged by the idea of a president as sexual predator, is driven by a sense of mission --- and a sense of his own rectitude --- to ignore the dangers of prosecutorial abuse. Conservatives as well as liberals, critics as well as supporters of Bill Clinton should be concerned at what is happening. Through history, liberty has depended on observance of the decencies of the law. The end does not justify the means.
Alito simply agreed with what Lewis astutely observed about our constitutional system.
UPDATE: Here's Judge Alito testifying about the "unitary executive':
As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power. And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger. It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers. So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope.
Transcript of hearing Tuesday, January 10, 2006.
Posted in Analysis and Predictions —
Posted at 2:31am on Jan. 6, 2006 Alito in Wonderland
By AndrewHyman
There's a lot of noise out there, but not much of substance to report about the Alito nomination right now. I know some of you are Lewis Carroll fans, so --- with apologies to Mr. Carroll and to Judge Alito --- here's a story about the upcoming hearing that's scheduled to begin on January 9.
ââ‚Å“Call the first witness," said Chairman Specter; and the White Rabbit blew three blasts on the trumpet, and called out, ââ‚Å“First witness!" The first witness was the Nominee, Judge Alito. He came in with a teacup in one hand, and a piece of bread-and-butter in the other. ââ‚Å“I beg pardon, Mr. Chairman," he began, ââ‚Å“for bringing these in: but I hadnââ‚â„¢t quite finished my tea when I was sent for."
Here Senator Leahy put on his spectacles, and began staring hard at the Nominee, who turned pale and fidgeted. ââ‚Å“Give your testimony," said Chairman Specter; ââ‚Å“and donââ‚â„¢t be nervous, or Iââ‚â„¢ll have you executed on the spot." This did not seem to encourage the witness at all: he kept shifting, looking uneasily back at Senator Leahy, and in his anxiety he bit a large piece out of his teacup instead of the bread-and-butter.
ââ‚Å“What did the Concerned Alumni of Princeton say thirty years ago today?" barked Leahy's Democratic colleagues, one after the other. ââ‚Å“That I canââ‚â„¢t remember," said the Nominee. ââ‚Å“You must remember," remarked the Chairman, ââ‚Å“or Iââ‚â„¢ll have you executed."
Here one of the leftist guinea-pigs cheered, and was immediately suppressed by the officers of the Senate. (They had a large canvas bag, which tied up at the mouth with strings: into this they slipped the leftist guinea-pig, head first, and then sat upon it.) ââ‚Å“Iââ‚â„¢m glad I've seen that done," thought Judge Alito, discreetly.
ââ‚Å“If thatââ‚â„¢s all you know, you may stand down," continued the Chairman. ââ‚Å“I canââ‚â„¢t go any lower," said the Nominee: ââ‚Å“Iââ‚â„¢m on the floor, as it is." ââ‚Å“Then you may sit elsewhere," the Chairman replied. Here the other leftist guinea-pig cheered, and was suppressed. ââ‚Å“That finishes the guinea-pigs!" thought Alito, "and now everyone shall get along better."
ââ‚Å“Iââ‚â„¢d rather finish my tea," answered Alito to the Chairman, with an anxious look at Senator Leahy, who was reading the list of witnesses. At this moment Senator Schumer, who had been for some time busily writing in his note-book, called out ââ‚Å“Silence!" and read out from his book, ââ‚Å“Rule twenty-two. All persons more than a mile high to leave the hearing room." Everybody looked at Alito. "Iââ‚â„¢m not a mile high," said Alito. ââ‚Å“You are," said Schumer. ââ‚Å“Nearly two miles high," added Leahy.
ââ‚Å“Well, I shanââ‚â„¢t go, at any rate," said Alito: "besides, thatââ‚â„¢s not a regular rule --- you invented it just now." ââ‚Å“Itââ‚â„¢s the oldest rule in the Senate rule book," said Schumer. ââ‚Å“Then it ought to be Rule Number One," said Alito. Schumer turned pale, and shut his note-book hastily.
ââ‚Å“Hold your tongue!" said Senator Kennedy, turning purple. ââ‚Å“I wonââ‚â„¢t!" said Alito. ââ‚Å“Off with his head!" Kennedy shouted at the top of his voice. Nobody moved.
ââ‚Å“You may go," snarled the Chairman politely, and the Nominee hurriedly left the hearing room, without even waiting to speak to reporters.
ââ‚Å“--and just take his head off outside," Senator Kennedy added to one of the officers of the Senate; but the Nominee was out of sight before the officer could get to the door. ââ‚Å“Call the next witness!" said the Chairman, eager to hasten Alito's confirmation.
Posted in Images —
Posted at 6:36pm on Jan. 5, 2006 What the ^$%^$#!!!!!
By Quin
From the Associated Press:
WASHINGTON (AP) â₆Democrats will force an one-week delay in the Judiciary Committee's vote on Supreme Court nominee Samuel Alito, Senate aides say.
DO THESE JERKS HAVE NO SHAME?!?!? They already, by the grace of Specter, got about five weeks more than they should have to drum up opposition to Alito, and basically struck out -- so now they want another week!?!? To Senate procedural experts out there: Is there any way for the Senate Leadership to stop them from this delay tactic? Can't the GOP leadership just tell these jerks to stuff it???
Posted in Uncategorized —
Posted at 2:08pm on Jan. 4, 2006 Alito Rated Well-Qualified
By Marshall Manson
Supreme Court nominee Samuel Alito received a unanimous well-qualified rating from the American Bar Association on Wednesday, giving his nomination momentum as the Senate prepares for confirmation hearings next week.
It's nice that the ABA embraced the obvious. But in the past, Democrats have called ABA ratings the "gold standard." And the ABA's announcement makes it that much more difficult for the Democrats to justify mistreating the nominee or mounting a filibuster. That's not to say that the Dems won't do it anyway. But if anyone in the Democrat brain trust thought obstructing Judge Alito's confirmation was a good idea, the ABA has provided yet more evidence that such a plan is pure folly.
UPDATE: Michelle Malkin has a .pdf of the ABA's letter announcing its rating.
Posted in Alito —
Posted at 3:07am on Jan. 4, 2006 A Few Tuesday Night Notes
By AndrewHyman
Helen Thomas and other liberals are duking it out today with the likes of Rush Limbaugh, in an effort to persuade the public about the Alito nomination; Howard Bashman has the links to prove it. Also of interest is this extraordinary op/ed by Alabama Supreme Court Justice Tom Parker, who urges a bit less obedience to the U.S. Supreme Court.
Posted in Analysis and Predictions —
Posted at 9:42pm on Jan. 3, 2006 The "Plot" Thickens?
By Carol Platt Liebau
Professor Sanford Levinson (who was a visiting prof and taught me "Legal Ethics" back in, I think, the fall of 1991) appears to suggest that behind the Alito nomination is a secret and nefarious agenda -- to find a candidate who would uphold the "supremacy" of the Executive branch. This theory is, apparently, based on some Alito statements about the importance of executive (as well as legislative) intent in interpreting legislation.
His accusation is at once too much and not enough. Of course the President is likely to favor judicial candidates who will understand the importance of upholding (within the Constitution, of course) the president's powers in fighting the war on terror . . . in fact, it' s been Hugh Hewitt's contention all along that the President's resolution to fight the war on terror vigorously prompted his choice of Harriett Miers -- given her intimate knowledge of the stakes in the war on terror and the president powers needed to fight it effectively. Where, then, is the shock in learning that his other nominee for the seat might likewise be sympathetic to executive claims -- again, within the limits of the Constitution?
And even if there were a pro-executive powers agenda underlying the President's Supreme Court picks, what's so disqualifying about a potential justice holding a robust view of executive power? So far, nothing I've seen even remotely suggests that Judge Alito's views are -- as the liberals love to put it -- "out of the mainstream."
Levinson winds up by hoping that Senator Specter will come out against the nomination, writing wistfully, "If he exhibits some backbone, the nomination is in big trouble." But he isn't too optimistic about that possibility, and rightly so.
I was one of the people who opposed efforts to bar Specter from Judiciary's top slot (more on my reasons here). But as I wrote at the time, Let's let him know that we are watching him carefully. And if he doesn't do the job right, let's remove him.
Surely Specter knows that any attempt to scuttle the Alito nomination would end up with many, many Republicans surrounding the castle with pitchforks and fire, demanding his head. He may be arrogant, he may be unpleasant, and his flirtation with "Scottish law" was repugnant. But is he stupid -- that stupid? Surely not.
So Levinson may be wrong to think he's uncovered some secret conspiracy -- but he's right in his skepticism about Specter's willingness to derail the nomination.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 8:06pm on Jan. 3, 2006 Presidential Signing Statements
By AndrewHyman
Yesterday, WaPo reported about Samuel Alito's efforts as a Reagan aide to have Reagan issue signing statements when he signed bills into law, in order to supplement the legislative history. Of course, this has sent many Alito opponents into paroxysms of fear, but really the whole thing is innocuous. Don't be misled by statements like this one from Andrew Sullivan: ââ‚Å“As the imperial presidency nudges toward the edge of an imperial monarchy, this issue needs airing. Badly.ââ‚? Well, Bench Memos aired the issue here, and Iââ‚â„¢d like to briefly add a thing or two.
First of all, President Clinton used constitutional signing statements more than the Reagan administration, by 105 to 71. Donââ‚â„¢t take my word for it --- check out this 2003 study by Professor Chris Kelly of Miami University (see text accompanying note 88). Also, WaPoââ‚â„¢s report today said this about presidential signing statements: ââ‚Å“The courts have yet to give them much weight....ââ‚?
Sure, it would be legitimate to ask Judge Alito whether or not heââ‚â„¢d give presidential signing statements much weight, but has anyone suggested that he has done so already, as a judge? In a word: no.
UPDATE: Stuart Buck has a longer discussion of this issue, here, including analysis of Chris Kelly's piece.
Posted in Analysis and Predictions —
Posted at 3:39pm on Jan. 3, 2006 Defending Alito
By Carol Platt Liebau
Law Professor Charles Fried defends Judge Alito from some of the sillier attacks being made on his work back in the early '80's when Fried was solicitor general and Alito worked for him.
Fried concludes:
What these episodes illustrate is a man who is not a lawless zealot but a careful lawyer with the professionalism to give legally sound but unwelcome advice. They also show a person who can tell the difference between the law and his own political predilections.
In any case, why do Democrats -- who presumably believed that Ruth Bader Ginsburg could distinguish between an advocacy role (which she held, as general counsel for the ACLU) and the judicial role -- lack similar confidence in Samuel Alito?
Cross posted at CarolLiebau.blogspot.com.
Posted in Uncategorized —
Posted at 1:59pm on Jan. 3, 2006 Alito Ads, Alito on the Environment, and the Kavanaugh Nomination
By AndrewHyman
The pro-Alito camp has just purchased a half million dollars' worth of advertising, mainly in Maine, North Dakota, and Louisiana. You can view the ads here. Word has it that anti-Alito ads will be announced tommorrow. Meanwhile, Jonathan Adler has a good piece in National Review about Judge Alito's stance on environmental issues (no, Alito isn't plotting to strike down the Clean Air Act and the Clean Water Act).
Although the big news is the Alito nomination, controversy continues to swirl regarding the nomination of Brett Kavanuagh to the DC Circuit (see our previous Kavanaugh post here at confirmthem). At the end of December, the Senate took the unusual step of bouncing Kavanaugh's nomination back to the White House, and the prime suspect was the junior senator from New York. A few days ago, the blog Power Line mentioned that, "although Kavanaugh helped write [Ken] Starr's report to Congress, Bob Woodward has said that Kavanaugh advocated not including the long narrative filled with graphic detail." In any event, the Washington Prowler is now reporting that, "Republicans expect Kavanaugh to be re-nominated sometime this year by the White House." Details from the Washington Prowler are below the fold.
Sources on both sides of the Senate aisle say that, her denials aside, Sen. Hillary Rodham Clinton was at the very least the most influential voice in sending the D.C. Circuit Court nomination of White House adviser Brett Kavanaugh back to the desk of President Bush.
"She has had a hold on his nomination in the past," says a Senate Democratic leadership source. "At the time that Senator Frist asked that the nomination be extended, I don't know that it was her hold, but she surely had influence over the decision. Everyone on our side knows why she was less than thrilled with Kavanaugh as a nominee."
Another Democratic staffer says that his boss, a Democratic Senator from a Western state, told staff that it was a "Hillary Hold" or objection that killed the Kavanaugh nomination. A Republican Senate staffer also confirmed that that her boss had confirmed Senator Clinton's involvement in the Kavanaugh nomination's death.
The reason for Hillary's hostility, of course, is Kavanaugh's former role as a deputy to former Clinton Independent Counsel Kenneth Starr. Kavanaugh's nomination has been stalled for years; at times Democrats have complained that he was too young for the D.C. Circuit, or pointed to his political past. But in the end, it was Clinton's holds and passive aggressive stance on the nominee that kept Democrats opposed.
Republican sources say that they do not know who had the final hold on Kavanaugh, or who raised final objections to Kavanaugh, though one knowledgeable GOP source says that Republican Senators on the Judiciary Committee discussed the nomination's failure, with one member saying that he was certain that it was Clinton's hold based on conversations with Democratic colleagues.
"If it wasn't her hold, it was a hold placed on Brett at her or her staff's behest. You can split hairs over just whose name is on the slip, but when it comes down to it, the Democrats in the Senate believe this is a hold that Senator Clinton wants and supports wholeheartedly," says a Democratic staffer on the Judiciary Committee. "This was a team thing, like a lot of the holds have been."
In fact, Democrats have increasingly been turning to so-called "rolling holds" on nominations as a strategy to stall nominations and relieve pressure from being placed on a single member of the caucus from outside groups lobbying on the nominee's behalf.
Republicans expect Kavanaugh to be re-nominated sometime this year by the White House.
UPDATE: Here's a January 6, 2006 editorial about Kavanaugh from the Mobile Register.
Posted in Circuit Courts —
Posted at 7:59pm on Jan. 2, 2006 Meet Judge Edward Becker
By AndrewHyman
On Saturday (December 31), C-Span interviewed three of Judge Alitoââ‚â„¢s former clerks, and also interviewed Senior Judge Edward Becker of the Third Circuit. You can access the interviews here (RealPlayer required). Judge Becker is an old friend of Senator Specter, as well as a colleague of Judge Alito. Among other things, Judge Becker said in the interview that itââ‚â„¢s most unfortunate how the confirmation process has become vastly over-politicized, both for Supreme Court nominees and for lower court nominees. I suspect that this is the inevitable result of the courts striking down state and federal statutes that do not plainly conflict with the Constitution. As Jonah Goldberg put it last year, it seems that ââ‚Å“the meaning of the Constitution does not exist at all â₆outside the cranium of whichever justice provides the swing vote." Itââ‚â„¢s an unfortunate state of affairs.
Hat Tip: How Appealing for the C-Span info.
Posted in Alito —
Posted at 6:29pm on Jan. 2, 2006 Alito "Kook Watch"
By feddie
Here's a good round up of the links comprising what I affectionately refer to as the Alito "Kook Watch":
Americans United Against Anything Remotely to do with Christianity
It's always a good idea to keep an eye on what the enemy is doing, you know. :)
P.S. Go Irish!
Posted in Alito —
Posted at 4:57pm on Jan. 2, 2006 Putting My Money on Alito
By Carol Platt Liebau
Here in today's New York Times is a piece that reveals how Republicans and Democrats alike are trying to "spin" the Alito hearings before they even occur.
Adversaries like Chuck Schumer assert that Judge Alito has/will become "defensive" about some of his opinions, and hope to pique his temper; proponents say Schumer's assertions and hopes will be proven baseless. It will be interesting to see if Alito does decide to turn some senators' questions back on them; such a technique would be particularly threatening to those who, like Chuck Schumer, have a lot invested in convincing themselves (and everyone else) of the power of their intellects. John Roberts effectively humiliated Schumer; no doubt he's dying to retrieve his supposed reputation for erudition.
If Alito does decide to "fight back," he must do so with extreme caution. Senators are very protective of their prerogatives -- and some seem more senstive about being treated with "respect" (and seeing even unworthy colleagues being treated with deference) than about anything else. I'd be willing to bet that a lot of the self-proclaimed "moderates" like Snowe/Chafee/Collins fall in this category, and there's an argument to be made for avoiding behavior that might help them justify a decision to filibuster. Certainly, one must always stand up for oneself -- but it's also worth remembering that sitting on the Supreme Court is, in effect, having the last laugh for a lifetime.
All in all, I'm willing to put my money on Alito. He may not be as smooth as John Roberts, but he doesn't need to be. Sincerity, intellect and conviction will go a long way toward deflecting the attacks of grandiose, showboating senators like Chuck Schumer.
Cross posted at CarolLiebau.blogspot.com.
Posted in Uncategorized —
Posted at 2:53pm on Jan. 2, 2006 Hat Tip to Patterico
By AndrewHyman
One of the best blogs regarding the judicial confirmation situation has consistently been Patterico, who happens also to be a prosecutor in Los Angeles. His blog covers a lot of other stuff too, but it's invariably interesting and well-written. Patterico blogs under a pseudonym --- rather than as a fictional character like other notorious prosecutors have done. :-) Today, he has an interesting post up summarizing his 2005 blog entries criticizing the Los Angeles Times, including coverage by the Times of the judicial confirmation situation. Here's how Patterico criticized the Times on another topic --- Terri Schiavo:
As was common in the liberal media, the paper portrayed the issue as one of family vs. government â₆a much more convenient story line than the truth: that the battle was between competing family members with very different ideas about what should happen to Ms. Schiavo.
Patterico really hits the nail on the head here --- this happens not just with liberal media but also with liberal judges and politicians (a redundancy, I know). They portray the abortion issue, for example, as a woman vs. government thing, when actually there is a teeny tiny issue of whether it's okay for one human being to rip apart another for any trivial reason (not to mention the right of a husband to know what's happened and/or to protect his family). Anyway, check out Patterico's blog if you haven't already.
Posted in Analysis and Predictions —
Posted at 1:38am on Jan. 2, 2006 First Post of 2006
By AndrewHyman
In 1787, the framers of the Constitution gathered in Philadelphia, and on June 21 of that year they debated a proposal to give veto power to the Supreme Court, instead of just giving veto power to the President alone. Of course, the proposal was ultimately defeated, but the conversation was interesting, and very relevant to what's happening nowadays. Here's a brief excerpt.
Luther MARTIN of Maryland: A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the [veto] and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating agst. popular measures of the Legislatureâ₦.
George MASON of Virginia: It had been said [by Luther Martin] that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences.
ME of Confirmthem: Donââ‚â„¢t worry George, just wait a century or two. Then the Court will void laws all the time, whether the law is "plainly" contrary to the Constitution or not. Just wait. And a docile Congress will have no opportunity to override the veto, unlike in the plan you supported. And George, the Court will exercise its absolute veto over the whole lifetime of the law, instead of only when enacted (as you proposed).
You can read the whole discussion here, if you like. Thomas Jefferson agreed that, generally speaking, "If the legislature means to enact an injustice, however palpable, the court ... is not the body with whom a correcting power is lodged.â�
UPDATE: Jonah Goldberg wrote a terrific essay last March that explains why judges shouldn't overturn statutes unless the statutes PLAINLY contradict the Constitution. Also, here's an interesting blog post from PrawfsBlog dated last April, discussing the idea of requiring a supermajority of justices in order to overturn a statute.
Posted in Analysis and Predictions —
Posted at 6:08pm on Dec. 31, 2005 2005 in review
By Irishlaw
For a funny look back at the major judicial events of 2005, here's Dave Barry. Enjoy :)
The Supreme Court remains in the news in . . . JULY . . . when Justice Sandra Day O'Connor announces her retirement, setting off a heated debate between right-wing groups, who think the president should appoint a conservative to replace her, and left-wing groups, who think the president should drop dead. Eventually Bush nominates a man going by the moniker of "John Roberts,'' who, in the tradition of recent Supreme Court nominees, refuses to reveal anything about himself, and wears a Zorro-style mask to protect his secret identity. In response, Democrats on the Senate Judiciary Committee, led by Sen. Joe Biden, vow to, quote, "get on television a LOT.''
In non-hurricane news [in September], the Senate confirms the Supreme Court nominee known as "John Roberts'' after the Judiciary Committee spends several fruitless days trying to trick him into expressing an opinion by asking such trap questions as "Can you tell us the capital of Vermont and your views on abortion?'' The only moment of drama comes when Sen. Joe Biden launches into his opening remarks, thus causing several committee members, who forgot to insert earplugs, to lapse into comas . . .
Speaking of appointees, in . . . OCTOBER . . . President Bush, needing to make another appointment to the Supreme Court, conducts a thorough and painstaking investigation of every single woman lawyer within an 8-foot radius of his desk. He concludes that the best person for the job is White House Counsel Harriet Miers, who, in the tradition of such legendary justices as Felix Frankfurter, Louis Brandeis and Oliver Wendell Holmes, is a carbon-based life form.
Ultimately Miers withdraws her name. The president, after conducting another exhaustive search, decides to appoint "John Roberts'' again, because it worked out so well the first time. Informed by his aides that there could be some legal problem with this tactic, the president finally decides to nominate Samuel Alito. Democrats immediately announce that they strongly oppose Alito and intend to do some research soon to find out why.
Still looking, apparently. Happy New Year!
Posted in Uncategorized —
Posted at 4:32pm on Dec. 31, 2005 A3G is Back . . . and <em>WaPo</em> Studies Alito
By AndrewHyman
See here and here for the latest on A3G. S/he is headed for DC, to toil in an unknown capacity.
In other news, WaPo has a lengthy analysis of Judge Alito's record, in their Sunday edition. An excerpt:
Overall, the analysis shows, Alito does not disagree with majority opinions more frequently than most federal appeals judges do in similar cases. Yet a closer look finds that he dissents most often in areas where his views are least typical of the average judge: cases in which he has favored religion and largely sided against immigrants and one group of convicted criminals: prisoners facing the death penalty....Because Supreme Court justices are free to disregard precedent, Alito's decisions are an imperfect barometer of how he might rule if he succeeds Sandra Day O'Connor, a pivotal member of the high court.
Maybe I'm nitpicking, but two colons in one sentence? A3G would never do that.
UPDATE: On Sunday, the Post also has another article regarding Alito, reporting that there were "four instances ... in which the Supreme Court came down on the opposite side from Alito. In three cases, the high court agreed with his position. One case is pending."
Posted in News —
Posted at 12:09pm on Dec. 31, 2005 Proof that people will analyze anything
By krempasky
Who has time to go through transcripts of SCOTUS oral arguments creating data points for the [laughter] notation? This guy. And it turns out - our favorite is also the funniest.
Justice Scalia was the funniest justice, at 77 "laughing episodes." On average, he was good for slightly more than one laugh - 1.027, to be precise - per argument.
Justice Stephen G. Breyer was next, at 45 laughs. Justice Ginsburg produced but four laughs. Justice Clarence Thomas, who rarely speaks during arguments, gave rise to no laughter at all.
Posted in SCOTUS —
Posted at 11:47am on Dec. 31, 2005 2006 Predictions
By krempasky
Since RedState is down for the weekend...
- The Indianapolis Colts do not win the Super Bowl
- The team drafting first in the NFL trades down to let someone else draft Reggie Bush.
- President Bush gets the chance to nominate another Supreme Court Justice, but Democrats stonewall until after the midterm elections. The nominee is confirmed when Dems fail to take back the Senate.
- John McCain's "torture Amendment" is signed into law. President Bush's nominees to the Federal Election Commission are confirmed. Coincidence?
- Mike Pence stays at the helm of the RSC, where for the first time in a long time, Conservatives stage a revolt over a rule - and win. Likely candidate? President Bush's immigration "reform"
- Sean Hannity overtakes Rush Limbaugh in weekly listeners
- Pajamas Media has a major overhaul of its business model.
- Pajamas Media has another major overhaul of its business model.
- Wal-Mart has a very, very good year.
Posted in Humor —
Posted at 11:58pm on Dec. 30, 2005
By AndrewHyman
THE NEW YEAR
by John Greenleaf Whittier (1839)
The wave is breaking on the shore,
The echo fading from the chime;
Again the shadow moveth o'er
The dial-plate of time.
In that dying year hath been
The sum of all since time began;
The birth and death, the joy and pain,
Of Nature and of Man.
O'er the blackness of the storm
A bow of promise bends on high;
And gleams of sunshine, soft and warm,
Break through our clouded sky.
Posted in Images —
Posted at 4:59pm on Dec. 30, 2005 More About Kavanaugh: Hillary Says It Wasn't Her
By AndrewHyman
As mentioned a few days ago here at confirmthem, the Kavanaugh nomination for DC Circuit has been bounced back to the White House. Today, the New York Sun includes an article about it, titled "Democrats Try To Block Kavanaugh Bid." Here's info about the article, from Howard Bashman:
The New York Sun today contains an article that begins, "With so much attention focused on Supreme Court nominee Samuel Alito, President Bush's lower-court nominees have drawn relatively little notice in recent months. But a quiet maneuver last week by Senate Democrats aimed at blocking one of the president's closest advisers from the federal bench has set the stage for a potentially ferocious battle early next year."
And here's further info about the article, from Bench Memos:
The New York Sun reports Senator Hillary Clinton's office denies that she filed the objection that sent Brett Kavanaugh's nomination back to the White House. Kavanaugh's supporters are unconvinced. Kavanaugh was the only Bush judicial nominee whose nomination was returned at the close of the Senate session. The remaining pending judicial nominations were all held over by unanimous consent.
For some reason, I'm not able to access the New York Sun article, but maybe you can.
UPDATE: I'm now able to access the New York Sun article.
Posted in Circuit Courts —
Posted at 5:28pm on Dec. 29, 2005 Will NSAââ‚â„¢s Spying Bring Scrutiny of Alitoââ‚â„¢s 4th Amendment Opinions?
By AndrewHyman
I don't think so. Even people who believe NSA's surveillance program violated federal statutes are shying away from the idea that the program violated the 4th Amendment. For example, George Washington University Professor Orin Kerr has written that, ââ‚Å“On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent.ââ‚? Likewise, Robert Levy, Senior Fellow in Constitutional Studies at the Cato Institute, has written that, ââ‚Å“I do not contend that the NSA executive order violates the Fourth Amendment.ââ‚? And we have this from Armando Llorens of Daily Kos: ââ‚Å“My objections are not based on the 4th Amendment.ââ‚?
I just don't see how Alito's 4th Amendment opinions will receive any more scrutiny than they otherwise would have received, on account of this whole NSA thing. Incidentally, I am not even persuaded that the surveillance program violated federal statutes, much less the 4th Amendment.
Posted in Analysis and Predictions —
Posted at 1:36pm on Dec. 29, 2005 "ALITO SUPPORTED THE BLACK PANTHERS!"
By AndrewHyman
That's the headline we likely would have seen in newspapers and press releases, if liberals were interested in portraying Judge Alito as a supporter of black power, civil rights, and liberal causes --- instead of as an opponent. Associated Press merely notes that the news about Alito and the Black Panthers "sparked little to no interest from groups promoting or opposing his nomination to the Supreme Court." Alito's memorandum is here, and WaPo summarizes:
As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. urged the Reagan administration not to contest a lower court's ruling in favor of a Black Panther Party lawsuit against top government officials, according to documents released by the National Archives yesterday.
More on Alito's civil rights record is here. Meanwhile, the Chicago Tribune has a long article today discussing how the abortion issue is going to push aside issues of greater "importance," during the Alito hearings. The article, titled "How focus on Roe pushes aside other court issues," ends with the following:
Sources: Planned Parenthood Federation of America, National Abortion and Reproductive Rights Action League, Center for Reproductive Law and Policy, Tribune archives.
'Nuff said on that score. Incidentally, CFJ has a new report out about CFIJ; you can learn what the acronyms stand for, and read the report, here.
UPDATE: Charlie Savage has an informative article about the Black Panther case, here in the Boston Globe.
Posted in News —
Posted at 4:30pm on Dec. 28, 2005 Business Gets Behind Alito
By Marshall Manson
There's an interesting story in today's Investors Business Daily. It focuses on the National Association of Manufacturers' recent endorsement of Judge Alito's confirmation to the Supreme Court. For a long time, the business portion of the conservative coalition was often reticent to get involved with Supreme Court battles because the folks in corporate board rooms are squeamish when it comes to talking about the social issues that often dominate the debate.
But Governor John Engler, who now heads NAM, understands that the importance of having judges who will put the law and the Constitution first. Business benefits from the more stable legal climate that these judges create. And, to his credit, Governor Engler isn't squeamish about anything. It's really thanks to his leadership that business is making its voice heard in the Senate in favor of Judge Alito's confirmation.
Posted in Alito —
Posted at 10:37pm on Dec. 27, 2005 You Can't Quote the Constitution Here --- This is a Discussion of Law!
By AndrewHyman
In the Boston Globe today, Charlie Savage has an article discussing a specific part of the Constitution without actually quoting it, and that journalistic habit has always annoyed me. It also reminds me of a line from Dr. Strangelove. Anyway, the subject of Savage's article is Judge Alito's stance with respect to the Due Process Clause, though the article never explicitly mentions the words "due process" (as if reporters must shield their readers from what the law actually says). The article includes this:
"There are many very important and serious legal scholars who take issue with [liberty rights] because it very quickly becomes what the judge thinks the law should cover," said Sean Rushton, of the conservative Committee for Justice.
Hmm, I wonder what those words were that got replaced by brackets. Maybe they included the words "due process"? For the record, the Fifth and Fourteenth Amendments both say that no person "shall be deprived of life, liberty, or property without due process of law."
UPDATE: Sean Rushton comments here.
SHAMELESS PLUG: I wrote a law review article about the Due Process Clause, here.
Posted in Analysis and Predictions —
Posted at 2:35pm on Dec. 26, 2005 'Twas Two Weeks Before Hearings
By AndrewHyman
Monday, January 9, 2006 is when the Alito hearings are scheduled to begin.
Posted in News —
Posted at 8:22pm on Dec. 24, 2005 HAPPY HOLIDAYS!
By AndrewHyman
Merry Christmas and Happy Hanukkah from me and everyone else remotely affiliated with this web site.
Because all of our ancestors emigrated from Africa during the past two hundred millennia, that makes us all African Americans. Happy Kwanzaa, and click on this Kwanzaa image if you want to learn about it:
Posted in Images —
Posted at 6:53pm on Dec. 24, 2005 Kavanaugh Nomination Bounced Back to White House
By AndrewHyman
According to a report yesterday in a Los Angeles newspaper (the Metropolitan News-Enterprise), the Senate has taken the unusual step of returning the DC Circuit nomination of Brett Kavanaugh to the President:
The Senate, rushing to adjourn for the year, has confirmed seven federal [district] court nomineesâ₦.As it traditionally does during the odd-numbered year, the Senate unanimously agreed to hold over a number of [appellate] nominations for consideration next yearââ‚â€including those of Idahoans Randy Smith and William G. Myers III for the Ninth Circuit and U.S. Magistrate Judge Stephen Larson for district judge in the Central District of California. But it was unable to reach such an agreement with respect to Justice Department official and D.C. Circuit nominee Brett Kavanaugh, whose nomination was returned to the White House.
Thanks to one of our commenters for pointing this out. Further info about Kavanaugh can be found here at confirmthem. Kavanaugh was nominated on February 14, 2005. Subsequently, there was a Senate deal regarding judicial nominations on May 23, 2005 and the deal will remain valid until 2007. If Kavanaugh is renominated next month, then his will clearly be a "future nomination" within the terms of the ââ‚Å“deal,ââ‚? and he could only be filibustered under ââ‚Å“extraordinary circumstances.ââ‚? So, letââ‚â„¢s hope that Kavanaugh --- who is very highly qualified to serve on the D.C. Circuit --- will be renominated next month.
Hat Tip: Matthew Morris.
UPDATE: Here's a link to the Congressional Record.
UPDATE #2: Hugh Hewitt has quite a bit to say about this.
Posted in News —
Posted at 2:38am on Dec. 24, 2005 The Knives Come Out At The <em>New York Times</em>
By AndrewHyman
Today (Saturday), the New York Times falsely reports that when Samuel Alito was working for the Justice Department on a case in 1984, he wrote a memo urging his superiors to eventually ââ‚Å“make the argument that top officials were free to violate the law." This statement by the New York Times is nonsense. In reality, the only issue was personal civil liability of cabinet officials, and not criminal liability, so Alito never remotely suggested that any top officials should be "free to violate the law," nor did Alito remotely suggest that plaintiffs should be unable to obtain injunctive relief against wayward officials. The Times also neglects to mention that many public officials have always had civil immunity from being personally sued for their official acts related to national security, once they leave office. Those other officials are hardly "free to violate the law," as the New York Times falsely reports Alito wanted for cabinet members.
The case that Alito was involved with here was MITCHELL v. FORSYTH, 472 U.S. 511 (1985). In that case, the Court rejected the Justice Departmentââ‚â„¢s argument that ex-Cabinet members are entitled to absolute civil immunity in national security matters, by a vote of 4-3 (Justices Rehnquist and Powell did not vote). The Courtââ‚â„¢s opinion was written by Justice White, who began by forthrightly acknowledging that the President, judges, prosecutors, witnesses, and officials performing "quasi-judicial" functions all enjoy that kind of absolute immunity. Chief Justice Burger (siding with the Department of Justice) added that it was well-established that congressional aides have that kind of immunity too. Perhaps the best refutation of todayââ‚â„¢s New York Times article is provided by the opinion of Justice Stevens in that 1985 case. Stevens sided with Burger and the Department of Justice on the ââ‚Å“absolute immunityââ‚? issue, and hereââ‚â„¢s what he wrote (citations and punctuation omitted):
Some public officials are shielded by absolute immunity from civil damages liability. For Members of Congress that shield is expressly provided by the Constitutionâ₦.[T]here surely is a national interest in enabling Cabinet officers with responsibilities in this area to perform their sensitive duties with decisiveness and without potentially ruinous hesitation. The passions aroused by matters of national security and foreign policy and the high profile of the Cabinet officers with functions in that area make them easily identifiable targets for suits for civil damages. Persons of wisdom and honor will hesitate to answer the President's call to serve in these vital positions if they fear that vexatious and politically motivated litigation associated with their public decisions will squander their time and reputation, and sap their personal financial resources when they leave office. The multitude of lawsuits filed against high officials in recent years only confirms the rationality of this anxietyâ₦. [I]t took 13 years for the federal courts to determine that the plaintiff's claim in this case was without merit.â₦ I believe the Cabinet official is entitled to the same absolute immunity as the President of the United States.
The Times article does not accuse Justice Stevens of wanting top officials to be "free to violate the law." Could the Times perhaps be biassed against Alito?
Not contented to completely distort the facts of this story, and to portray Judge Alito as an advocate of lawlessness, the New York Times is also running an editorial today, to accompany their bogus ââ‚Å“newsââ‚? article. Among other things, the editorial says that, ââ‚Å“the Supreme Court flatly rejected Judge Alito's view of the lawââ‚? in Mitchell v. Forsyth. As mentioned, the vote was 4-3. Justice Stevens and Chief Justice Burger sided with the Justice Department, and Justice Oââ‚â„¢Connor said the Court did not have any need to decide the issue. A 4-3 vote is hardly a ââ‚Å“flatââ‚? rejection, and let's not forget that the Times falsely reported what it was that was rejected. This case simply was not about allowing anyone to be ââ‚Å“free to violate the law.ââ‚? The title of the Times editorial is "Alito's Zeal for Presidential Power," but every justice in Mitchell v. Forsyth acknowledged that the President of the United States already had absolute civil immunity for his official acts, and that remains true today.
UPDATE: Ed Whelan points out that the Carter Administration took the same position as the Reagan Administration on this issue.
UPDATE #2: The Times editorial also critizes the favorable stance that Alito took during the Reagan administration regarding the use of presidential signing statements. However, President Clinton used constitutional signing statements "more than the Reagan administration (105 to 71)."
Posted in News —
Posted at 11:37pm on Dec. 23, 2005 More on Alito and Wiretaps
By AndrewHyman
John Hinderaker skewers the Associated Press report that Feddie just linked to, here.
UPDATE: Fred Barbash at the Washington Post Nomination Blog has a post titled "Really Rotten Headlines," noting that this AP story is having an unfortunate ripple effect on headlines across the country.
Posted in News —
Posted at 6:49pm on Dec. 23, 2005 "Alito Defended Officials From Wiretap Suits"
By feddie
The AP has this report, which notes, inter alia:
Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror.
Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse â₆seen now through the prism of Bush's actions â₆as well as clues to the judge's understanding of how the Supreme Court operates.
. . . .
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Monday he would ask Alito about the president's authority at confirmation hearings beginning Jan. 9. The memo's release Friday prompted committee Democrats to signal that they will press the conservative jurist about executive powers.
Posted in SCOTUS —
Posted at 12:53pm on Dec. 23, 2005 Deja Vu All Over Again
By Marshall Manson
Ed Whelan has the goods on the Roe memo that the news folks are whigging out about today:
The AP reports today, and Drudge headlines, the ââ‚Å“newsââ‚? that in June 1985 Sam Alito, as an assistant to the Solicitor General, wrote a memo in the Thornburgh case on how the Department of Justice should advance the Reagan administrationââ‚â„¢s goal of overturning Roe v. Wade. The memo that AP breathlessly reports is the exact same memo that was made public 23 days ago and that has already been the subject of extensive commentary.
Wake up, AP!
Posted in Alito —
Posted at 7:19pm on Dec. 22, 2005 The Rusher Papers
By AndrewHyman
Sen. Kennedy has written to Sen. Specter requesting Specter's assistance in accessing the papers of William A. Rusher at the Library of Congress. Rusher was a founder of the group "Concerned Alumni of Princeton" (CAP), of which Samuel Alito was a member before the group disbanded in the 1980s. Access to the Rusher papers is subject to restrictions, and some of the papers won't even be publicly available until 50 years after Mr. Rusher's death. The New York Times has apparently already been given permission to look at the Rusher papers pertaining to CAP, and David Kirkpatrick reported on November 27, 2005 as follows:
[R]ecords of Concerned Alumni are contained at the Library of Congress in the papers of William A. Rusher, a leader of the group and a former publisher of National Review. Those records and others at Mudd Library at Princeton give no indication that Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, was among the group's major donors. He was not an active leader of the group, and two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.
So, it's somewhat mysterious why Sen. Kennedy wants access to the papers. In response to Kennedy's requests, "Rusher has refused, citing his right to know who is seeking the material and how it will be used."
Posted in Alito —
Posted at 3:37am on Dec. 22, 2005 Specter Takes Some Pressure Off Alito to Address Spying
By AndrewHyman
It now seems less likely that the nomination hearings of Judge Alito will be used as an opportunity to attack President Bush regarding the controversial surveillance program that's recently come to light. AP reports:
If Senators go after Alito too much on this issue, Specter can just tell them to hold their horses and wait for Gonzales.
Posted in News —
Posted at 1:22pm on Dec. 21, 2005 ABC Poll Shows Alito Support Comparable to Support Roberts Had
By AndrewHyman
See here.
Posted in News —
Posted at 12:09am on Dec. 21, 2005 Brady Center Opposes Alito; Sun Rises in the East
By Marshall Manson
It will surprise no one to learn that the Brady Center today announced its opposition to Judge Alito's confirmation. The indispensable folks in Senator Cornyn's office point out that Brady called Judge Alito "Machine Gun Sammy" on the day his nomination was announced. So much for serious contemplation and consideration. Not surprisingly, the Brady Center's opposition is based on distortions of the Alito opinions and fundamental misrespresentations of the facts. The Cornyn folks have this pinned down, too:
But as is often the case with Judge Alitoââ‚â„¢s opponents, the attacks arenââ‚â„¢t supported by the facts.
For example, in his Rybar dissent, Judge Alito did not hold that the ââ‚Å“federal machine gun banââ‚? was unconstitutional. In fact, he made quite clear that Congress could and did ban the buying and selling of machine guns. Judge Alito said only that Congress could not ban mere possession of firearms because possession is not ââ‚Å“commerce,ââ‚? and Congress can regulate only ââ‚Å“interstate commerce.ââ‚?
Judge Alitoââ‚â„¢s analysis relied on the Supreme Courtââ‚â„¢s decision the year before in United States v. Lopez, where the Court held that Congress could not ban firearm possession near schools. Notably, Justice Oââ‚â„¢Connor was in the Lopez majority on which Judge Alito relied. Although it is true that the Court changed course nine years later in Gonzales v. Raich, Judge Alito obviously could not have anticipated that subsequent development.
Most importantly, however, Justice Oââ‚â„¢Connor (and two others) dissented in Raich. Thus, if Judge Alito is extreme for thinking mere possession is not ââ‚Å“commerce,ââ‚? so is Justice Oââ‚â„¢Connor. We all know thatââ‚â„¢s not true.
I'm sure others will have more to say on this. How about you, Cam Edwards?
Posted in Alito —
Posted at 11:44pm on Dec. 20, 2005 Dem Alito Strategy - Deja Vu
By Carol Platt Liebau
Haven't we heard this before? The Democrats want Judge Alito's papers from the days when he worked in the Solicitor General's office.
As you'll recall, they tried this gambit with the John Roberts nomination, and fortunately, The White House didn't accede to the unreasonable demands.
Nor should they here -- as both Democratic and Republican solicitors general have agreed, releasing internal documents from that office would compromise the effectiveness of its functioning.
Even so, the visions of trying to predicate a filibuster on the Administration's refusal to release the documents, a la Miguel Estrada, must be dancing like sugarplums in the Democrats' heads.
Not that it's likely to work with a higher profile Supreme Court nomination.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 1:16pm on Dec. 20, 2005 Public Still Behind Alito Despite "Sleazy" Ads
By AndrewHyman
Howard Bashman has the latest news headlines here, regarding the Alito nomination, including the following two items.
The Gallup Poll reports today that "Public Still Behind Alito; Democrats slightly more negative."
In The Oregonian, columnist David Reinhard has an op-ed entitled "Alito nomination: Sleazy ad 'Borks' judge's position on legality of warrants."
UPDATE: here's the ad that Reinhard very correctly calls "sleazy." And here's an even sleazier video. The case that Reinhard was writing about was previously discussed here at confirmthem.
Posted in Alito —
Posted at 10:32pm on Dec. 19, 2005 Does the NSA Bug You?
By AndrewHyman
According to AP, bugging is likely to be a big issue during the Alito confirmation hearings, given recent revelations that the National Security Agency has been using radio intercepts to listen in on international telephone calls without a warrant, as part of the "Global War on Terror" (GWOT). If you want to learn more about this issue, the place to begin is with Orin Kerr at the blog Volokh Conspiracy. Kerr explains the issue in detail, and concludes that the bugging probably did not violate the Constitution, but may have violated the Foreign Intelligence Surveillance Act ("FISA" was passed in 1978).
The reason why Kerr thinks the bugging program was constitutional is because only international calls were tapped, rather than tapping domestic calls. The federal government has broad power to search people entering or leaving the United States, without a warrant, as you know if you've ever crossed one of our borders. So, tapping international phone calls --- in the context of the GWOT --- may well have been "reasonable" within the meaning of the Fourth Amendment. As for FISA, Kerr provides excellent background about that statute. Also, Attorney General Gonzales held a press conference this morning to deal with the FISA issue. Note that FISA set up a special court to issue warrants for surveillance, although the administration reasonably says that sometimes there simply isnââ‚â„¢t enough time to go to the FISA court before or during surveillance of a critical phone call.
Anyway, this important issue will probably be raised at the Alito hearings.
UPDATE: University of Chicago Law Professor Cass Sunstein says: ââ‚Å“I think the authorization of use of military force is probably adequate as an authorization for surveillance.ââ‚? Sunstein's full statement is here with a followup here and an interview with Hugh Hewitt here. Hat Tip: Patterico. On December 28, Professor Sunstein blogged some more on this subject.
UPDATE #2: Byron York had an outstanding article December 19 and another
December 20, and yet another December 21 reporting critical aspects of the FISA controversy that you probably haven't heard about.
Posted in News —
Posted at 12:46pm on Dec. 19, 2005 Politicization of Confirmation Process
By Marshall Manson
I wanted to draw attention to this column by Judge Bill Constangy in todayââ‚â„¢s Washington Times. The conclusion sums up the argument nicely:
Proven intellectual probity, scholarship, character, leadership, maturity, diversified life experiences and fairness, the true earmarks of the best appellate judges, have been displaced with deceptive, superficial and potentially harmful selection criteria. Lawyers with safe lives cloaked in anonymity, or Machiavellian opportunists who mold their opinions in private conversation to suit their listeners and conceal their true views or lack of conviction, are dangerous people to invest with the weighty legal burdens of our society.
I've made similar points in the past, most notably here. But it's worth repeating: the Democrats' are undermining our legal system by pressing ideology into the confirmation process.
Posted in SCOTUS —
Posted at 6:15pm on Dec. 18, 2005 Seeing Crimson
By AndrewHyman
Howard Bashman dispels fears that Harvard Law School grads are taking over the U.S. Supreme Court. But let's remain vigilant. :-)
Meanwhile, Bruce Fein argues in WaPo that Judge Alito shouldn't run from his record in the Reagan administration, by portraying himself as "an opportunist who would have been equally inclined to serve under President Jimmy Carter." Fein cautions that "[w]hat worked once for Roberts may not fly so readily a second time." Jack Germond echoes that same theme, in the Baltimore Sun. Germond recalls Nixon's nomination of G. Harrold Carswell, who was not only "mediocre," but who also had a racist past from which he tried to run. Hopefully, Judge Alito will proudly stand by the statements he made in 1985, instead of running from them.
UPDATE: Actually, Alito did serve in the Carter Administration.
Posted in Analysis and Predictions —
Posted at 12:57pm on Dec. 17, 2005 Alito on Civil Rights
By AndrewHyman
The Washington Post has an editorial today titled "Alito on Civil Rights." Here's an excerpt:
Judge Alito has not been a predictable opponent of civil rights plaintiffs. He seems to adopt a more solicitous approach to claims of religious bias. He wrote a strong opinion in the case of an Orthodox Jewish woman who alleged she had been pushed out of a college teaching job because of her religious practice. He also ruled for Muslim police officers in Newark who challenged their department's ban on beards.
And he has sided with civil rights plaintiffs in cases involving race. He dissented from a decision barring a race bias lawsuit because of a statute of limitations -- not what you would expect from a judge unblinkingly keen to protect businesses from civil rights litigation. He has voted to overturn convictions because of racial manipulations of juries. And he declared unlawful the search of a car whose driver had been stopped because police were looking for two black men driving a black sports car following an armed robbery; such vague knowledge, he wrote, "could not justify arrest [of] any African-American man who happened to drive by in any type of black sports car."
Judge Alito, in short, has sometimes taken a narrower view than we believe healthy of statutory civil rights protections, but his record does not support the frequent descriptions of him as a knee-jerk reactionary.
The Post does criticize some of Alito's civil rights opinions, including his opinion in Riley v. Taylor which involved allegations that prosecutors had objected to jurors on account of race; I've explained here at confirmthem why Alito's opinion in that case should not be troubling. Also, Peter Kirsanow had a column in National Review two days ago, titled "Mainstream Sam: Alito on Civil Rights," rebutting criticism of Alito from the Congressional Black Caucus (CBC). Here's an excerpt from Kirsanow's column:
[A] review of Judge Alito's extensive civil-rights record on the Third Circuit (a record nearly ten times as large as the sample reviewed by the CBC) shows that if he's a far right, closed-minded ideologue, then so are all the other judges on the court, whether appointed by Democrats or Republicans. Obviously that's not the case....Judge Alito is firmly within the mainstream of civil rights jurisprudence. Attacks based on his civil-rights record will fail.
Given this country's tragic history regarding race relations, and given the great strides made in the last fifty years, it's very understandable that people would be interested in this issue. However, Judge Alito's record gives no cause for serious concern.
UPDATE: See here for info about Alito and the Black Panthers.
Posted in Alito —
Posted at 1:41pm on Dec. 16, 2005 Conference Call with Senator Frist
By Carol Platt Liebau
On a conference call, Senator Bill Frist is reaffirming that he doesn't believe it will be necessary, but he's got the constitutional option on the table and will invoke it if need be. He plans to have the nomination to the floor by January 20th -- maybe earlier, but certainly no later.
Posted in Analysis and Predictions —
Posted at 11:55am on Dec. 16, 2005 Who Funds the Anti-Alito Left
By carney
In this week's Human Events I dig into the finances of the anti-Alito coalition and find corporate cash.
Wal-Mart, Ford Motor Co., AT&T, and Fannie Mae are among the major U.S. corporations whose foundations fund the liberal groups now waging war against Samuel Alito.
Posted in News —
Posted at 10:43am on Dec. 15, 2005 Perils of press
By krempasky
Pat Cleary writing over at RedState has noticed an odd (yet oh so expected) happening in the media surrounding the Alito nomination. Support the nominee - and not a peep in the news. Organize three aging hippies with some anarchist college students - and the press will line up at your door.
Posted in Alito —
Posted at 8:26pm on Dec. 14, 2005 Alito=Bork?
By Carol Platt Liebau
That, at least, is the left's reported strategy against Samuel Alito -- to try to paint him as the second coming of Robert Bork (or, more accurately, the second coming of the caricature of Robert Bork that was purveyed to Americans in the days before conservatives had learned how to fight back, when the Senate was controlled 55-45 by Democrats, and with a Reagan Administration weakened by Iran-Contra).
Good luck to them. Chicken Little (and how aptly that name fits the "cut and runners" in the other party!) can't continue to claim that the sky is falling again and again and again without suffering a credibility problem. Which is precisely what the Democrats have.
It seems pretty significant that the left has to cast back to 1987 for a template of a successful derailing of a Supreme Court nomination. Because that's the first (and, really, the only) time they were successful in accomplishing it.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 4:22pm on Dec. 14, 2005 Specter Selectively Quotes Rehnquist
By AndrewHyman
Yesterday, Senator Specter wrote a letter to Judge Alito, asking about stare decisis, among other things. Howard Bashman has this fuzzy link to Specter's letter. In the letter, Specter wrote that Chief Justice Rehnquist believed ââ‚Å“cases should be upheld when they have become ââ‚Ëœpart of our national cultureââ‚™ââ‚? and that Rehnquist believed "Miranda should be upheld because its requirements had become ââ‚Ëœso embedded in routine police practice to the point where the warnings [were] a part of our national culture.ââ‚™ââ‚?
Actually, Rehnquist wrote that "national culture" is only one of many factors to consider in the context of stare decisis. Obviously, the whole point of having an independent judiciary is so that the courts can defy the "national culture" when the Constitution demands it.
For details about Rehnquist's views on Miranda, and an explanation of how Roe and Casey differ from Miranda and Dickerson, see here at confirmthem.
UPDATE: A better image of Specter's letter to Alito is here.
Posted in News —
Posted at 12:29pm on Dec. 14, 2005 You say "draconian agenda" like it's a bad thing
By feddie
Seth Rosenthal of the leftist "Nation" magazine has a piece out today entitled "Pro-Alito Buzz Cloaks a Draconian Agenda," in which he notes, inter alia:
Following precedent "is fo' suckas." Or so says prolific right-wing blogger Steve Dillard at Southern Appeal. As detailed nearly twenty years ago in reports produced by Edwin Meese's Justice Department, the right would like to raze what it sees as the law's accumulated liberal superstructure and rebuild it from the ground up based on their interpretation of the 215-year-old views of those who ratified the Constitution. Overturning Roe v. Wade is just the tip of the iceberg. Sunstein explains--and the Meese reports confirm--that the new arrangement would feature a Constitution that severely restricts the work of federal regulatory agencies like the Securities and Exchange Commission and the National Labor Relations Board; hamstrings federal legislation prohibiting pollution, hazardous working conditions and discrimination; and permits state governments to discriminate against women, ban contraception and regulate private, noncommercial sex between consenting adults.
How exciting. I've always wanted to be a boogeyman of the left. :)
Posted in SCOTUS —
Posted at 10:21pm on Dec. 13, 2005 Alito and the Death Penalty: Smith v. Horn
By AndrewHyman
Recently, lefty groups like the Alliance for Justice and also Berkeley law professor (and former Ruth Ginsburg clerk) Goodwin Liu have been attacking Judge Alitoââ‚â„¢s dissent in Smith v. Horn, 120 F.3d 400 (3rd Cir. 1997). Professor Liu (writing under the aegis of the liberal American Constitution Society and also writing separately in the LA Times) calls Alitoââ‚â„¢s dissent in that death penalty case ââ‚Å“perhaps the most disturbing example --- and the most revealingââ‚? among Alitoââ‚â„¢s writings on capital punishment. Likewise, the Alliance for Justice writes that Alitoââ‚â„¢s dissent in Smith v. Horn was ââ‚Å“especially curiousââ‚? because Alito urged the court to entertain a new argument that neither of the parties had ever suggested.
I looked over the opinions in this case of Smith v. Horn, and Alitoââ‚â„¢s dissent is perfectly reasonable. The same cannot be said for the lefty attacks. George Mason law professor Horace Cooper wrote a good summary of the case at Townhall, but Iââ‚â„¢ll add a few words of my own.
Clifford Smith was convicted of a murder committed during the course of a robbery. The majority in this Third Circuit case held that Smith's conviction had to be overturned and a new trial ordered, because of a perceived ambiguity in the jury instructions. According to the Third Circuit majority, various references in the jury instructions to the concept of an "accomplice" were ambiguous in that they could be misinterpreted to mean ââ‚Å“accomplice in the robberyââ‚? instead of "accomplice in the killing.ââ‚? However, Judge Alito disagreed that the jury instructions were ambiguous or unconstitutional. Additionally, Alito observed that ââ‚Å“Smith did not challenge the relevant portions of the jury instructions on any ground in either of his two appeals to the Pennsylvania Supreme Court.ââ‚? Thus, Alito suggested that Smith had not exhausted his remedies in state court, and Alito also suggested that Smith had procedurally defaulted on the jury instruction issue. Alito therefore sought to give the Commonwealth of Pennsylvania an opportunity to brief these two issues (i.e. exhaustion and default). So, the lefty attack machine is now in full throttle, saying that Judge Alito improperly suggested arguments that had never been suggested by either party.
The key thing to keep in mind is that exhaustion and default are both unusual issues that can be raised by a court without having been raised by the parties. The U.S. Supreme Court has said so, in Granberry v. Greer, 481 U.S. 129 (1987):
[T]here are exceptional cases in which the State fails, whether inadvertently or otherwise, to raise an arguably meritorious nonexhaustion defense. The State's omission in such a case makes it appropriate for the court of appeals to take a fresh look at the issue. The court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim.
The Third Circuit majority in Smith v. Horn acknowledged that this type of situation is unusual, and acknowledged the court's discretion to consider such unusual matters even though they werenââ‚â„¢t raised by the parties:
Where the issue was never raised in the district court, we are afforded discretion pursuant to Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675 (1987)â₦. The dissent correctly notes that we and several of our sister circuits have held that this issue [of procedural default] may be raised sua sponte by the court of appealsâ₦.Nonetheless, it is evident from these cases that whether we do so is discretionary, and that our discretion is guided by the same considerations as those discussed in Granberryâ₦.With regard to both nonexhaustion and procedural default, we are â₦ persuaded that when the state has never raised an issue in either the district court or this Court we should be even less inclined to raise it sua sponte than when the state either has raised the issue here only belatedly or has raised it in the district court but has not pursued that line of attack in the court of appeals. But see Washington, 996 F.2d at 1448 n.3 ([2nd Cir.] stating that complete failure to raise defense should be treated same as belatedly raising defense); Hardiman, 971 F.2d at 504 n.6 (same [in 10th Cir.])â₦.We certainly have the discretion to raise these issues sua sponteâ₦.In cases in which an issue has not been raised by either party in either the district court or in this Court, we will decline to address the issue unless consideration of these factors clearly indicates that we should depart from our standard practice.
The majority in Smith v. Horn thus acknowledged the plausibility of Alitoââ‚â„¢s argument, and admitted that such an argument had been endorsed in the second and tenth circuits. Strangely, the majority in Smith v. Horn refused to consider the issues of exhaustion and procedural default, and refused even to allow briefing on those serious issues. Instead, the court overturned a state jury verdict, and ordered a new trial.
Posted in Alito —
Posted at 5:34pm on Dec. 13, 2005 Judge Bork on a Different Kind of Original Intent
By Marshall Manson
There's a letter of critical importance on the subject of original intent -- albiet of a different variety -- in today's WSJ by Judge Robert Bork. Let me quote the central tenet:
What counts in mixology is the "original understanding" of the martini's essence by those who first consumed it. The essence remains unaltered but allows proportions to evolve as circumstances change. Mr. Felten's "near-perfect martini" is the same in principle as the "original-understanding martini" and therefore its legitimate descendant. Such latter-day travesties as the chocolate martini and the raspberry martini, on the other hand, are the work of activist bartenders.
Wonkette has the full text of the letter and her own thoughts here.
Posted in Humor —
Posted at 10:56pm on Dec. 12, 2005 Byrd and Frist Go At It Some More
By AndrewHyman
The Senate just came back from a three-week recess, and immediately Senators Byrd and Frist started arguing about the filibuster. Here's the Reuters report. "My principle is an up or down vote â₦ that's all I'm arguing for, is an up or down vote," Frist told Byrd. Byrd replied, "That's never been the rule here. Senators have the right to talk, the right to filibuster."
Of course, Senators don't have the right to talk after cloture is invoked, nor after the constitutional option is invoked. It's been that way for a very long time. The tradition has been to rarely invoke the constitutional option. But, the tradition has also been to allow up-or-down votes for majority-supported judicial nominations that are pending on the Senate floor.
Posted in News —
Posted at 8:35pm on Dec. 12, 2005 Dems Pursuing Specter
By Marshall Manson
Sources close to the Alito confirmation process are telling RedState that the Democrats are attempting to get Arlen Specter, at least privately, on their side. By raising the abortion issue, Democrats hope to persuade Arlen Specter to help resist the effort to confirm Alito.
In particular, some left leaning staffers on the Judiciary Committee and Senate Democrats are advancing the idea that Specter should aggressively pursue Alito on the issue of abortion and the Democrats will go after Alito on the issue of voting rights. The theory is that if Democrats push Alito on abortion, the public will just discount Democrat criticism. If, however, Specter, the Chairman, does that and Democrats mostly refrain from taking on the issue, but pursue voting rights instead, the public may just think Alito is wholly unacceptable.
Thus far Senator Specter has not gone for the idea. But, a couple of judiciary committee staffers are fearful that Specter just might be too agreeable with the Democrats behind the scenes.
We should also remember that Specter aggressively questioned then-nominee Roberts about abortion and privacy issues -- a tactic widely considered at the time to be an effort at preempting inevitable Democratic attacks on those issues.
Nevertheless, it seems that, as always, we should be keeping an eye on Senator Specter.
Posted in Alito —
Posted at 2:24pm on Dec. 12, 2005 Monday Alito News
By AndrewHyman
Howard Bashman has provided links to the following:
"Alito's supporters fight back": Columnist Robert Novak has this op-ed today in The Chicago Sun-Times.
Today at National Review Online, Edward Whelan has an essay entitled "Deserving Derision: The Left's ludicrous attack on Alito."
Also today, Progress for America Voter Fund issued a news release titled "'A Man of Honor, Principle, and Integrity' - Progress for America Voter Fund Announces a New Alito TV Ad." You can view the ad online via this link.
This past Friday, Nan Aron of the Alliance for Justice issued a news release titled "Pirolli v. World Flavors, Inc.: Unpublished Opinion Reveals Judge Alito's Conservative Legal Agenda." [UPDATE: If anyone has a link to the opinions in Pirolli, I'd be glad to include it here.]
"Lobby Groups Following Bork Playbook; Reaching for a Familiar Foe To Derail Alito Nomination": T.R. Goldman has this article (free access) in today's issue of Legal Times.
"Alito: A Sampling of Misleading Media Coverage." Stuart Taylor Jr. has this essay today online at National Journal.
Thanks again to Howard Bashman for the links.
Posted in News —
Posted at 3:31pm on Dec. 11, 2005 Starr, Cass, and Frist on the Alito Nomination
By AndrewHyman
Today, Ken Starr and Ron Cass have an op/ed in the Boston Globe, regarding reapportionment. Here's a sample:
Although boundary adjustments probably have increased minority representation in Congress, the jurisprudence of reapportionment has become needlessly complex and largely ineffective. The court has permitted a realignment of political power to advantage incumbents, create more safe districts, and facilitate greater division among elected representatives who no longer have to appeal to swing voters.
After fragmenting on the standards of racial gerrymandering, the court came up with no realistic way to assess what constitutes political gerrymandering. As Justice O'Connor said in Davis v. Bandemer in 1986 -- roughly contemporaneous with Judge Alito's statement -- the court's effort to identify political gerrymandering was ''flawed from its inception." Justice O'Connor charged that the court's decisions have been ''contrary to the intent of [the] Framers and to the traditions of this Republic."
[UPDATE: Professor Bainbridge also has some interesting thoughts about Alito's stance on reapportionment. And, Douglas Laycock explains Michael McConnell's views on the same subject.]
Also today, Senate Majority Leader Frist reiterated on Fox News Sunday that he would move to impose the so-called "nuclear option" to restrict use of the filibuster, if necessary. Meanwhile, the anti-Alito group "Rolling Justice" (part of the "Alliance for Justice") arrived in the town of Craig, Colorado on Friday, but no one showed up to meet them. In other news, today the Globe also has a report again debunking the Kos-inspired rumor that Judge Alito and President Bush were both lying when they said Alito's father immigrated from Italy.
Posted in Alito —
Posted at 6:21pm on Dec. 9, 2005 ââ‚Ëœtwas one month before the hearingsâ₦
By Marshall Manson
Courtesy of the brilliant folks in Sen. Cornyn's office...
Twas one month before the hearings, and all through the city
Not many Democrats were waiting, not even some on the Committee
The hard left was already distorting his rulings
Why wait for the hearings if you oppose all the Presidentââ‚â„¢s doings?
Some Senators asked for privileged documents, no exception
So much for the ââ‚Å“so-calledââ‚? right to privacy protection.
From strip searches to abortion, ââ‚Å“he's an extremist!ââ‚? they wailed
But we've heard it beforeââ‚â€against Judge Roberts, it failed.
Of course the attacks will not turn the public
ââ‚Å“Confirm himââ‚? they say, we want independent courts in our republic!
Posted in Alito —
Posted at 5:29pm on Dec. 9, 2005 Bruce Fein, the Homonymic School, and the Omega Glory
By AndrewHyman
Three days ago, Bruce Fein had a good column in the Washington Times discussing what he calls the ââ‚Å“homonymic school" of constitutional interpretation:
The homonymic school insists the Constitution sounds the same as the original document but means something different, i.e., whatever a majority of justices believe is socially or morally enlightened. The originalist school maintains the justices are confined to interpretations consistent with the intent and purposes of the Founding Fathers. Constitutional shortcomings or oversights are to be cured by amendments ratified by popular consensus, for example, the Bill of Rights, the Civil War Amendments, and the Women's Suffrage Amendment.
Fein previously wrote about this subject in January, and Paul covered it here at confirmthem. Fein makes an interesting point. Is the Supreme Court entitled to redefine the words in the Constitution as it pleases, so that the document sounds the same but means something completely different? Are there phrases in the Constitution so vague that the Supreme Court must give them all of their meaning? All you trekkies out there know the answer. On March 1, 1968 an episode titled ââ‚Å“The Omega Gloryââ‚? first aired on television. Hereââ‚â„¢s what Captain Kirk (a.k.a. Shatner) said to a bunch of primitives who worshipped the Constitution's words without understanding their meaning:
I did not recognize those words, you said them so badly -- Without meaningâ₦. Hear me! Hear this! Among my people, we carry many such words as this from many lands, many worlds. Many are equally good and are as well respected, but wherever we have gone, no words have said this thing of importance ... in quite this way. Look at these three words written larger than the rest with a special pride never written before or since -- Tall words proudly saying ... "We the people". That which you called Ee'd Plebnista was not written for chiefs or kings or warriors or the rich and powerful, but for all the people! Down the centuries, you have slurred the meaning of the words "We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity... do ordain and establish this constitution". These words and the words that follow .... must apply to everyone or they mean nothing!
Trekkies understand that the Constitution isn't full of meaningless abstractions. :-) It's a practical document written by practical people, and it doesn't give complete and total discretion to high priests on the Supreme Court. It doesnââ‚â„¢t mean whatever they (or we) would like it to mean. Even the majestic words ââ‚Å“due processââ‚? have what Alexander Hamilton called a ââ‚Å“precise technical import.ââ‚? Likewise, the majestic phrase ââ‚Å“privileges or immunities of a citizen of the United Statesââ‚? is limited (i.e. to rights that restrain the federal government). The meaning of such phrases is neither boundless nor empty, yet down through the centuries we have made them so by slurring their meaning.
Posted in Analysis and Predictions —
Posted at 1:19pm on Dec. 9, 2005 It's funny because it's true
By Zummo
Zach Brissett once again captures an odd truth about the Alito debate.
Posted in SCOTUS —
Posted at 1:08pm on Dec. 9, 2005 Just in time for Christmas . . .
By feddie
Judge Alito action figures! :)
BTW, sorry I've been away for so long. Things have been crazy of late. I hope to resume regular posting in the near future.
Posted in SCOTUS —
Posted at 9:18pm on Dec. 8, 2005 If Wishes Were Horses . . .
By Carol Platt Liebau
According to this story from Reuters, Senate Judiciary Committee Arlen Specter wishes that fellow senators and interest groups would wait for the Alito hearings before reaching a conclusion on the nomination. Well, senator, dream a little dream for me.
Either Specter is incredibly naive or hopelessly stupid. Why does he think that the President wanted the hearings before Christmas? To avoid the drip, drip, drip of the disinformation campaign being orchestrated by People for the American Way (and their ilk), along with their willing handmaidens in the U.S. Congress.
And yesterday, as Andrew notes below, Hugh Hewitt eviscerated the author of an incredibly misleading "analysis" piece about Judge Alito's career. But that's just the beginning of the smear campaign that the Democrats are planning -- counting on the complicity of their friends in the MSM.
Cross posted at CarolLiebau.blogspot.com.
Posted in Uncategorized —
Posted at 2:27am on Dec. 8, 2005 The Knight Ridder Story
By AndrewHyman
A few days ago, Stephen Henderson and Howard Mintz of Knight Ridder wrote an article that started like this:
During his 15 years on the federal bench, Supreme Court nominee Samuel Alito has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation's laws.
The article has provoked a strong reaction among Alito supporters, who disagree that Judge Alito has an "agenda." What we're hoping for is a judge who will faithfully interpret the laws in a judicially conservative manner, which means interpreting laws in a manner that respects the intent of the words of the law, rather than seeking particular outcomes. The Senate Republican Conference recently issued a detailed rebuttal to Henderson and Mintz.
Also, Hugh Hewitt interviewed Henderson about the story. Hugh says Henderson admitted that "other reporters could come to different conclusions than he did." Seems to me that an editorial page is the appropriate place for stories that others could come to different conclusions about. News and opinion should be separate.
Hewitt: "Other reporters attempting to do the same thing could come to radically different conclusions, correct?"
Henderson: "Sure they could. I mean, I would think it would be silly to assume that all reporters would reach the same conclusion about the same thing."
Hmm. They report. They decide.
UPDATE: Knight Ridder has issued a lame counter-rebuttal to the SRC rebuttal linked above. Knight Ridder now says, for example, that Alito wasn't really siding with an African American's employment discrimination claim when Alito wrote that the statute of limitations hadn't expired, in Zubi v. AT&T. Actually, if Alito had sided with the majority in that case, Alito would have been effectively rejecting the claim. Anyway, the main point is this: why does Knight Ridder allow an admittedly subjective story to be circulated as "news"? Hat Tip: How Appealing.
UPDATE #2: Curt Levey of CFJ also has some thoughts about the Knight Ridder story.
Posted in News —
Posted at 9:27pm on Dec. 7, 2005 Vote for Best Law Blog
By AndrewHyman
One of our commenters (Richard) mentions that there's a vote going on for best law blog (i.e. best "Blawg").
Posted in News —
Posted at 9:04pm on Dec. 7, 2005 The Alito Credibility Crisis Escalates (Not)
By AndrewHyman
The internet is abuzz with rumors and accusations that both Sam Alito and President BUSH LIED about whether or not Alitoââ‚â„¢s father was an immigrant from Italy, or whether his father was actually born in New Jersey. Hereââ‚â„¢s what Alito and Bush said:
Bush: ââ‚Å“Samuel Alito Sr. came to this country as an immigrant from Italy in 1914.ââ‚?
Alito: "I wish that my father had lived to see this day. He was an extraordinary man who came to the United States as a young child, and overcame many difficulties and made many sacrifices so that my sister and I would have opportunities that he did not enjoy."
Atrios whines, "Do They Ever Tell The Truth?" They do. In reality, Bush and Alito were telling the truth, and the accusation that they were lying about Sam Sr.'s immigration to the United States is bogus, not to mention petty beyond belief. ââ‚Å“Uncle Bugââ‚? at Daily Kos grudgingly fessed up:
A manifest of alien passengers on the S.S. Ancona sailing from Naples, Italy for the United States (Philadelphia), dated 23 Aug 1914, includes Maria Albani [sic] from Montebello, Italy, and her son Salvatore Alati [sic], age 5 months. Final destination: Trenton, NJ. Looks like George was telling the truth, for a change.
I guess we can wait for the next slime attack. The original accusation has been removed from the Daily Kos site, but the Google cache still exists, including this gem:
Posted in Alito —
Posted at 11:13am on Dec. 6, 2005 Duck and cover
By Irishlaw
E.J. Dionne writes in today's Post that many conservatives are "running from the fight" -- the debate over constitutional interpretation that we all said we wanted:
You would think that Alito and his supporters would welcome a principled discussion of Roe. In fact, they want to change the subject. When Sen. Dianne Feinstein (D-Calif.) asked Alito about that letter seeking a promotion, she said he told her: "First of all, it was different then. . . . I was an advocate seeking a job. It was a political job. And that was 1985."
Dionne also cites White House officials as trying "to minimize the importance of the Roe strategy memo," though he notes a few conservatives who believe that distancing Alito from his written views undermines his credibility. So what's going on?
There is that sense that "evasion" is the best way to be confirmed, and it does seem like the White House is following this strategy to some extent -- which I find frustrating precisely because I would prefer to have the debate about judicial philosophy that would expose Roe and its progeny as nonconstitutional (I think most contributors to this site agree). Evasion has been the strategy for decades; the Alito nomination was supposed to be the challenge to it. As Verity wrote at Southern Appeal last week, "Just say it! . . . Stop the hedging, rationalizing, and discounting of everything Alito has said. Just say it: Roe should be overturned. " I wonder if the continuing inclination to hedge can be blamed on the fact that there are still six weeks for senators and interest groups to spin hard (thanks to the scheduling of the Republican chairman) and some fear that that's enough time to smear the nomination? Well, we shouldn't fear it (Carol has noted accurately, for one thing, that despite the scheduling headache, December is a bad time to focus on a negative campaign). Alito is qualified; he should enough votes. Being evasive is exactly the wrong tactic.
Posted in SCOTUS —
Posted at 7:35pm on Dec. 5, 2005 CFJ Ad
By AndrewHyman
The Committee for Justice has a new ad running, here.
Posted in News —
Posted at 1:23pm on Dec. 4, 2005 Sunday Quote of the Day
By AndrewHyman
Thomas Jefferson to Supreme Court Justice William Johnson, June 12, 1823:
On every question of construction, carry yourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.
That's much wiser than conforming to what someone today (or someone a century ago) might wish the Constitution would mean.
Posted in Alito —
Posted at 6:14am on Dec. 3, 2005 Alito Agreed With O'Connor About Fleeing Felons
By AndrewHyman
Ed Whelan has a post up at Bench Memos discussing the latest episode in the seemingly endless pre-hearing spectacle. Evidently, Alito once expressed the view that shooting a fleeing felon is not unconstitutional. Subsequently, Sandra Day O'Connor agreed with him, but six justices of the U.S. Supreme Court did not. Hence Alito's unqualified? I don't think so.
Posted in Alito —
Posted at 9:43pm on Dec. 2, 2005 How Samuel Alito Can Win More Votes in the Senate
By AndrewHyman
He could say this:
Yes, the Roe v. Wade decision was an act of raw judicial will that has cost millions of sentient human beings their lives. Yes, that decision has diminished democracy and made a mockery of the Constitution. But it's time for everyone to admit that women are entitled to kill their children. Women's liberation means being able to have sex without worrying about pregnancy, and it means wreaking vengenace upon all of those pesky little children who have plagued our existence from time immemorial. If I am confirmed as a Supreme Court justice, I promise to dole out lots of rights to other litigants, too. The right of robbers to rob. The right of wives to beat their disobedient husbands. The right of people named "Chuck" and "Teddy" to run red lights and cut in line whenever they want to. Yes, I'll create whatever rights are necessary in order to win votes from the Senate. If Senators want someone who will shape and mold society, and who will force the majority to absorb the dictates of the minority, then I'm your man.
Expect Chuck Schumer to immediately thereafter issue a press release saying that Schumer never had a litmus test, and feigning surprise that Alito ever felt any pressure on the abortion issue.
Posted in Humor —
Posted at 12:07pm on Dec. 2, 2005 Fried Says Something We Can All Agree About
By AndrewHyman
Democratic Senators continue to harp on Sam Alito's credibility because he didn't report to the Senate every memo he ever wrote. Reagan-era Solicitor General Charles Fried says this about that (as reported by the New York Sun):
"I have never heard of anyone who worked in the solicitor general's office who would list all the cases where they wrote memos," Mr. Fried said. "There are hundreds of these. It's just absurd. It's one of these typical cases, and I'm afraid Senator Schumer is guilty of this, that if you can't get someone on the merits, you bring up some phony lack of candor argument. He should be ashamed of himself, but he is shameless. And you can quote me on that."
Hat Tip: Captain's Quarters. I don't agree with Fried about everything, but he hits the mark here. Schumer is shameless, and you can quote me on that.
UPDATE: Alito has just told Specter that Roe v. Wade wouldn't be "lightly overruled." And, Tim Chapman reports that anti-Alito groups are congregating in the Senate today (I hope they go to Schumer's office and stay there for a few years).
Posted in News —
Posted at 6:30pm on Dec. 1, 2005 Sex Surveys in the Ninth and Third Circuits
By AndrewHyman
As you may recall, a Ninth Circuit decision regarding public school sex surveys caused quite a stir recently. The House of Representatives even condemned the decision, which arose in Palmdale, California. I thought Eugene Volokh was 100% correct to praise that Ninth Circuit decision.
Anyway, Judge Alito and the Third Circuit have just released a very similar opinion, arising out of a public school sex survey in Ridgewood, New Jersey. It's now up to the people and the state of New Jersey to put a stop to intrusive and inappropriate surveys of public school students, if they want to.
Hat Tip: How Appealing.
Posted in Alito —
Posted at 2:12am on Dec. 1, 2005 AP Messes Up Again
By AndrewHyman
The blog Wizbang takes on Associated Press regarding a misleading lede written by AP reporter David Espo. Here's the lede:
As a young government lawyer opposed to abortion rights, Samuel Alito...
Wizbang points out that this is a slanted lede, and it sure is. Alito is portrayed as opposing people's rights. Actually, Alito didn't use his position as a government lawyer to oppose any legislatively established abortion rights, and instead he denied that the Constitution contains such rights. Many pro-abortion liberals have taken the same position.
A commenter at Wizbang adds:
Oh that's just the tip of the iceberg. As a young lawyer Alito was also opposed to murder rights, drunk driving rights, grand larceny rights, and rape rights. The kid was a loose cannon and I don't really think he's gotten any wiser with age!
Chuckle.
Posted in Alito —
Posted at 1:04am on Dec. 1, 2005 Herbert Spencer's <em>Social Statics</em>
By AndrewHyman
On November 11, Judge A. Raymond Randolph of the D.C. Circuit gave a really interesting speech. I think the most interesting point of Randolph's speech was his assertion that the Supreme Court has recently been using the phony doctrine of substantive due process in order to wipe away "victimless crimes." Randolph pointed out that this is exactly what Herbert Spencer was advocating in the nineteenth century. You may remember Spencer from the famous dissent of Justice Holmes in Lochner v. New York.
The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.
Most people usually remember that last sentence, but not the sentence preceding it. Spencer was a British philosopher who supported the ââ‚Å“law of equal liberty" --- that's a tenet of libertarianism according to which a person should be allowed to do as he or she pleases as long as no one else's rights are infringed. Increasingly, it seems that our courts are now implementing Herbert Spencer's philosophy, under the guise of the Due Process Clause.
Wherefore we arrive at the general proposition, that every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man.
Herbert Spencer, Social Statics (London: John Chapman, 1851), pp. 76-78. A good question for nominees would be whether they believe the Fourteenth Amendment enacts any part of Herbert Spencer's Social Statics.
UPDATE: George Will has an op/ed about Judge Randolph's speech, here.
Posted in Analysis and Predictions —
Posted at 10:30pm on Nov. 30, 2005 "Providers"
By AndrewHyman
Nancy Keenan and NARAL are upset with Judge Alito, because he "refers to providers as 'abortionist[s].'"
Perhaps he also refers to fetuses as human beings.
Posted in Alito —
Posted at 5:32pm on Nov. 30, 2005 Alito Memo on Abortion Cases
By AndrewHyman
Associated Press reports about a memo released today that Alito wrote back in 1985 regarding abortion (this is not the 1985 job application thatââ‚â„¢s been frequently quoted over the past few weeks). Also, here's a report about arguments today in the Supreme Court on the same subject.
All of these abortion decisions are, of course, purportedly based upon the following words in the Constitution: "No person shall be deprived of life, liberty, or property without due process of law." Alexander Hamilton explained in 1787 that "the words 'due process' have a precise technical import...." No one disputes that "due process" referred to judicial proceedings that are owed according to the law of the land. Paradoxically, we now have U.S. Supreme Court justices basically saying (for the umpteenth time) that statutes enacted by a state are not the law of the land, because . . . . they're not the law of the land. Repeating this circular rationale doesn't make it correct.
In 1819, the Supreme Court of New Hampshire scoffed at the notion that a right "can be protected from the operation of a law of the land, by a clause in the constitution, declaring that it shall not be taken away, but by the law of the land."
Dartmouth College v. Woodward, 1 N. H. 111, 129 (1817). That supreme court made some sense.
Posted in Alito —
Posted at 1:15pm on Nov. 30, 2005 Judge Alito's Questionnaire is All Filled Out
By AndrewHyman
It's here, courtesy of National Review (there's an essay on judicial activism beginning on page 60).
Posted in Alito —
Posted at 11:38pm on Nov. 29, 2005 A Foreword to a Foreword
By AndrewHyman
Judge Richard Posner has a thought-provoking piece in the current issue of the Harvard Law Review. Posner begins with a bang, by quoting from a previous foreword by John Hart Ely:
The notion that the genuine values of the people can most reliably be discerned by a nondemocratic elite is sometimes referred to in the literature as ââ‚Å“the Fuhrer principle,ââ‚? and indeed it was Adolph Hitler who said that ââ‚Å“[m]y pride is that I know no statesman in the world who with greater right than I can say he is the representative of his people.ââ‚? We know, however, that this is not an attitude limited to rightwing elites. ââ‚Å“The Soviet definitionââ‚? of democracy, as H.B. Mayo has written, also involves the ââ‚Å“ancient errorââ‚? of assuming that ââ‚Å“the wishes of the people can be ascertained more accurately by some mysterious methods of intuition open to an elite rather than by allowing people to discuss and vote and decide freely.ââ‚? Apparently moderates are not immune either.
This quote seems particularly fitting when you consider that, tomorrow, Supreme Court justices will attempt to discern whether the genuine values of the American people permit parents to insist upon being notified when their minor children get surgery. Anyway, Judge Posner's piece is recommended reading, and full of interesting stuff. He thinks the Constitution gives the Supreme Court virtually unlimited discretion, but thinks the Court should be nice and not flaunt that discretion. Perhaps a better rule would be for the Court to not overturn a statute unless the statute clearly conflicts with the text of the Constitution (i.e. the Court should strive to uphold the validity of both).
A long time ago, Supreme Court Justice Bushrod Washington explained as follows:
It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.
Justice Washington was on the right track here, but seems to have missed an important factor. A decent respect for THE PEOPLE (regardless of respect or disrespect for the legislature) should lead the Supreme Court to presume in favor of the constitutionality of legislation. When the Court strikes down legislation it's not just slapping a legislature, but is also depriving the electorate of any future ability to correct the legislature and decide the issues themselves.
Posted in Analysis and Predictions —
Posted at 10:39pm on Nov. 29, 2005 Out of the Mainstream -- and Aware of It
By Carol Platt Liebau
This piece discusses the difficulties confronted by left-wing activist groups trying to prevent Judge Alito from being confirmed to the Supreme Court.
Of course, Arlen Specter's decision to postpone the Judiciary Committee hearings until January didn't help, insofar as it gives the groups more time to smear Judge Alito and distort his record. Even so, it doesn't seem that the groups are getting much traction -- and December is a bad time to try to focus widespread attention on a negative campaign.
What's interesting about the linked piece is that Minority Leader Harry Reid, along with Chuck Schumer (who takes the lead in savaging Republican nominees because of his safe Senate seat and his intellectual vanity) have implicitly acknowledged that the Democratic efforts to stymie the Alito nomination have a potentially damaging fallout for their fellow party members:
In a private session, Reid and Schumer urged the groups to show restraint when lobbying Democrats from states that Bush won in 2004 â₆senators from Nebraska, Arkansas, the Dakotas and elsewhere who probably will be the most tempted to support the appointment.
In other words, Reid and Schumer know their positions on these nominees is out of the mainstream -- and they're not willing to put principle above political expediency. But we already knew that, didn't we?
In any case, the Democrats realize that the issue of judges cuts in the Republicans' favor. Now who will inform the Republicans like Arlen Specter, who seem determined to "neutralize" the issue through squishy deference to the Democrats?
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 2:23pm on Nov. 29, 2005 Piece of Cake
By Quin
As I mentioned would be the case several weeks ago, I have been absent from new postings here for a while -- but I didn't want y'all to think I've forgotten you! Anyway, for what it's worth, here's a ten-day-old editorial we at the Mobile Register ran that I meant to post back then, which I think y'all will like. It's on the Vanguard case, and if I do say somyself, it contains a rather, uh, sweet analogy! If you are looking for prcise and erudite legal citations here, forget it. But if you want a simple and basically accurate thumbnail sketch of what it's all about, read on!
Posted in Uncategorized —
Posted at 5:09am on Nov. 29, 2005 A Fine Replacement
By AndrewHyman
President Bush in Phoenix on November 28:
Judge Roberts is going to make a great Chief of the Supreme Court. And Sam Alito is going to make a really fine replacement for Arizonan, Sandra Day O'Connor. And Jon Kyl is going to be one of the leaders in making sure that Sam Alito gets confirmed in the United States Senate. (Applause.) And if the people of this state want to make sure that we've got judges on the bench who strictly interpret the Constitution and not legislate from the bench, they need to return Jon Kyl to the United States Senate. (Applause.)
More applause.
Posted in News —
Posted at 6:47pm on Nov. 28, 2005 Equal Justice UNDER Law, Not Over It
By AndrewHyman
As many of you are aware, a big chunk of Vermont marble came loose from the Supreme Court today, and crashed to the ground. Fortunately, no one was injured. The place where the marble came loose is shown in the picture at right. Click on the image for more details about this crash.
Coincidentally, the fracture occurred directly above the word ââ‚Å“UNDER.ââ‚? As mentioned previously at this site, the founders of this country intended the courts to do justice under law, and not over it. Thomas Jefferson --- the author of the Declaration of Independence --- explained (in 1785) the general rule: absent some specific constitutional limitation, courts of equity ââ‚Å“cannot interpose in any case against the express letter and intention of the legislature. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged.ââ‚?
The chunk came loose between two human figures. On the left is an allegorical figure of ââ‚Å“Authority,ââ‚? according to the Supreme Courtââ‚â„¢s website. On the right is none other than Chief Justice Charles Evans Hughes, who (not coincidentally) headed the U.S. Supreme Court Building Commission. Hughes famously (or infamously) said ââ‚Å“the Constitution is what the judges say it is.ââ‚?
Posted in Analysis and Predictions —
Posted at 2:44pm on Nov. 28, 2005 On Alito and Roe
By Carol Platt Liebau
In today's Wall Street Journal, Roger Pilon offers the most succinct explanation yet why it would be wrong to force Judge Alito to admit either (1) that he erred in his 1985 memo expressing anti-Roe views or (2) that he believes the power of precedent outweighs the importance of interpreting the Constitution correctly as an implicit condition of his being confirmed.
But it should be clear that were Judge Alito to answer yes or no to [whether he would apply the principles of stare decisis to Roe v. Wade cases], he would in effect be revealing his hand on a wide array of questions potentially before the court, including Roe. The effect, insofar as his answer would correlate with a Senate decision to confirm or not to confirm, would be to decide those cases politically, not legally, which is why he should refuse to answer that question.
In short, requiring Judge Alito to answer those questions would be to turn the judicial nomination hearing into nothing more than a political exercise in which future judicial votes are traded for present Senate votes. It would be an unprecedented reworking of the relationship between the judicial branch and the Senate -- and would completely undermine the independence of the judiciary. Which is why even liberal judges and law professors should speak out against any effort to pin Alito down on Roe issues. But on that, I'm not holding my breath.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 11:59pm on Nov. 27, 2005 Striking Jurors Based Upon Their Race
By AndrewHyman
This post is about Judge Alito's entirely reasonable and respectable dissent in Riley v. Taylor. The Boston Globe has an editorial today completely distorting Alito's dissent in that case.
In 1982, a jury in a Delaware state court found James Riley guilty of felony murder in the killing of a liquor store owner, and gave him the death penalty. In 1991, Riley filed a petition in federal court, then the federal district court denied the petition, and eventually (in 1998) Riley appealed to the Third Circuit.
Riley raised two main issues. First, he alleged that the prosecution had unlawfully excluded three African American jurors (Nichols, Beecher, and McGuire). Second, he alleged that the prosecutor's closing argument was defective --- but I won't elaborate on this second point, because the present controversy relates to exclusion of the three jurors.
Judge Alito wrote the opinion for the three-judge panel of the Third Circuit, ruling against Riley. The entire Third Circuit subsequently granted rehearing, and the full 12-judge appeals court decided in favor of Riley, while allowing the state to retry Riley for felony murder. Judge Alito wrote a dissent to the full court's decision.
The opinion of the full (i.e. "en banc") court was written by Judge Sloviter, and held that the "peremptory challenges" used by prosecutors to exclude McGuire violated the Equal Protection Clause (the court did not criticize the peremptory challenge to Beecher). Judge Sloviter's opinion was joined by Judges Mansmann, Nygaard, Roth, McKee and Ambro on the peremptory challenge issue. Judge Alito's dissent was joined by Judges Scirica, Barry, Fuentes, and Stapleton on the peremptory challenge issue. Judge Becker sided with the majority with regard to McGuire, but sided with Alito regarding Nichols. So, the appeals court agreed with the district court 12-0 that the peremptory challenge to Beecher was constitutional, agreed 6-6 with the district court that the peremptory challenge to Nichols was constitutional, and disagreed with the district court 7-5 about the constitutionality of the peremptory challenge to McGuire.
It's obvious --- without even getting into the details of the case --- that Judge Alito was not some lone cowboy in this case. The Third Circuit was closely divided, and that's what often happens when there are valid arguments on both sides.
The main gripe against Alito in this case seems to be that, in his en banc dissent, he pointed out that the peremptory challenges of Nichols and McGuire could have been due to factors other than race, and that consequently race may have been as irrelevant to the peremptory challenges as a variety of other irrelevant factors, such as "left-handedness." Here's what Alito wrote:
Statistics can be very revealing -- and also terribly misleading in the hands of "an amateur with a pocket calculator." The majority's simplistic analysis treats the prospective jurors who were peremptorily challenged as if they had no relevant characteristics other than race, as if they were in effect black and white marbles in a jar from which the lawyers drew. In reality, however, these individuals had many other characteristics, and without taking those variables into account, it is simply not possible to determine whether the prosecution's strikes were based on race or something else.
The dangers in the majority's approach can be easily illustrated. Suppose we asked our "amateur with a pocket calculator" whether the American people take right- or left-handedness into account in choosing their Presidents. Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections. Our "amateur with a calculator" would conclude that "there is little chance of randomly selecting" left-handers in five out of six presidential elections. But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?
And here's the majority's indignant response:
Further, the Dissent's attempt to analogize the statistical evidence of the use of peremptory challenges to strike black jurors to the percent of left-handed presidents requires some comment. The dissent has overlooked the obvious fact that there is no provision in the Constitution that protects persons from discrimination based on whether they are right-handed or left handed. To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants, which was the raison d'etre of the Batson decision.
Surely, this is a tempest in a teapot. Alito obviously wasn't trivializing racism, or putting racism in the same category as discrimination based upon left-handedness. In reality, the full, 12-judge court unanimously agreed that the peremptory challenge to Beecher may have been no more about his race than about his left-handedness. It would be amazing if a majority of the Third Circuit actually believes voters have discriminated against presidential candidates based upon left-handedness!
The full cite for the case is Riley v. Taylor, 237 F.3d 300 (3d Cir. 2001), vacated and rehââ‚â„¢g en banc granted, 237 F.3d 348 (3d Cir. 2001), revââ‚â„¢d, 277 F.3d 261 (3d Cir. 2001).
UPDATE: It's noteworthy that the exchange quoted above was partly prompted by this remark in the majority opinion: "An amateur with a pocket calculator can calculate the number of blacks that would have served had the State used its strikes in a racially proportionate manner."
Posted in Analysis and Predictions —
Posted at 10:36pm on Nov. 27, 2005 More on Alito and CAP
By Carol Platt Liebau
Today, the New York Times runs the obligatory story about Judge Alito's membership in Concerned Alumni of Princeton (CAP).
As I noted here, the portrait of CAP that Judge Alito's opponents are trying to paint differs significantly with my (limited) recollection of the group. Indeed, as of 1985 (when I enrolled at Princeton), if there had been any kind of right-wing force associated with the University that had opposed minority and female presence on campus, I'm confident I'd have remembered -- not only because I was one of the co-eds, but also because my face would have burned with shame for my supposed fellow "conservatives."
What the linked story doesn't point out is that there were plenty of left wing forces on campus at the time (some within the university administration), and that CAP would have served as a useful counterbalance. Other universities have had their own equivalents -- and at present, I know of concerned conservative alumni both at Harvard and at Dartmouth (where they actually succeeded in seating some conservative alumni on the Board of Trustees).
Only in the world of the left wing interest groups, the MSM and the university would such groups be seen as inherently aberrational and illegitimate.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 4:20pm on Nov. 27, 2005 Not Specter
By krempasky
Hugh Hewitt writes in his World Magazine column on Arlen's miserable performance as Judiciary Chair:
Many conservatives opposed Mr. Specter, but his promises persuaded his Republican Caucus colleagues that he could be trusted to chair the committee in a manner in keeping with their goals and the promises he had made. Now, his word seems worthless.
Well, for lack of a better word - duh. For your Sunday trivia question, does anyone remember how ConfirmThem got started? I'll give you one hint.
We were opposed in that effort by good friends on the right - and while I'm loathe to reopen healing wounds - it bears mentioning that in large measure, it's the same group that beat us up over our lukewarm response to Harriet Miers.
Posted in Judiciary Committee —
Posted at 7:46pm on Nov. 23, 2005 HAPPY THANKSGIVING!
By AndrewHyman
This is an open thread.
Posted in Open Threads —
Posted at 2:34pm on Nov. 23, 2005 Chertoff was Wrong
By AndrewHyman
In Doe v. Groody, Mike Chertoff was in the majority, and Sam Alito was in the dissent. The central issues were whether a search of a drug suspect's wife and daughter was constitutional, and whether the police could be sued for damages regardless of whether the search was constitutional (i.e. whether it would have been "clear to a reasonable officer that his conduct was unlawful"). Chertoff and Alito disagreed on both points. Although it's a close question, I think Chertoff was wrong, at least about the second point regarding the liability of the officers.
American law has traditionally followed a one document rule for search warrants, under the Fourth Amendment:
To incorporate documents into a search warrant, the documents must in effect constitute one document; federal courts generally agree that this means that the document must be physically connected and the warrant must expressly refer to the attached documents. H. Eggers, 61 Military Law Review (1973).
In Doe v. Groody, it's undisputed that the warrant specifically referred to the attached affidavit, and the affidavit specifically said that "the search should also include all occupants of the residence." The affidavit and the warrant basically amounted to one document, or at least the police officers in Doe v. Groody could have reasonably thought so. It's pretty obvious that a reasonable police officer could have believed that the search wasn't clearly unlawful, at the time the search was conducted. It's also relevant that exempting drug dealers' children from searches would absurdly promote turning children into drug mules. I hope Judge Chertoff (now Secretary of Homeland Security) would consider making a statement expressing second thoughts about his opinion in Doe v. Groody, or at least emphasizing that it was a close case regarding officer liability.
UPDATE: Incidentally, Alito was correct about Supreme Court precedent. The Supreme Court's Groh decision had nothing to do with a document that had been incorporated into a search warrant, and therefore the majority decision in Groody isn't really helped by Groh.
UPDATE #2: Here's a Nov. 24 AP article about the case. And here's a Nov. 24 LA Times article about the case.
UPDATE #3: See here for the actual words of the search warrant that referenced the affidavit.
UPDATE #4: Patterico has a somewhat different view from mine regarding Doe v. Groody. David Reinhard had a good op/ed about this case in the Oregonian.
UPDATE #5: Senator John Cornyn wrote an excellent letter to USA Today on this subject, published 3 January 2006.
Posted in Analysis and Predictions —
Posted at 12:31pm on Nov. 23, 2005 Alito Update
By AndrewHyman
The NYT has the latest on Alito, including the reapportionment flap, the rejected Fox News ad, and Senator Leahy's demand that Alito return the SJC questionnaire before the December 1 deadline. All these things were mentioned in recent confirmthem posts.
Posted in News —
Posted at 12:43am on Nov. 23, 2005 Open Thread
By AndrewHyman
Feel free to comment about judicial confirmations, if you like.
FYI, over at the right-hand-side of our page, a few new links are titled "Alito on" this and that. Further suggested links would be welcome.
Posted in Open Threads —
Posted at 1:45am on Nov. 22, 2005 Ralph Neas on the Alito Nomination
By AndrewHyman
PFAW President Ralph Neas has a letter in USA Today today. Here's a specimen:
What is important isn't whether Alito is "dweeby" but whether Americans can count on him to uphold their rights and freedoms if he is confirmed.
Also, what is important isn't whether Neas is an "extremist pinhead" but whether Americans can count on him to tell the truth.
UPDATE: Associated Press reports that the truthfulness of a PFAW ad is being challenged. The ad emphasizes Alito's dissent in Doe v. Groody, and implies that Alito's dissent was rejected by the majority because the dissent was "extreme" --- actually Alito's dissent was rejected due to a technical difference of opinion about whether an affidavit had been incorporated into a search warrant. Back in October, John Hinderaker analyzed this case in detail, over at Power Line, and Patterico followed up with further analysis that really gets to the heart of the matter.
Posted in Analysis and Predictions —
Posted at 9:40pm on Nov. 21, 2005 Agitation
By AndrewHyman
Hugh Hewitt is agitating for more speed in the Judiciary Committee. Here's what Senator Specter promised on November 10, 2004:
I am committed, in word and deed, to prompt action by the Judiciary Committee. Last April, I introduced Senate Resolution 327, a protocol to establish prompt action on all judicial nominees. Specifically, my protocol provides that all nominees will have a Judiciary Committee hearing within 30 days of nomination, a Judiciary Committee vote within 30 days of the hearing, and a floor vote 30 days later.
The Alito nomination was announced on October 31 and sent to the Senate on November 10 but he won't get a hearing until January 9. Brett Kavanaugh, Terrence Boyle, William Haynes, and Henry Saad were nominated February 14 and have yet to get a hearing vote in the Judiciary Committee. James Payne was nominated September 29 and also has yet to get a hearing.
Meanwhile, Radley Balko of "The Agitator" blog is agitating in an excellent Fox News column for more federalism. Stuart Taylor has a very interesting column too, in the National Journal, titled "Alito And His Critics: Who Is Outside The Mainstream?"
UPDATE: Thanks to commenter "BoBo" for the corrections. Of course, Boyle was already approved by the SJC, and Kavanaugh, Haynes, and Saad have had hearings but no votes in the SJC. By the way, Hugh comes in for a bit of criticism here at this link, which is a really interesting link for other reasons too.
UPDATE #2: Senator Leahy wrote to Judge Alito on November 22 requesting that Alito hurry up and return the Senate's questionnaire, even though it's not due until December 1.
Posted in Analysis and Predictions —
Posted at 10:56am on Nov. 21, 2005 Novak on the Strip Search Case
By AndrewHyman
Robert Novak has written an op/ed about the strip search case, Doe v. Groody, and about how that case has become a major focus of duelling advertisements. (Note: this kind of politicization is what inevitably happens when the Supreme Court decides to strike down whatever statutes five justices feel are most unduly burdensome to the most sympathetic plaintiffs.) Anyway, Novak's column is here.
UPDATE: Speaking of Judge Alito's alleged cruelty to little girls, some anti-Alito groups are accusing him of associating with people who opposed making Princeton University coeducational. At the CFJ blog, Curt Levey mentions that Hillary Clinton's alma mater --- Wellesley --- still excludes men to this day.
UPDATE #2: Regarding the Doe v. Groody case, the anti-Alito blog "Think Progress" insists that patting down a suspect's pockets is somehow equivalent to a manual strip search, and thus (they say) Novak's column is inaccurate. Think Progress also claims to be part of a "nonpartisan organization."
Posted in Alito —
Posted at 6:19pm on Nov. 20, 2005 The Emerging Dem Strategy on Alito?
By Carol Platt Liebau
This morning, Joe Biden spoke about the Alito nomination -- and hinted that a filibuster was a real possibility.
If you check the transcripts, it's notable that Biden backs away from basing his Alito criticism on Alito's presumed opposition to Roe. Instead, Biden focuses on Alito's supposed misgivings about reapportionment.
Could it be that Biden -- and perhaps Democrats generally -- have realized that their "scare tactics" accusing Republicans of wanting to overturn Roe v. Wade have become of diminished effectiveness?
That may be why Biden instead is trying to raise quasi-racial issues, asking about Alito's commitment to the concept of "one man, one vote." Are the Democrats above a little misleading race baiting? I fear not.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 3:39pm on Nov. 20, 2005 How Roe and Casey Differ From Miranda and Dickerson
By AndrewHyman
It seems that various pundits and scholars are asserting that Chief Justice Rehnquist's decision (in Dickerson v. United States) to uphold Miranda somehow means that Roe should also be upheld, even though wrongly decided as an initial matter. This is a false comparison.
Dickerson was decided on June 26, 2000. Two days later, the Court decided Stenberg v. Carhart, in which Rehnquist wrote: "I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and continue to believe that case is wrongly decided." So, to imply that Dickerson somehow shows Rehnquist would have upheld Roe and Casey is simply false.
Moreover, these two lines of cases are very different. It would be extremely naive to say that just because stare decisis was invoked in one constitutional case, therefore it should be invoked in all constitutional cases. If that were true, then Plessy v. Ferguson, Swift v. Tyson, Bowers v. Hardwick, and scores of other overturned opinions would still be on the books. [UPDATE: An alert commenter notes that Swift primarily involved statutory interpretation, which means it had even more stare decisis protection than a constitutional case has.]
The main question in Miranda and Dickerson was how to best protect a person's Fifth Amendment rights, especially the part of the Fifth Amendment that says no one shall be compelled to be a witness against himself. Rehnquist wrote in Dickerson that the best way to accomplish that goal would be to uphold Miranda:
The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his ââ‚Å“rights,ââ‚? may nonetheless be excluded and a guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test which §3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner.
In other words, Rehnquist believed that if he went along with Scalia, then that would undermine Fifth Amendment rights. Obviously, Rehnquist did not view Miranda as having been clearly erroneous. Rehnquist also wrote for the Court in Dickerson that, "the Constitution does not require police to administer the particular Miranda warnings..." Instead, all Rehnquist and the Court required in Dickerson was "a procedure that is effective in securing Fifth Amendment rights."
In my opinion, the holding in Dickerson would be satisfied by a procedure that allows police to establish beyond any doubt that a non-Mirandized confession was nevertheless voluntary. That way, if the Miranda warnings aren't given, at least the police would have some small chance of being able to prove by clear and convincing evidence that the Fifth Amendment was not violated.
To compare any of this Miranda stuff to Roe and Casey is just absurd. The differences are legion, and it's regrettable that anyone would make such a comparison. I'm not going to belabor the point, except to say that the legitimacy of Roe's central holding is NOT widely accepted in our legal culture or in the wider culture. And a matter of life and death is emphatically not the kind of matter that is better settled than settled right. And the Court in Roe and Casey did not give legislatures the flexibility to come up with a better rule, as the Court did in Miranda and Dickerson. And Roe was clearly erroneous as an initial matter, whereas Miranda was not.
Perhaps the doctrine of stare decisis will be misused to suffocate any further opposition to Roe v. Wade. Then the tragic abuse of our Constitution will be complete.
Posted in Analysis and Predictions —
Posted at 3:11am on Nov. 20, 2005 Coburn Predicts Filibuster
By AndrewHyman
Hugh Hewitt interviewed the junior Senator from Oklahoma on November 15:
HH: All right. Now, a quick question before I let you go. Do you see any trouble with Justice Alito's confirmation?
TC: Oh, I think it'll get filibustered, ultimately. And I think we'll have the Constitutional option, and I think it'll pass, and he will become the Supreme Court justice.
That seems like a strong possibility. Hugh also spoke with Arizona Senator John Kyl on November 18. Kyl said that he's been talking with Senator Specter about getting votes on long-delayed circuit court nominees like Brett Kavanaugh, Terrance Boyle, Gerry Myers, Henry Saad, and William Haynes:
I said look, there's a bunch of other stuff we have to do, too, including getting a bunch of people confirmed for judgeships. And he [Specter] said yes, we do need to do that. So yes, we need to do it. But we're going into a holiday period here, so it's not going to happen real soon.
More info about those five appeals court nominees is over at the right side of our home page, under the category "Circuit Nominees."
UPDATE [11/20/2005]: Sen. Biden said on Fox News Sunday that the chances of an Alito filibuster have gone up, due to Alito's remarks in 1985 criticizing the Warren Court's reapportionment decisions. FYI, a report by Douglas Laycock explains how people like Sam Alito and Michael McConnell can have qualms about the reapportionment decisions, without opposing one-adult-one-vote. Professor Bainbridge offers a similar explanation. Note that Biden is from Delaware, which is highly over-represented in the Senate.
Posted in Alito —
Posted at 1:32am on Nov. 19, 2005 William F. Buckley Mistakenly Endorses Concept of "Superprecedents"
By AndrewHyman
In an article titled ââ‚Å“Alitoââ‚â„¢s Ordeal,ââ‚? William F. Buckley writes: ââ‚Å“Roe v. Wade is indeed what they now call a ââ‚Ëœsuperprecedent.ââ‚â„¢ It is not going to be repealed.ââ‚? But why would Roe v. Wade be more sacred than hundreds of other overturned cases (e.g. Plessy v. Ferguson, Swift v. Tyson, and Bowers v. Hardwick)? Because women have come to rely upon it?
72% of women in the United States oppose the central holding of Roe v. Wade. Thatââ‚â„¢s right, 72%. According to the Supreme Court, ââ‚Å“its central holding [is] that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.ââ‚? 72% of women say that abortion should generally be illegal months before viability.
By acknowledging that Roe is some kind of ââ‚Å“superprecedent,ââ‚? Mr. Buckley is endorsing the Courtââ‚â„¢s tragic 5-4 opinion in Planned Parenthood v. Casey. Professor Earl Maltz correctly wrote the following about that Casey opinion:
In essence, the opinion asserts that if one side can take control of the Court on an issue of major national importance, it can not only use the Constitution to bind other branches of government to its position, but also have that position protected from later judicial action by a kind of super-stare decisis.
If Mr. Buckley believes that women have developed some kind of insatiable reliance upon the availability of abortion, then why not let the Court decide that all women currently alive shall enjoy the privilege described in Roe v. Wade, while deciding that future generations of women shall not? Or the Court could simply acknowledge the possibility that unborn children have a countervailing reliance interest --- in that they rely upon adults not to rip them apart. And let's not forget that there is the reliance interest of the American people, who have come to expect that laws enacted by our elected representatives will be struck down only for violating the Constitution, and not for violating some extra-constitutional piece of baloney.
If Attorney General Gonzales can acknowledge that the Supreme Court isnââ‚â„¢t bound by Roe, then why canââ‚â„¢t William F. Buckley acknowledge that? And hereââ‚â„¢s what Justice Louis Brandeis had to say on the subject:
Stare decisis is not, like the rule of res judicata, a universal inexorable command....Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error so fruitful in the physical sciences, is appropriate also in the judicial function.
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Justice Brandeis dissenting). For more about the doctrine of stare decisis, UVA law professor Caleb Nelson wrote an excellent law review article on the subject.
UPDATE [Nov. 19, 2005]: Jeffrey Rosen wrote an article about superprecedents earlier this year, and here's a clip of the article which is titled "So, Do You Believe in 'Superprecedent'?":
[M]any liberal scholars ... concede that Roe and Casey may not qualify as a superprecedent, because the abortion decisions continue to be hotly contested. "To me, a bedrock precedent commands a kind of legal and social consensus that I don't think is true of Roe," Mr. [Daniel] Farber said. Mr. [Michael] Gerhardt agreed. "I think it's hard to argue that Roe is a superprecedent," he said. "Roe has been opposed by three presidents and probably a majority of the Senate right now."
Terry Eastland also had an interesting piece in the Weekly Standard, titled "The Specter of Superprecedents," and here's some of it:
Roberts himself hasn't opined on super-stare decisis, which operates to protect only liberal precedents and indeed maybe only Roe. If he's asked about the concept, he would do well to tell the committee (with his usual wry humor) that stare decisis presents enough issues without having to supersize it. Meanwhile, the Bush administration has plainly not accepted the idea of Roe as a superprecedent. Attorney General Alberto Gonzales told the Associated Press some weeks ago that the Court isn't obligated to follow a previous decision "if you believe it's wrong." The Court is at least two votes away from having a majority that might overrule Roe. If Roberts provides one of those votes, perhaps he'll write the opinion responding to the Casey joint opinion--and include a footnote summarily dispatching this notion of a superprecedent.
It's just wrong for Buckley to go around saying that Roe is a superprecedent and therefore won't be overturned.
Posted in Analysis and Predictions —
Posted at 7:39pm on Nov. 18, 2005 The New Attack on Alito
By Carol Platt Liebau
The same Daily Princetonian reporter that was responsible for the Walter Murphy debacle now reports that Sam Alito was, at one time, a member of Concerned Alumni of Princeton (CAP) (thanks to Andrew for the tip). GASP!
Here's the piece. And here's how it tries to characterize CAP:
Interviews with several alumni who were students in the 1970s paint a picture of Concerned Alumni of Princeton (CAP) as a far-right organization funded by conservative alumni committed to turning back the clock on coeducation at the University.
Give me a break. I was at Princeton from 1985 until 1989, and I never heard anything about anyone trying to "turn back the clock on coeducation." If CAP had any bearing on coeducational policy at all, it was with regard to whether single-sex eating clubs (private institutions catering to Princeton students) should be forced to admit women. Whatever one's views on that, there was a good legal argument to be made for freedom of association (and that case was made in a well-written note in Volume 104 of The Harvard Law Review). (Note also that the "Sally Franks" who's quoted in the piece was the feminist activist who sued the all-male eating clubs; asking her about CAP would be like asking the Pope for his comments on NARAL).
As for the Prospect magazine that's referenced with bated breath in the piece, it was run (at least during 1985, before it was defunct) by Laura Ingraham and Dinesh D'Souza, I believe.
In short, members of CAP included people like Terry Eastland, publisher of The Weekly Standard and Fox legal analyst Judge Andrew Napolitano. Note to my young friends at the Prince: In the real world, we call them "mainstream conservatives."
To the extent its members are caricatured as being scary right wing weirdos -- well, more than anything, maybe that tells you about the monolithic liberal mindsets of those doing the accusing.
Posted in Analysis and Predictions —
Posted at 1:48pm on Nov. 18, 2005 Explaining How It Works
By Carol Platt Liebau
Howard Fineman indulges in some heavy breathing about how 1985 documents (wherein Judge Alito expressed doubt about Roe v. Wade) could cause potential political problems for Republicans and Democrats alike.
He notes that it's bad for Republicans to look "beholden" to their base (at least sometimes, as he adds), and for Democrats to look like culturally clueless pro-abortion zealots. But there are interesting numbers in his piece:
While voters tend to identify themselves as ââ‚Å“pro-choice,ââ‚? by a 57-34 percent majority, they are far from supporting abortion under any circumstances, and strong majorities are quite willing to support the kinds of procedural restrictions that drive pro-choice purists crazy. . . .
Democrats (and the rest of the country) strongly support certain hedges around abortion rights: parental consent for teenagers (68 percent ââ‚Å“yesââ‚? for Democrats, 71 percent in the country as a whole); parental notification (73 and 78 percent respectively); counseling on the dangers of abortion (78 and 81 percent); notification of the husband (64 and 67 percent); 24-hour waiting period (67 and 71).
For Republicans, that's actually good news -- although Fineman, of course, wouldn't say so. But they need to make sure that the American people understand how our constitutional system works (which, thanks to too many dumbed-down public schools, many don't).
The message should be this: If Roe v. Wade is struck down, all that means to the American people is that they'll be able to decide what abortion restrictions are acceptable, and which aren't. In contrast, the Democrats want nine unelected justices to decide which restrictions should be put in place and which shouldn't.
In the end: Republicans trust you, the people. Democrats don't. Simple as that.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 4:10am on Nov. 18, 2005 A Question About Polls
By AndrewHyman
I've got a question for our confirmthem commenters. It seems like every poll about Roe v. Wade has always ignored the fact that overturning that decision wouldn't necessarily make abortion illegal. Do you know if any poll has EVER asked anything like the following?
How would you feel if the US Supreme Court overturns the Roe v. Wade decision, assuming that abortion subsequently remains legal in your state; would you be pleased with the US Supreme Court, disappointed, neutral, or unsure?
I'll update this post if anyone can discover whether such a poll has ever been taken. Another interesting poll question would be: "Do you think that Supreme Court justices ought to vote against overturning Roe v. Wade even though they're certain that Roe v. Wade misinterpreted the Constitution?" And here's another: "Do you think abortion should generally be legal more than two months after conception, at which time hands, feet, head, organs, and brain are all in place, the heart has been beating for a month already, and even fingerprints can be detected?" IMHO, polling on this issue has been abysmal, and all sides are to blame.
Posted in Analysis and Predictions —
Posted at 8:18pm on Nov. 17, 2005 The Ad Wars
By AndrewHyman
You can watch Progress for America's pro-Alito ad here, and the Committee for Justice is running another pro-Alito ad that you can see here. A coalition of lefty groups have an anti-Alito ad that you can see here.
Ann Althouse is not pleased with the Committee for Justice ad. She has a post up titled, "What a horrendous pro-Alito ad!" in which she says this:
I support Alito, but I am disgusted by this kind of argument in favor of him. Alito is a judge, not a political candidate. This is very similar to the way the White House presented Harriet Miers, as a social conservative who would vote for outcomes that would please social conservatives. The Alito nomination corrected the mistake that was made with Miers. He's a well-qualified, experienced judge who appears to have a sound judicial temperament. Don't try to help him by making it sound as though he's not.
I'd have to agree that the PFA ad is better than the CFJ ad. The lefty ad comes in a very distant third.
UPDATE: CFJ is also out with a very informative 27-page report defending Alito.
UPDATE #2: Curt Levey of CFJ responds to Althouse, and so does Ramesh Ponnuru.
Posted in Alito —
Posted at 10:04am on Nov. 17, 2005 Ben Nelson op/ed: Alito Deserves Up-or-Down Vote
By Marshall Manson
I wanted to make sure everyone saw this op/ed, written by Sen. Ben Nelson, that appeared in Sudnay's Omaha paper. Sen. Nelson's commitment to a fair up-or-down vote is all the more important now that some Democrats wants to raise the specter of a filibuster.
Posted in Alito —
Posted at 4:44am on Nov. 17, 2005 Kennedy Suspects Alito of Opposing Civil Rights
By AndrewHyman
The NY Times reports:
Mr. Kennedy expressed concern that in his 1985 memorandum Judge Alito had cited as a major influence Barry Goldwater's 1964 campaign, which Mr. Kennedy said "featured strong opposition to civil rights."
Yup, they're going back 41 years, for mud to throw at Judge Alito, who is 55 years old. Perhaps Hillary Clinton won't be joining in:
Her conservative leanings date back to her days as a "Goldwater Girl," a group of young women who campaigned for right-wing presidential nominee and Arizona Sen. Barry Goldwater.
Senator Clinton has something in common with Justice O'Connor: "In 1964, [O'Connor] served as a precinct captain for Barry Goldwater, who remained a close friend until his death."
Just for the record, Goldwater was no racist:
Goldwater had always been a strong supporter of racial equality and supported the Eisenhower civil-rights bills of 1957 and 1960 that strengthened voting rights for African Americans. As Lee Edwards noted in The Conservative Revolution: "As chief of staff of the Arizona National Guard he [Goldwater] had pushed for desegregation of the guard two years before President Truman desegregated the U.S. armed forces." Goldwater stated that workforce discrimination was "morally wrong," but worried that in the future the federal government might "require people to discriminate on the basis of color or race or religion" and, thus, in the end, opposed the [1964 civil rights] bill.
I suspect that Senator Goldwater would be none too pleased with the way Democrats are nowadays abusing the confirmation process.
Posted in Alito —
Posted at 2:51am on Nov. 17, 2005 With All Due Respect to Feddie :-)
By AndrewHyman
I do not support any "ink blot" interpretation of the Ninth Amendment, as Feddie suggested I do. The right to carry handguns near schools throughout the fifty states is a concrete example of a right protected by the Ninth Amendment against federal infringement. Congress cannot argue that the right can be infringed by pointing out that the right is nowhere enumerated in the Constitution. Where's the inkblot?
According to the Ninth Amendment, just because a right isnââ‚â„¢t enumerated, that doesnââ‚â„¢t automatically mean the right isn't protected. But it doesnââ‚â„¢t automatically mean the right is protected either.
As best understood, the Ninth Amendment is a neutral statement that prevents misinterpretation of the first eight amendments. There is no historical evidence to prove that the Ninth Amendment was meant to shrink or make exceptions to the powers that had been granted in the original Constitution. Instead, the main purpose of the Ninth Amendment was to prevent those powers from being expanded by misinterpretation of the first eight amendments. The original Constitution delegated certain powers, ââ‚Å“the great residuum being the rights of the peopleââ‚? (thatââ‚â„¢s a quote from Madisonââ‚â„¢s speech introducing the Bill of Rights). The main goal of the Ninth Amendment was to safeguard that great residuum --- NOT to carve out exceptions from the enumerated powers.
To put it another way, the enumeration of rights cannot be used to deny or disparage other rights, but the enumeration of powers certainly can be used for that purpose.
Here's James Madison laying it out pretty clearly in his speech introducing the Bill of Rights in Congress:
It has been said that in the federal government [enumerated rights] are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but .... even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent.... It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.
No one disputed Madison's explanation. The Ninth Amendment was primarily intended to secure the great residuum of rights which had already been safeguarded by the original Constitution. "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." United Public Workers v. Mitchell, 330 U.S. 75, 96 (1947).
I should add that Madison's concerns were well known to the public. Hamilton had spelled them out in Federalist 84:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Those were the concerns that led to the Ninth Amendment.
UPDATE: More discussion in this thread.
Posted in Analysis and Predictions —
Posted at 1:40am on Nov. 17, 2005 With all due respect
By feddie
I think both Professor Volokh and Andrew are quite wrong in asserting that the Constitution does not recognize a parent's fundamental right to raise a child as he/she sees fit. The right to "familial relations" is a natural-law right that was codified into the positive law by the Constitution vis-a-vis the Ninth Amendment. You can read more about my views on the Ninth Amendment here.
Needless to say, I reject out-of-hand the Borkean "ink blot" school of thought advanced by Andrew in his post.
Posted in Analysis and Predictions —
Posted at 12:06am on Nov. 17, 2005 Volokh and Savage on Privacy
By AndrewHyman
Eugene Volokh put a post up this evening that starts like this:
HOUSE OF REPRESENTATIVES URGES NINTH CIRCUIT TO BE MORE ACTIVIST, By a 320-91 Vote: Two weeks ago, a Ninth Circuit panel rejected a parent's claim that a school district's allowing children to be surveyed about sex violated the parent's constitutional rights. Today, the House passed a resolution asking the Ninth Circuit to rehear this decision en banc, "in order to reverse."
Volokh basically says that the right which the House seeks to enforce is not really in the Constitution, and I for one agree. Relatedly, the New York Times is running an op/ed today by Dan Savage, expanding upon some stuff he already wrote at his blog (see this previous confirmthem post). Savage's piece today in the NY Times includes this:
Well, if the right to privacy is so difficult for some people to locate in the Constitution, why don't we just stick it in there? Wouldn't that make it easier to find?
Indeed, it might be a really good idea to have a privacy amendment in the Constitution, for example giving Congress power to strike down state laws that violate fundamental, deeply rooted privacy rights. That way the Supreme Court would have to agree that the state laws are fundamental and deeply rooted, Congress would have to agree that the laws should be stricken down, and the President of course would have a veto. In other words, all three branches of government would have to agree, instead of the current absurd situation where the Supreme Court acts alone and without legitimate authority.
Posted in Analysis and Predictions —
Posted at 4:24pm on Nov. 16, 2005 <strong>Peering into the demented mind of a penumbra-loving-law student</strong>:
By feddie
Res ipsa, folks:
That's it - Alito's got to go
So my friend Mr. Lentz from my 1L section pointed in comments to this disturbing announcement over at Southern Appeal (where they aren't big fans of stare decisis, apparently - conservatism is only good when you like the establishment, eh?). Apparently Alito hired a clerk from Fundie Pizza University law school Ave Maria. Reaching beyond the elitist cloister is fine and good, and I don't mean to imply that nobody who goes to school outside of the T14 deserves to clerk for a federal judge (on the contrary, I think winding up in top schools is largely a function of pure dumb luck in life), but for a federal judge to hire someone from that sort of radical religious fringe institution is clearly an effort to "mainstream" the institution and its graduates. The media should pick up on this, if it's true. What if John Roberts had hired a clerk from Bob Jones? This is very much "outside of the mainstream." And it fits the pattern in the Bush administration, which has been reaching deep into third tier fundagelical law schools to staff government legal positions with people who share their radical theocrat agenda.
Posted in SCOTUS —
Posted at 3:38pm on Nov. 16, 2005 Democrats Emboldened
By Carol Platt Liebau
After yesterday's debacle, why wouldn't Dems be emboldened? For the time being, at least, it looks like they're driving the agenda in the U.S. Senate.
So it's no surprise that Harry Reid should suddenly express misgivings about Judge Alito in the wake of news that Alito wrote 20 years ago that he found no abortion right in the Constitution. Like sharks, Dems smell blood in the water, and they'll carry it as far as the Republicans will let them. After the weakness manifested by Republicans yesterday, sadly, it can't be denied that the prospect of filibustering Alito gained a a whole new life.
And although Lindsay Graham, Olympia Snowe and Mike DeWine have all eschewed the use of a filibuster in Judge Alito's case, it's hard to know whether they'll view their previous positions on the ALito nomination as any more binding than their previous full-throated support for the war in Iraq and the President's strategy there -- both of which they undermined greatly with their votes yesterday.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 12:21pm on Nov. 16, 2005 Wednesday Open Thread
By AndrewHyman
Feel free to comment.
Posted in Open Threads —
Posted at 2:24pm on Nov. 15, 2005 Alito Puts 1985 Statement in Context
By AndrewHyman
Senator Feinstein says Judge Alito told her this today:
I was an advocate seeking a job, it was a political job and that was 1985. I'm now a judge, I've been on the circuit court for 15 years and it's very different. I'm not an advocate, I don't give heed to my personal views, what I do is interpret the law.
Can't argue with those facts. Looks like everyone can go back to sleep now, until the hearings in January. :-)
UPDATE: Or, if you're having trouble getting to sleep, you can read Ed Whelan's thoughts about the soporific recusal allegations against Alito. You can also get drowsy reading a report by Douglas Laycock persuasively explaining how people like Sam Alito and Michael McConnell can have respectable qualms about the Warren Court's reapportionment decisions, without opposing the principle of one-adult-one-vote. Also, Dave Kopel has a good (though somnolent) post about Judge Alito's views on congressional ability to regulate machine guns, under the Commerce Clause.
Posted in Alito —
Posted at 2:07pm on Nov. 15, 2005 The "Ruth Marcus" Fallacy
By Carol Platt Liebau
Here, Ruth Marcus of The Washington Post tries to rewrite history in a piece called "The Ginsburg Fallacy." She claims that Ruth Bader Ginsburg was effectively a bipartisan consensus pick pushed by Republicans for the Supreme Court -- and that "Ginsburg [is not] to liberal as Alito is to conservative."
Wrong. In support of her "consensus pick" theory, Marcus cites only . . . Orin Hatch. And the fact that Orin Hatch "pre-approved" RBG doesn't mean that he agreed with her; the fact is that Republicans haven't made pro-Roe views a disqualifying factor in considering Supreme Court nominations as Democrats have made anti-Roe views.
More importantly -- I was a Senate staffer at the time, in charge of nominations for the senator for whom I worked. And Marcus is just incorrect in suggesting that Republicans were relatively complacent about the nomination. They weren't. Almost every Republican senator knew what RBG stood for, knew how she would vote on the Court (as she has -- consistently with the left), and was unhappy about it.
In fact, some young Senate staffers :) wanted to launch a fight against the nomination. But we were told point-blank that the Republican senators simply weren't going to let it happen: The President was entitled to his picks -- even if we were adamantly opposed to all they stood for -- so long as they were within the relatively wide goalposts of American judicial thought, left or right, and had no ethical or temperament problems.
That, Ms. Marcus, is the real story of how RBG got on the Supreme Court. And when Marcus writes: "Either those peddling this conveniently muddled version of events don't remember it correctly or they are betting that others won't" -- well, she is actually describing herself, whether she means to or not.
Update: Marcus disingenuously cites the following statistic: "According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats." As a preliminary matter, that's one year -- out of the twelve that Ginsburg spent on the DC Circuit (1981-1993). Moreover, speaking as a former clerk on the D.C. Circuit, although that circuit handles veryimportant and sometimes complex matters, many of the cases have to do with arcane administrative law matters, which don't necessarily implicate a judge's ideology. So even if, for one year, RBG agreed more with the Republican appointees than the Democrats, that proves little -- and don't think that the Republican senators wouldn't have known that.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 12:00pm on Nov. 15, 2005 Time to Fight Back, Pro-Lifers
By carney
As I said in my article last week, the Democrats attack anyone who questions Roe, and the Republicans tend to cower. Here's Kennedy's attack, regarding Alito's Reagan-era statements that there is no Constitutional right to abort:
Republicans should be firing back that the views Teddy Kennedy finds "extremely troubling" are correct, and that on the Roe question, Alito has plenty of company.
Posted in SCOTUS —
Posted at 9:50am on Nov. 15, 2005 With 'friends' like these
By Irishlaw
In its A01 story today on the 1985 Alito letter, the Post quotes the estimable Senator Specter (remember, the one who in a frustrating exercise of power scheduled the hearings for two months from now):
But Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee and a supporter of abortion rights, said Alito's 1985 comments obligate the Senate to "question him closely" about the weight he would give to the roughly three dozen abortion-related decisions since Roe .
Supporting Specter in the Pennsylvania primaries because he was slated to be Judiciary Chairman remains one of the most ill-advised decisions by the president and Sen. Santorum in 2004. When Specter does "question [Alito] closely" about Roe, I hope the judge does not back down from the positions he espoused twenty years ago, since after all they're not surprising or indefensible; as Sen. Cornyn said: "I'm not sure it is news that Judge Alito is pro-life, nor that Roe v. Wade was poorly reasoned. Scholars and judges from both sides of the political spectrum . . . have reached the same conclusion." Let's let Specter try to defend publically the legal merits and underpinnings of Roe or to undermine the credibility of a man for holding perfectly reasonable views. I think Judge Alito would be equal to the challenge.
Posted in Judiciary Committee —
Posted at 4:49pm on Nov. 14, 2005 Statements by ACLJ, PFAW, Cornyn, and Leahy
By AndrewHyman
The American Center for Law and Justice has a sensible statement:
The fact that Judge Alito criticized the legal underpinnings supporting abortion as a constitutional right should not be used against him in the confirmation process. The statement by Judge Alito mirrors that of the late Supreme Court Justice Byron White, who was appointed by President Kennedy, and the late Chief Justice William Rehnquist. At the same time, the Senate overwhelmingly approved Justices Breyer and Ginsburg after they expressed comments supporting the right to abortion. Even Justice Ginsburg ââ‚“ who supports the right to abortion ââ‚“ has questioned the legal underpinnings of Roe v. Wade. A statement by Judge Alito two decades ago questioning the constitutionality of the right to an abortion cannot be used to disqualify him for a seat on the high court. The Senate should focus on Judge Alitoââ‚â„¢s judicial philosophy and his 15-year record of service on the U.S. Court of Appeals for the Third Circuit.
A similar statement from the Judicial Confirmation Network is here. The actual 1985 document is available here from the Reagan Library. Hat Tip: Fred Barbash.
UPDATE: Democratic Minority Leader Neas is fuming.
UPDATE #2: Senator Cornyn says this:
I'm not sure it is news that Judge Alito is pro-life, nor that Roe v. Wade was poorly reasoned â₆scholars and judges from both sides of the political spectrum, including Ruth Bader Ginsburg, have reached the same conclusion....The question is whether he will put his personal views aside as any judge should and base his rulings on what the Constitution says. His long track record as a federal appeals court judge shows that he has indeed put his personal views on abortion aside, and I have every confidence he will continue to do so if he is confirmed to the United States Supreme Court.
UPDATE #3: Senator Leahy says this:
Iââ‚â„¢m concerned about documents that show an eager and early partisan in the ranks of ideological activists in his partyââ‚â„¢s extreme right wing. He bragged about his support for the cut-throat politics of NCPAC, which largely invented the negative, slash-and-burn politics of the hard right and of the Republican Partyââ‚â„¢s "Southern Strategy." His 1985 job application for a political appointment in Ed Meeseââ‚â„¢s Justice Department shows a determined and aggressive participant in an ideological movement intended to withdraw discrimination protections from workers and even criticized the concept of one-person, one-vote, among other fundamental rights. Judge Alito has many questions to answer during his upcoming hearings before the Judiciary Committee.
Obviously, confirmthem will not support any nominee who engages in cut-throat, slash-and-burn politics, or who criticizes the concept of one-adult, one-vote. It will be interesting to see how Senator Leahy and Democratic Minority Leader Neas try to prove those bogus charges. Like Samuel Alito, Michael McConnell has been critical of the Warren Court's reapportionment decisions, but not because McConnell is opposed to one person, one vote.
Posted in Alito —
Posted at 11:58am on Nov. 14, 2005 Americans Generally Favor Alito Appointment: Closer to Roberts than to Miers in Popularity
By AndrewHyman
Gallup has the latest poll results about the Alito nomination.
Regarding public opinion about Roe v. Wade, an overwhelming majority would like the holding of that decision scaled back. According to some polls, most people don't want Roe overturned; nevertheless, a vast majority does want abortion to generally be illegal months before viability.
In a "Times Poll, 65% of respondents said abortions in the second trimester should not be legal. Female respondents feel more strongly about the issue: 72% believe second-trimester abortions should be illegal, compared with 58% of men." Rubin, Americans Narrowing Support for Abortion, L.A. Times, June 18, 2000, at 1. See also Saad, "Americans Walk the Middle Road on Abortion," The Gallup Poll Monthly (April 2000) (The poll question was: "Do you think abortion should generally be legal or generally illegal during the second three months of pregnancy?" 65% said illegal in July of 1996, and 69% said illegal in March of 2000). See also Saad, "Roe v. Wade Has Positive Public Image; Americans want abortion legal in some, but not all, circumstances," Gallup News Service (January 2003)(68% say abortion should generally be illegal in the second trimester, and 25% say legal). These polls also showed that men are more supportive of abortion rights than women.
I wonder how the public would answer a question like this: "If Roe were overturned by the Supreme Court, then Congress and the state legislatures would still be able to keep abortion legal. Would you oppose a Supreme Court decision like that?" Or how about: "If the Supreme Court honestly believes that the Constitution doesn't say anything about abortion, do you think that they should still pretend otherwise by preserving Roe v. Wade?" Poll results depend heavily upon the language of the poll questions.
Hat Tip: How Appealing for the Alito poll results.
Posted in Alito —
Posted at 4:35am on Nov. 14, 2005 Alito on Abortion, Circa 1985
By AndrewHyman
The Washington Times is reporting on Monday about a 1985 document that details Samuel Alito's position on Roe v. Wade at that time. Here's how the article by Bill Sammon begins:
Judge Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times.
"I personally believe very strongly" in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.
The document, which is likely to inflame liberals who oppose Judge Alito's nomination to the Supreme Court, is among many that the White House will release today from the Ronald Reagan Presidential Library.
In direct, unambiguous language, the young career lawyer who served as assistant to Solicitor General Rex E. Lee, demonstrated his conservative bona fides as he sought to become a political appointee in the Reagan administration.
"I am and always have been a conservative," he wrote in an attachment to the noncareer appointment form that he sent to the Presidential Personnel Office. "I am a lifelong registered Republican."
But his statements against abortion and affirmative action might cause him headaches from Democrats and liberals as he prepares for confirmation hearings before the Senate Judiciary Committee, scheduled for January.
"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly," he wrote.
"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."
A leading Republican involved in the nomination process insisted that this does not prove Judge Alito, if confirmed to the Supreme Court, will overturn Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a constitutional right.
Well, this will certainly enliven the debate. Alito's 1985 statements were 100% correct, IMHO.
Posted in Alito —
Posted at 8:59pm on Nov. 13, 2005 Alito: Beards and Lawn Flamingos are Okay, But Statues of Felines Aren't
By AndrewHyman
Eugene Volokh has an op/ed in the Wall Street Journal today, discussing Judge Alito's approach to First Amendment issues, including the right to grow a beard for religious reasons. Volokh concludes that Alito is "a cautious jurist who seems likely to move the court toward a slightly more claimant-friendly view of free speech and religious freedom --- and a slightly more government-friendly view of the Establishment Clause." [UPDATE: George Will tackles the same subject in Newsweek.]
However, on a humorous note, A3G has uncovered evidence that Judge Alito may be prejudiced in favor of flamingo-related expressive conduct, while looking askance at cat-related First Amendment behavior --- as you'll see by clicking on the image above.
[UPDATE, Nov. 14, 2005]: The surprising true identity/creator of A3G is now known. Hat Tip to Howard Bashman. Could the proprietor of Underneath Their Robes perhaps be angling for that long-sought SCOTUS clerkship? :-)
Underneath Their Robes
November 03, 2005
Judge Alito's Sense of Humor
Although federal judges aren't widely regarded as the funniest people, many of them are actually hilarious. For example, our beloved Supreme Court nominee, Judge Samuel A. Alito, Jr., has a great sense of humor (as one can see over at his blog).
Judge Alito's sense of humor has been described as "quiet and sly." It's not as flashy as that of Justice Antonin Scalia, nor as snarky as that of the young John Roberts, but it's definitely there (notwithstanding Dana Milbank's somewhat juvenile attempt to portray Judge Alito as a humorless nerd)....Take a look at this "Justice Is Blind" item, which appeared in the pages of this blog back in October 2004:
The Hallways of Justice. This district court diva, who harbors delusions of grandeur, placed large stonework lions on either side of the door to her chambers. Her neighbor down the hall, an appeals court judge, found the lions absolutely ridiculous (and ugly to boot). Shortly thereafter, he placed two hideous, plastic pink flamingos flanking the entrance to his own chambers.
The district court diva took the hint. She removed her leonine decorations sua sponte, without waiting for the mandate to issue from the appellate court...
Who was the appeals court judge in this humorous tale? Why, it was none other than Judge Samuel Alito! (For confirmation, check out this article, by the excellent Jan Crawford Greenburg.)
Posted in Analysis and Predictions —
Posted at 2:16pm on Nov. 13, 2005 Michelman Versus the Facts
By AndrewHyman
Today in the LA Times, Kate Michelman attacks Samuel Alito over his Casey dissent. Alito's Casey opinion, as well as the Supreme Court's opinions in that case, are linked over at the right-hand-side of the confirmthem page. Here are some excerpts from Michelman's LA Times piece today:
Looking back more than three decades to one of the most difficult times in my life, it's hard to say what seems more insulting: being forced to obtain my husband's permission to have an abortion after he had just abandoned my family or â₆many years later â₆Supreme Court nominee Samuel A. Alito Jr.'s ruling that a similar requirement was not, in constitutional parlance, an "undue burden."....
Politicians do not know how laws will affect each individualized case. Courtrooms are a citizen's last refuge from unjust laws....From the Terri Schiavo case to the Patriot Act, politicians at all levels of government show an increasing willingness to invade the most sacred areas of private life....
This is obviously a divisive subject, which means that very probably no minds will be changed by my little post here at confirmthem. But, it's worth pointing out that Ms. Michelman is not making a full disclosure here. The law at issue in Casey was vastly different from the situation that Michelman says she faced as a young woman. There is a huge difference between being required to disclose an abortion to the father of an unborn child, as compared to needing the father's consent. And, Bob Novak explained last week that Michelman has not been disclosing the true nature of the statute at issue in Casey:
Michelman did not disclose the exemptions to spousal notification. As an abortion-seeking woman searching for the husband who has abandoned her, she would only have had to provide a signed --- not notarized --- statement that "her spouse, after diligent effort, could not be located."
The abortion lobby also raises the specter of Alito forcing a pregnant woman to risk a beating by notifying a violent husband of her intended abortion. Actually, the statute permitted a woman to exempt herself with a non-notarized statement that she "has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual."
Ms. Michelman is concerned that politicians do not know how laws will affect each individualized case, and she says that courtrooms are a citizen's last refuge from unjust laws. Actually, lawmakers can hear from a much broader range of affected persons and organizations, and can more thoroughly investigate medical practices, biological facts, and public sentiment. This is why the founders of our country never intended for courts to be a last refuge from all unjust laws. On the contrary, the founders of our country recognized that such a thing would be extremely dangerous. Thomas Jefferson --- the author of the Declaration of Independence --- explained (in 1785) the general rule: courts of equity ââ‚Å“cannot interpose in any case against the express letter and intention of the legislature. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged.ââ‚? The last refuge from unjust laws is generally the governor of a state, who can issue pardons, and the legislature of the state, which can repeal bad laws. In this country, the courts are only authorized to intervene against unjust laws when a particular constitutional provision has been violated. In other countries (e.g. England), the courts cannot even do that much.
Ms. Michelman argues that --- from the Terri Schiavo case to the Patriot Act --- politicians at all levels of government show an increasing willingness to invade people's privacy. Yet when Ms. Michelman would want to seek a court order protecting her from an abusive husband, or requiring that her husband provide alimony, or barring her husband from trying to rescue an unborn child from abortion, then those invasions of privacy are fine with her. The fact is that government must invade privacy to defend one human being from another. Ms. Michelman undoubtedly supports the State of Florida's protection of Terri Schiavo's husband from her parents, and yet --- from any objective point of view --- the state was clearly invading the parents' privacy by keeping them from their daughter. A general right to privacy is too amorphous a thing to be in the U.S. Constitution, and guess what --- it isn't.
UPDATE: Patterico also believes that Ms. Michelman's op/ed glosses over some important facts.
Posted in Analysis and Predictions —
Posted at 9:20pm on Nov. 12, 2005 Justice Thomas on the Judiciary
By AndrewHyman
Feddie beat me by three minutes posting the link to excerpts from Karl Rove's speech. Note that Irishlaw also mentioned Rove's speech, here in this blog. Anyway, here's a recent AP report about a speech by Justice Thomas; he agrees with Justice O'Connor that the new Chief Justice is "absolutely fabulous."
Posted in Analysis and Predictions —
Posted at 9:19pm on Nov. 12, 2005 A Test of Character
By Carol Platt Liebau
The Maternal Optimist passes along a revealing anecdote about the character of Chief Justice Roberts.
Posted in Roberts —
Posted at 9:17pm on Nov. 12, 2005 Rove Federalist Society Speech Excerpts: "Our Courts are In Crisis"
By feddie
Courtesy of WaPo's "Campaign for the Supreme Court." Here's a taste:
It is an honor to be here tonight. The Federalist Society is one of Americaââ‚â„¢s most important intellectual movements. Since your founding more than 20 years ago, you have made extraordinary efforts to return our country to constitutionalism. Youââ‚â„¢ve developed new generations of lawyers, judges and legal scholars who are committed to that vision. And youââ‚â„¢ve shaped Americaââ‚â„¢s legal, cultural and political landscape in a very constructive way.
. . . .
I admire the Federalist Society for the commitment and energy of its members and for their intellectual rigor and effectiveness. One of George W. Bushââ‚â„¢s greatest contributions as president will be the changes heââ‚â„¢s brought about in our courts and our legal culture, and those changes would have been impossible were it not for the Federalist Society.
No question about it.
Posted in News —
Posted at 5:55pm on Nov. 12, 2005 Yet another reason to support Judge Alito
By feddie
The legal-liberal yalies don't support his nomination.
Posted in SCOTUS —
Posted at 3:30pm on Nov. 12, 2005 More Alito Resources
By AndrewHyman
All of Judge Alito's opinions are now searchable, courtesy of AskSam. Hat Tip: BeSpacific.
Also, National Review provides Judge Alito's recent letter to Senator Specter regarding recusal.
Posted in Alito —
Posted at 11:48am on Nov. 12, 2005 Arlen Specter as Used Car Salesman
By AndrewHyman
Writing in the Wall Street Journal today, Senator Specter says this:
In evaluating Judge Alito's jurisprudence on this [abortion] subject, it is significant that he told me he accepts Griswold v. Connecticut, which affirmed the right to privacy as part of the liberty clause.
But that's not what Specter said immediately after meeting with Judge Alito. If Senator Specter is being accurate now --- instead of then --- it would seem that Judge Alito not only supports the notion of "substantive due process," but also supports its application to matters of sex. Time will tell which Arlen Specter is speaking the whole truth. In the mean time, here's what the Supreme Court itself unanimously said about this unconstitutional doctrine of "substantive due process":
[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.
Read: accumulated product of emanations and penumbras and gaseous hallucinations. In reality, the Due Process Clause cannot and does not impose any substantive limits on legislation, not even limits that are allegedly established by long-standing custom and practice.
UPDATE: Specter's full op/ed is here.
Posted in Alito —
Posted at 9:03pm on Nov. 11, 2005 Judge Pryor goes back to Washington (i.e., the Federalist Society's lawyers' convention)
By feddie
"I'm happy to be back in the nationââ‚â„¢s capital, I am," he insisted. "I donââ‚â„¢t have any regrets or ill feelings at allâ₦. I can assure you that whatever was said up here during the confirmation process did not cause me any grief among friends and people I see in my home state."
Translation: "How ya like me now, Senator Kennedy?" :)
Posted in Circuit Courts —
Posted at 8:57pm on Nov. 11, 2005 Ponnuru on stare decisis
By feddie
"A precedent that is grounded in the Constitution doesn't need to lean much on its precedential force."
That's an eloquent, indirect way of saying SDIFS! :)
Posted in Uncategorized —
Posted at 4:04pm on Nov. 11, 2005 "Engaged in a Very Civil War--The Federalist Society has reshaped the legal system without ever going to court"
By feddie
These days, the one-time college debating society is seen by both friends and critics as the legal branch of the "vast right-wing conspiracy." It brings together prominent conservative judges, Bush administration lawyers, Cabinet officers, law professors and roomfuls of young lawyers who hope to assume their places in the future.
They share a common concern: that courts and judges have taken on too much power in America's democracy and that this "judicial activism" should be replaced by what Roberts described as a modest and limited role for the judiciary.
In fact, in large measure, they have already reshaped the courts.
Conservative judges, many of them products of the Federalist Society network, have come to dominate the federal bench.
True. Very true. But the best is yet to come, folks. :)
Posted in News —
Posted at 2:44pm on Nov. 11, 2005 Judge Easterbrook on "super precedent"
By feddie
I thought y'all would enjoy this highlight from the Federalist Society's national lawyers' convention (which is being held this week in D.C.), passed along by one of my co-bloggers, William Watkins, over at Southern Appeal:
For me, the highlight yesterday was an exchange between Judge Frank Easterbrook and Professor John McGinnis. McGinnis praised a suggestion apparently made by Judge Mike Luttig that if a case enjoys a lengthy life and is has been affirmed or accepted by judges of the High Court from both sides of the aisle, then that case is a Super Precedent and is entitled to great deference. To this Judge Easterbrook replied, "Oh, you mean like Plessy?" The house came down with that line. And once again, we are shown just how pernicious stare decisis can be--it elevates the rules crafted by judges over the rules adopted by the people via their fundamental law. As Steve would say, "It is fo' suckas."
Posted in News —
Posted at 10:22am on Nov. 11, 2005 Rove on 'constitutionalism'
By Irishlaw
I was fortunate to be able to attend last night's Federalist Society dinner here in D.C., where the featured speaker was none other than Karl Rove. I was somewhat surprised that he chose to prominently credit Harriet Miers at the beginning of his speech as someone who had been very instrumental in helping with the president's 200 federal courts appointments (a point questioned here and elsewhere in the past month) and their thorough vetting (no mention, ahem, of the incomplete vetting done of Ms. Miers herself). Nevertheless, the crowd applauded politely and graciously, though I believe there was much more enthusiasm at Rove's expression of confidence that Justice Alito would soon take his seat on the Court along with Chief Justice Roberts.
Rove spent awhile talking about the divide between judges who believe it's appropriate to legislate from the bench and the people who are uneasy with courts deciding policy issues. He referenced the former Texas Supreme Court, "the best court money could buy," before justices like Gonzales, Owen, Hecht, and others came onto the court in the 1990s; he also referenced Alabama's "Tort Hell" of the 1980s, the Ohio Supreme Court, and the Massachusetts Goodridge decision that specifically helped lead to a backlash of states across the country passing marriage amendments even over the Defense of Marriage Acts they already had. The federal courts, however, are where the divide has really seemed apparent. Rove referenced the 9th Circuit's Newdow Pledge decision, the Supreme Court's recent "evolving majority" on Roper v. Simmons, and one district court's dismissal of federal suit against particularly egregious pornographers, in spite of a federal law conferring jurisdiction. (I wasn't familiar with this particular case.) The American people, Rove said, are unhappy with this because of the basic civics lessons we all had in fourth grade: separation of powers, and checks and balances. If the courts were supposed to be the 'least dangerous branch,' not charged with enacting policy preferences into law, that has turned out not to be the case; the people will generally support efforts to rein in the judiciary. Rove expressed his and the president's support for a 'constitutionalist' approach to interpreting the law, hewing to the Founders' original understandings, and he discussed it in terms that I am sure were familiar and welcome to this particular audience. All in all, a decent speech. (Plus, after the dinner I was able to shake hands with Judge Pryor, which made the event a highlight of my time in this city so far!)
Posted in News —
Posted at 2:10am on Nov. 11, 2005 The All-Purpose Smear
By Carol Platt Liebau
So Senator Frank Lautenberg has deemed Judge Alito to be "insensitive". Isn't that just the perfect all-purpose smear? It sounds bad but means nothing at all -- as, in fact, Lautenberg implicitly acknowledged when he waited half a day after making the charge to even attempt to back it up.
After being forced to try to adduce facts to back up his inflammatory allegation, Lautenberg revealed that Judge Alito had offended his sensitivities by ruling in some cases against female or minority parties. Suffice it to say that the entire episode doesn't speak well for the Senator's intellect.
It's ridiculous to argue that an adverse ruling against a particular party indicate some kind of invidious dislike for a gender or minority group generally. And indeed, in the end, if Lautenberg's argument were to be taken seriously, Alito would have to have ruled in favor of female and minority parties simply because of race and gender, just to prove his own color- or genderblindness (i.e., he'd have to discriminate to prove he doesn't discriminate).
That, of course, would make him "insensitive" to the concept of "equal justice under law". And for a judge, that's the only "insensitivity" that really matters.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 1:58am on Nov. 11, 2005 Bush Nominates Alito
By AndrewHyman
And you thought he already had.
Way back in 1972, Alito anticipated that a supreme court, "with the taste of power in its mouth, is unlikely ever to renounce an active role." Hmm, I wonder if that view has changed over the course of 33 years.
UPDATE: The full text is here.
Posted in Alito —
Posted at 7:30pm on Nov. 10, 2005 The So-Called Constitutional Option is Still on the Table
By AndrewHyman
Someone emailed us suggesting that we highlight a recent statement by Senator Frist on the constitutional/nuclear option. His full statement is below the fold. Basically, the message is that Judge Alito will be confirmed with 50 votes or more. It's that simple.
Drawing the line in the sand
By Sen. Bill Frist (R-Tenn.), majority leader of the U.S. Senate
Published November 9, 2005
Last week's absurd, unwarranted and disingenuous call for a closed session of the United States Senate sent me a clear message: Many Democrats have decided to mock the Senate's rules in the name of partisan advantage. For more than three years, the Democrats have abused Senate rules to impede the judicial nomination process. To do this, they used a technique called the filibuster--a refusal to end debate and vote.
I am concerned that they may use the filibuster to block President Bush's nomination of Samuel Alito Jr., of the Philadelphia-based 3rd U.S. Court of Appeals, to a seat on the U.S. Supreme Court.
Don't get me wrong: The Senate is not a rubber stamp. All senators should take a careful look at Alito's record, contemplate it, debate it, and finally, use that information and their judgment to vote on his nomination. As a body, the Senate needs to debate and deliberate but, ultimately, it exists to vote. If Alito has enough votes for approval, he should take his place on the bench. If he does not, the president will have to find another nominee. It's that simple. The filibuster has no place in the judicial nominating process.
When considering legislation, it's true that the filibuster has great value in protecting the minority party's rights. Starting during the last Congress, however, Democrats threw 214 years of Senate tradition out the window and used filibusters to stop the Senate from voting on 10 judicial nominees. The minority party subjected five others to filibuster threats and four nominees ultimately withdrew their names from consideration.
Because of the Democrats' interference, the Senate could not do its duty. I'm willing to consider any reasonable proposal on debate: If the Democrats believe that each senator should have a full hour to speak uninterrupted about Alito's nomination, I am open to the idea. But I will not negotiate about the Senate's constitutional duty to vote on the president's judicial nominees.
In the recent past, it has taken 60 votes to shut off debate and end a filibuster. The rules governing filibusters have changed a number of times, and the Constitution gives the Senate a clear right to modify them by simple majority vote. While serving as majority leader in the 1970s and 1980s, my Democratic colleague Sen. Robert Byrd (D-W.Va.) altered Senate precedent with support from a simple majority of senators on four occasions in order to alter Senate procedures and end filibusters. Republicans disliked his use of this "constitutional option," but we know that he stood on firm ground.
If members of the Democratic minority persist in blocking a vote on Alito's nomination, the Senate will have no choice but to do what. Byrd did: exercise its constitutional rights and bring Alito's nomination up for a vote.
I hope that the Senate will conduct Alito's confirmation process with customary courtesy and civility. The process should move toward a January vote in an orderly manner. But if the Democratic minority chooses to obstruct the confirmation process, abuse Senate rules and violate the Constitution, I will not hesitate to put the constitutional option before my colleagues.
Posted in Fillibuster —
Posted at 7:11pm on Nov. 10, 2005 RNC Conference Call Regarding Alito
By Lorie Byrd
I was not able to be in on today's RNC blogger conference call, but Mark Coffey has an account here.
Posted in Alito —
Posted at 7:05pm on Nov. 10, 2005 Alito And Recusal
By Lorie Byrd
I missed the blogger conference call on Judge Alito today, but below are the opinions of several professors on the issue of Alito and the Vanguard recusal:
Professor Ronald D. Rotunda, George Mason University
Professor Geoffrey C. Hazard, University of Pennsylvania
Professor Thomas D. Morgan, George Washington University
Posted in Analysis and Predictions —
Posted at 10:07am on Nov. 10, 2005 Thursday Open Thread
By AndrewHyman
Commenters comment.
Posted in Administrative —
Posted at 3:54pm on Nov. 9, 2005 Collins: Filibuster Unlikely
By Carol Platt Liebau
In this Washington Post piece, another Republican member of the Gang of 14 comes out against using the filibuster on the Alito nomination.
Reading between the lines of the piece, it sounds to me like Alito knows how to answer senators' questions without committing to anything.
And in the meantime, the pathetic left-wing groups unabashedly embark on a campaign of distortion, trying to conceal the truth of their impotence with bluster and bravado.
Cross posted at CarolLiebau.blogspot.com".
Posted in Analysis and Predictions —
Posted at 11:45am on Nov. 9, 2005 Wednesday Open Thread
By AndrewHyman
Comments are welcome.
Posted in Administrative —
Posted at 8:07pm on Nov. 8, 2005 Tuesday Evening Open Thread
By AndrewHyman
Comments are welcome.
Posted in Administrative —
Posted at 3:37pm on Nov. 8, 2005 Alito, The Prince & Murphy
By Carol Platt Liebau
The blog at The Washington Post notes that The Daily Princetonian has corrected its erroneous report that Sam Alito's thesis advisor, Professor Walter Murphy, had stated that both he and Alito had agreed that Roe was wrongly decided. As a former editorial chairman of The Prince, I hesitate to criticize, but it seems that the mistake was a not-insignificant one. Here's the correction:
The original article mistakenly reported that Walter Murphy said he and Alito agreed that Roe v. Wade was wrongly decided. The error was a result of a misinterpretation of an earlier quote. In an interview Tuesday morning, Murphy said: "Sam and I have never talked about Roe v. Wade that I recall."
Wow.
In any case, I've been meaning to note how significant Professor Walter Murphy's commendation of Judge Alito is. Professor Murphy's "Constitutional Interpretation" class was known to be one of the toughest and best on campus. Interestingly, when I was there, one of the preceptors was Robert George.
In any case, for someone to win the respect and enthusiastic endorsement of Professor Murphy is really something. He's not a man given to easy grading or easy praise.
Cross posted at CarolLiebau.blogspot.com.
Posted in Analysis and Predictions —
Posted at 12:39pm on Nov. 8, 2005 Morning Commentary Roundup
By Zummo
- Bruce Fein provides a quick history of the Court's activism, and predicts that Alito's nomination and eventual confirmation marks a significant turning point against this tide.
Judge Alito's confirmation would end the court's persistent interpretive nonsense, even if prudence dictates leaving intact the holding (but not the reasoning) of Roe v. Wade (1973) editor's note: it seems to me rather imprudent to uphold the holding of a wrongly reasoned decision.
- Ed Whelan debunks some misinformation spread by PFAW regarding Alito's Sheridan opinion.
- Thomas Sowell criticizes the delay in getting to confirmation hearings, and has some stern words for the GOP and its leadership:
If the Republicans are not willing to fight for the things that people elected them to do, then some of the people who elected them may not turn out to vote for them at the next election.
- Finally, my Political Spectrum co-blogger mouldfan has an in-depth analysis of Alito's 1974 student note in the Yale Law Journal. As he says, the note really won't tell us much about Sam Alito's jurisprudence, but mouldy has an intereseting take on footnote 80 and its implications regarding how "objective" Justices truly are when they are deciding cases.
Sure, Judges are there to decide the cases and interpret the laws, but they are not doing it in a vacuum and they are persuaded both by their own personal philosophies and the philosophies and opinions of their fellow judges.
I think he is probably more right than we would like to believe.
Posted in SCOTUS —
Posted at 9:30am on Nov. 8, 2005 Tuesday Morning Open Thread
By AndrewHyman
Make yourselves at home. :-)
Posted in Administrative —
Posted at 6:42pm on Nov. 7, 2005 The fight that never was
By Zummo
Patterico notes yet another fair article from the LA Times on Alito, and he observes:
Here we bloggers were all suited up, ready to enter the game and do battle â₆but instead, weââ‚â„¢re pretty much just standing on the sidelines, looking at each other and shrugging our shoulders. The game, it appears, will easily be won without us.
Fine by me.
Actually, you almost get the sense the left is lulling us to sleep with all this nice talk. When Ted Kennedy even hints that he might vote for Alito, you wonder what they've got up their sleeves. They're up to something, I tell ya.
Hey, just because you're paranoid doesn't mean they're not after you.
Update: Re: Kennedy hinting at voting for Alito. Of course he probably won't, but I was basing this on his appearances on the Sunday Morning Talk Shows, particularly Meet the Press, where he certainly left the door open. I'm the first to admit that it's a stretch to think that Kennedy would ultimately vote for Alito, but he was far less critical of him than one might imagine.
Posted in SCOTUS —
Posted at 1:10pm on Nov. 7, 2005 Words of Wisdom
By Zummo
Here is an excerpt from Justice Scalia's book review of Law's Quandry, by Steven Smith, courtesy of the Wall Street Jornal. My apologies if this has already been posted, but it merits repeating.
[In] a democracy, it is not the function of law to establish any more social policy than what is fairly expressed by legislation, enacted through prescribed democratic procedures. It troubles Smith, but does not at all trouble me -- in fact, it pleases me -- that giving the words of the Constitution their normal meaning would "expel from the domain of legal issues â₦ most of the constitutional disputes that capture our attention," such as "Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?" If we should read English as English, Smith bemoans, "these questions would seemingly all have received the same answer: 'No law on that one.'"
That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law. Smith's response is revealing: "We have not been content with this sort of modesty in our law." The antecedent of the pronoun is unspecified, but I fancy it refers to the legal academic community which establishes the permissible boundaries for Smith's thinking, or at least his writing. Many Americans outside that community yearn for this sort of modesty. Indeed, it was something of an issue in the last electionâ₦
I think Lawrence Tribe needs to read that.
Posted in SCOTUS —
Posted at 11:35am on Nov. 7, 2005 Alito and abortion
By Irishlaw
I haven't seen this posted yet, so here is the Washington Post's editorial from this morning. Looking at the abortion cases that have been so much discussed, it concludes:
How Judge Alito will eventually rule on abortion may be determined as much by his view of precedent as by his views on the underlying question. Concerning the latter, his record, while suggestive of attitudes with which we disagree, is not disqualifying and reveals significantly less than both sides publicly insist.
The Post editorial board conceding nothing in these opinions is "disqualifying" -- contrary suggestions from its other opinion writers notwithstanding -- has got to be another positive signal for the nomination.
Posted in SCOTUS —
Posted at 9:41am on Nov. 7, 2005 Roe was Wrong
By carney
In my Brainwash column today, I call on GOP Senators to show some spine and say what everyone with half a legal mind knows, Roe was a shoddy, sloppy, decision that cannot honestly be defended. Until they say this, we are relegated to stealth nominees and dishonest confirmation debates.
To aid Roe critics in making this point, I have begun, at my website, a catalogue of criticisms of Roe, all from pro-choice writers and legal scholars. If we spend the Alito battle getting this argument out there, perhaps we can embolden Bush to name Garza next time.
Posted in SCOTUS —
Posted at 10:59pm on Nov. 6, 2005 Biden: Alito Filibuster Unlikely
By Carol Platt Liebau
Today, Sen. Joe Biden (D-DE)downplayed the chances of a filibuster on the nomination of Samuel Alito.
It's good news when even "Slow Joe" sees the writing on the wall. There's nothing about this nomination that fits within even the admittedly ambiguous category of "extraordinary circumstances."
Posted in Analysis and Predictions —
Posted at 1:04pm on Nov. 6, 2005 Andrew's Taking a Break
By AndrewHyman
I'll be bowing out of confirmthem, at least until the Alito hearings start in January (or until I can't resist posting about something). I've got lots of other stuff to catch up with.
In the mean time, here's something to ponder. John Marshall famously wrote that, "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137, 177 (1803). But Marshall also wrote that it is, "the peculiar province of the legislature to prescribe general rules for the government of society..." Fletcher v. Peck, 10 U.S. 87, 136 (1810). Tragically, this balance between legislative and judicial power is now out of whack.
Judges nowadays are fond of striking down laws that impose "undue burdens" on whatever the judges designate as fundamental rights. For example, in the Casey decision, the Court struck down a law that protected a husband's right to know about his wife's abortion. In reality, judges are supposed to give people the amount of protection that is "due" according to the law of the land, rather than the amount "due" according to the judiciary's own contrary notions.
Anyway, see you later. Happy Holidays! :-)
Posted in Administrative —
Posted at 10:19pm on Nov. 5, 2005 Tripe
By AndrewHyman
Colbert King of the Washington Post accuses Judge Alito's supporters of racism, sexism, and homophobia:
Unspoken, but well understood, is that to be short-listed it certainly doesn't hurt to be white, male and straight.
At least Colbert King is concise. Hat Tip to commenter "Ironman" for pointing out this piece of shameful writing. Captain's Quarters has a response for Mr. King. I'd only add that I hope one day Mr. King will find it in his heart to acknowledge that people of good will can be on two sides of a debate.
UPDATE: Despite their alleged homophobia, racism, and sexism, John Hinderaker and Paul Mirengoff have a pretty good pro-Alito op/ed in tomorrow's Washington Post.
Posted in News —
Posted at 8:15pm on Nov. 5, 2005 New Committee for Justice Blog
By AndrewHyman
The CFJ has a revamped blog, here --- check it out. Also, Patterico continues to write detailed posts about the Alito nomination. And, President Aristotle discusses an interesting law review article that Alito wrote in 1987.
Posted in Alito —
Posted at 6:54pm on Nov. 5, 2005 "Machine Gun Sammy"
By Zummo
Good analysis from Eugene Volokh refuting this Brady Campaign Press Release. The Brady Campaign distorted Alito's opinion on Congress' ability to ban private possessions of machine guns, and refers to him as "Machine Gun Sammy." As Volokh points out, all Alito did was uphold the reasoning put forward by the Supreme Court in US v. Lopez, an opinion joined by Sandra Day O'Connor - who Brady praises in the press release.
Yet presumably, if Jim Brady is praising Sandra Day O'Connor, he must not really think that she "favors legalized possession of guns in school zones," and he must not be ready to dub her "Guns-in-School-Zones Sandy" â₆he must understand that her vote had to do with who decides what to do about possession of guns in school zones (the states or the federal government), and that states would remain free to outlaw such possession. Why then does his organization say that Judge Alito "favors legal machine guns"?
Posted in SCOTUS —
Posted at 5:25pm on Nov. 5, 2005 Durbin on Alito
By AndrewHyman
Paul mentioned in the previous post this statement by Senator Durbin about a right to privacy:
He satisfied me that he recognized this to be one of the unenumerated rights in the Constitution, and he led me to believe that he felt that it was an established right.
I'd hope that Judge Alito would be closely questioned about this during the hearings. If he believes in an unenumerated constitutional right to privacy, then he ought to be asked: "privacy to do what?" Putting someone on SCOTUS who espouses such an open-ended right really ought to be preceded by detailed questioning. Does Judge Alito mean that such a right is protected absolutely, or only that certain procedures must be followed when a person is deprived of privacy? Does he believe that this alleged constitutional right protects a person's privacy rights even when they conflict with the private rights of others, and how would he resolve such conflicts? In which clause or clauses of the Constitution does he find this right, and does he believe that the authors of that clause or clauses really intended to establish SCOTUS as the final arbiter of everything that occurs in private?
Personally, I think the Constitution does protect certain aspects of privacy in specific contexts, especially in the Fourth Amendment context. But I don't think that there is really any substantive, federally enforceable right to privacy in the Ninth or Fourteenth Amendments. SCOTUS has said so, but wrongly, in my opinion.
Posted in Judiciary Committee —
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