ConfirmThem

Posted at 12:49pm on Aug. 8, 2006 The RedState network expands

By krempasky

It has NOTHING to do with judicial nominations - but admit it, you're darn glad it's there. A place to take a breather, lift a pint - and maybe throw a chair at a Baltimore Ravens fan or taunt a Cowboys fan about T.O. RedState Sports launched this morning. Check it out.

Posted in Administrative —

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Posted at 11:43am on Aug. 8, 2006 Testing

By Quin

Testing these new digs. 1) Justice Kennedy is a menace to society. 2) I hate learning new technology, so I'm not the best judge of this because I ALWAYS get all discombobulated when a tech system (such as a blog) that I am accustomed to using and reading changes, but.... so far, I find the new Confirm Them a little disconcerting. Red State is a fabulous host, so I'm sure this will work out brilliantly in the long run, but for now I miss the blue background and the lack of bugs.... but I still am tremendously grateful to be allowed to be one of the featured bloggers here.

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Posted at 10:44am on Aug. 8, 2006 So, What Do You Think About the New Format?

By AndrewHyman

A few weeks ago, many people commented about the planned changes to this site, and you can read those comments here. Now that the new site is actually here, why not help fix it up by commenting some more?

One thing I'm kind of curious about is whether a person like me who writes a post ought to be able to waive the password requirement for commenters. Maybe that wouldn't be an admistrative problem, as long as everyone is aware that they should pick only one unique username and stick with it. On the other hand, the password requirement isn't particularly onerous, and it does make it easier to screen out spam.

Also, what do people think about the way comments in a thread no longer appear one after the other, and instead are ordered according to which comment someone is responding to? Does that help or hinder readability?

Posted in Administrative —

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Posted at 1:31am on Aug. 8, 2006 Boyle and Quintiles

By AndrewHyman

Here are some newly released documents regarding Judge Terrence W. Boyle's investment in a company called "Quintiles," for those of you who enjoy reading tax forms and that sort of riveting material. If you prefer a summary: the documents basically show that Boyle's accountant made a slight error. Will they launch a filibuster now?

Hat Tip: How Appealing.

Posted in Circuit Courts —

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Posted at 7:55pm on Aug. 7, 2006 Feddie Beat Me To It

By AndrewHyman

I was going to write a post about Justice Kennedy's recent ramblings, but Feddie has beaten me to it. It's frightening to me that Justice Kennedy actually seems to believe he has legitimate power to strike down statutes merely because he thinks they impinge upon people's ability "to dare" or "to plan" or to "have joy" --- even when elected legislators believe that the statutes are necessary for exactly those purposes.

If the Bolton nomination doesn't work out, I sincerely hope that President Bush will consider nominating Anthony Kennedy to be UN Ambassador. I'll grant that Justice Kennedy has good intentions, but he's entirely in the wrong job right now.

From Justice Kennedy's speech to the ABA:

For us law is a liberating force, it's a promise, it's a covenant, that says you can hope, you can dream, you can dare, you can plan, you have joy in your existence, that's the meaning of the law....

More from Matt Franck over at Bench Memos, who also beat me to it.

Posted in SCOTUS —

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Posted at 7:40pm on Aug. 7, 2006 Justice Kennedy speaks on the mystery of life, his importance, etc.

By feddie

Go grab a barf bag, and then click here and here.

Selected "pearls" of excrement from the "greatest" of our robed masters:

"[The founders gave judges life tenure] because they were confident that the process of reason, the slow elaboration of the principles of justice through the case-by-case method was the surest way to interpret the Constitution."

"[The founders] knew that the whole purpose of a Constitution is to arise above the inequities and injustices that you can't see."

"We know that truth needs no translation."

"Our only security is in the world of ideas."

(more quotes and snark below the fold)

Posted in SCOTUS —

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Posted at 2:46pm on Aug. 7, 2006 Bolton committee vote delayed until September

By Jeff Emanuel

But both UN, America need John Bolton confirmed

Last week, the Senate Foreign Relations Committee held its second hearing in as many years on the nomination of John Bolton as permanent representative to the United Nations. Much like last year, the man who is President Bush's choice to be America's voice at the United Nations is facing strong partisan opposition. Bolton's fate is uncertain. He's serving the one-year term of a recess appointee; thus, he will be out of a job at the end of the year if Senate Republicans cannot garner the votes to prevent a Democrat filibuster. An early setback has already been dealt, as, at the behest of the anti-Bolton minority, the committee vote on his nomination was pushed back to September.

Read on below the fold...

Posted in 2006 Senate Races —

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Posted at 10:45am on Aug. 7, 2006 SCOTUS Nominations an Issue in Hawaii

By AndrewHyman

In some states, Supreme Court nominations are an issue in the 2006 Senate races. For example, the Democratic Senate candidates in Hawaii have different views on the subject. The Honolulu Advertiser has an article titled "Criteria differ on judging justices," by Derrick DePledge. Both candidates want to know a nominee's personal opinions. Here's part of the article:

Akaka [the Dem. incumbent] and Case [the Dem. challenger] .... differ over how much a nominee's personal opinions should match their own .... Akaka said he keeps an open mind but would likely reject nominees who oppose abortion rights or have an uneven record of defending civil rights and individual privacy .... Case said he wants to know what a nominee thinks about abortion rights, civil rights and privacy but said no single issue would likely determine his vote.

How about keeping personal opinions out of the nomination process? How about just considering whether a nominee will apply the law as intended, will leave other issues to other branches of government, and will only strike down statutes that clearly violate the Constitution?

By the way, the DePledge article doesn't mention the leading GOP candidate: Jerry Coffee. Here's some background from Wikipedia about the Hawaii race. Hat Tip: How Appealing for the DePledge article.

Posted in SCOTUS —

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Posted at 8:00pm on Aug. 6, 2006 Pardon the Dust

By krempasky

Welcome everyone to the new ConfirmThem. We'll have lots of updates for you in the coming days as we scramble to get everything polished up and presentable. First - many, many thanks to RedState technology wizard Clayton Wagar. He's been an absolute machine getting this all put together.

Second - and VERY important: to comment and participate at the new ConfirmThem, you'll need to get a RedState account. It only takes a moment - just click on the "new user" button up there on the right. If you already have an RS userid, you can use that. (BUT - Click here for the details on using an existing account.) The best part? You can use that login for every RedState network site, the accounts are consistent.

Finally - thank you to Andrew Hyman and all the ConfirmThem contributors. They, along with the community - make this site one of the best destinations for people who care about the judiciary and its impact on the country.

In the meantime - use this thread to share your thoughts & feedback on the new site - but if you need specific technical help, you can open a ticket here.

UPDATE: We're seeing some database hiccups. If you submit a form - whether a comment or story - and get a blank screen...DON'T re-submit. The database is catching it, just not properly showing the next page. We're working to resolve it, and thanks for your patience.

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Posted at 3:15am on Aug. 4, 2006 Nominations of Myers, Boyle, and Smith Returned to the President (UPDATE: Haynes and Wallace Returned Too)

By AndrewHyman

The U.S. Senate went on recess very early this morning, until September 5. But immediately before adjourning, the Senate returned the nominations of William Myers, Terrence Boyle, and N. Randy Smith to the President. (UPDATE: Haynes and Wallace nominations returned too.)

Hat tip to Cboldt for this very unusual news. Senator Frist announced that all three of these nominations were being sent back due to objections from the minority. Doubtless, the minority wanted to prevent any of these nominees from being voted on by the full Senate, as had been planned for September.

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Posted at 6:56pm on Aug. 3, 2006 Fifth Circuit Forces Delay to Remain on Ballot

By AndrewHyman

Today, a federal appeals court decided that Tom Delay cannot constitutionally be replaced on the Texas ballot. I mention this at confirmthem for a couple reasons. First, a prospective SCOTUS nominee --- Edith Brown Clement --- joined the decision. Secondly, some aspects of the decision seem difficult to distinguish from a case involving an incumbent Senator, namely Frank Lautenberg.

The courts allowed Lautenberg to replace Robert Torricelli in 2002, and I'm having some difficulty understanding why it was constitutional then, but not now. Neither Torricelli nor Delay wanted to remain on the ballot, and they both wanted to be replaced by someone else. Seems to me that this decision today should have focussed on state law rather on the Constitution.

UPDATE: Even if Delay would lose under state law, keep in mind that state election law can be changed by state lawmakers at any time.

UPDATE #2: The Texas GOP has dropped its plans to appeal to SCOTUS, after Justice Scalia denied a stay. Subsequently, Delay withdrew from the race, and here's his withdrawal statement.

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Posted at 3:25pm on Aug. 3, 2006 Third Branch Conference Assails Pace of Confirmations

By AndrewHyman

THE LEAST ACCOMPLISHED CONGRESS ON JUDGES

Conservative Coalition Launches August Radio Campaign on Judges

Washington, D.C. - The Third Branch Conference, a coalition of grasstop leaders nationwide working to improve the federal courts, today expressed disappointment with the Senate GOP leadership for failing to move the confirmations of Terrence Boyle, William Myers, and Jim Haynes.

"On judges, this is the least accomplished Congress in three decades," said Manuel Miranda, TBC chairman and former nominations counsel to Majority Leader Bill Frist. "The delays on Boyle, Myers, and Haynes are unprincipled and hamfisted. They are putting their majority at risk by not showing Bush voters what remains at stake," he added.

"We will now take this message to the radio through August," Miranda announced. "The problem lies with the Senate, not the White House."

Today with 50 confirmations, the 109th Congress has confirmed the fewest judges than any Congress since 1973-1974, in the shadow of the Watergate presidency. The last time the Senate confirmed two Supreme Court nominations (1993-1994, 103rd), they also confirmed 127 other Clinton-appointed judges. The last time that a Congress (1985-1986, 99th) confirmed two Supreme Court justices in the first two years of a second term president, with the same party controlling the WH and the Senate, they also confirmed 129 other Reagan-appointed judges.

According to John Lott of AEI, the President's circuit court confirmation rate remains the lowest of any president in recent times. Today it is 73.1 %. By comparison Reagan's was 89.4%, also with two years of an opposing party controlling the Senate. The length of confirmation delays is even more telling. Under the GOP's current leadership, the length of confirmation delays in days is:

Bush II 382

Clinton 231

Bush I 92

Reagan 68

Carter 70

This year three Bush circuit nominees have been waiting in the Senate for years under silent, dishonest filibusters, one other had to withdraw in March because of Senate inaction, bringing the number of actively defeated Bush circuit nominations to three (and arguably more). So three defeats (Estrada, Kuhl and Saad), and three silent filibusters (Boyle, Myers, and Haynes).

For More Information

Call Manuel Miranda

202-262-7789

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Posted at 1:44am on Aug. 2, 2006 Specter Urges Senate to Reject ABA Report on Wallace

By AndrewHyman

Previously, we mentioned that the ABA's report on Fifth Circuit nominee Michael Wallace has come under intense scrutiny. Now, Megyn Kendall of Fox News reports:

On Tuesday, Specter circulated a letter to the Judiciary Committee, which was meeting on other nominations, urging it to reject the report --- an unprecedented move. Specter will also urge the Committee to request a new ABA report from a panel of unbiased lawyers. Specter also wants the ABA to identify all of its sources --- to name the people attacking Wallace --- something the Chairman says he'll now push for in every ABA report. "I do not think they oughta be anonymous if we're to base a Senate judgment on them. It does not give the nominee a chance to defend himself." The Judiciary Committee will convene on Thursday to discuss these and other concerns, and in the mean time Wallace's confirmation hearings have been pushed back until September....

Hat Tip: GG.

UPDATE: More from Bashman.

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Posted at 1:13pm on Aug. 1, 2006 Keisler Hearing at 2 PM

By AndrewHyman

On July 27, the Democratic members of the Judiciary Committee wrote a letter requesting a delay in this afternoon's hearing. They said that "the Amercian Bar Association has not even yet completed its evaluation of the nominee." However, that evaluation was completed on July 31. You can listen to this afternoon's hearing via this site (UPDATE: video is here).

Hat Tip: How Appealing for the info about the letter.

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Posted at 11:42am on Aug. 1, 2006 WaPo Corrects Kennedy

By AndrewHyman

There's a correction in today's Washington Post to Sen. Kennedy's sloppy op-ed from Sunday.

Hat Tip: AEDPA.

UPDATE: Villainous Company also notes the correction, and adds a few thoughts about Kennedy's piece.

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Posted at 11:30am on Aug. 1, 2006 Tobias Seeks Vengeance

By AndrewHyman

Law professor Carl Tobias has an op/ed in the Roanoke Times, urging that North Carolina be punished for having elected Jesse Helms:

It was the stubborn opposition of North Carolina senators, especially Sen. Jesse Helms, to judicial nominees from North Carolina whom various presidents tendered that created the present situation whereby North Carolina has only a single active 4th Circuit judge....The [Virginia] senators must be especially vigilant to thwart the endeavors of the North Carolina senators, who are urging the president to appoint a North Carolinian.

Although Tobias may wish to instigate conflict between Virginia and North Carolina senators, I hope that rational heads will prevail. Tobias quotes Burr and Dole as saying that, "Based upon this [population] guidepost, one would expect North Carolina ... to be assigned four or five of the circuit's 15 judicial seats." Mr. Tobias wants North Carolina to instead have only one seat. He is a professor in Richmond, wouldn't you know. If a nominee's state of residency is relevant at all, then surely the population of the state is important to determine how many seats should be assigned to it.

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Posted at 3:18pm on Jul. 31, 2006 Wallace

By AndrewHyman

As you may recall, Fifth Circuit nominee Michael Wallace was rated "unqualified" by the ABA. But now Ed Whelan over at Bench Memos has received and reviewed the statement that the ABA Standing Committee on Federal Judiciary submitted to the Senate Judiciary Committee. Whelan doesn't find anything there to justify the rating.

Update below the fold.

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Posted at 3:01pm on Jul. 31, 2006 Some More About that Roll Call Article

By AndrewHyman

Here's some more about that Roll Call article mentioned in my previous post. The author is Erin P. Billings. She reports this about Judge Boyle:

Boyle, who also has been nominated to the 4th Circuit, arguably is the most inflammatory appointment of the four because of the frequency of his previous rulings being reversed and allegations of conflict of interest.

Regarding the allegations of conflict of interest, perhaps Roll Call could supply some context, instead of just republicizing these trivial accusations.

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Posted at 2:23am on Jul. 31, 2006 Monday Morning Notes

By AndrewHyman

Andy Card's talking about the Miers nomination, in Newsmax.

Newsweek has an article titled, "A Gang Under Siege; They were 'saviors of the Senate.' But the Gang of 14 may pay a price at the polls."

And, Jeffrey Lord has an open letter to Senator Kennedy, in the American Spectator. Lord asks:

How about resigning from the Senate Judiciary Committee? Now THAT would be a big step forward in restoring the process that you yourself believe was working when you first took your seat in one of those leather swivel chairs 43 years ago.

To think that my first vote was for that guy. (It was a long time ago. Don't tell anyone.) Update below the fold.

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Posted at 12:37pm on Jul. 30, 2006 CJ Roberts, the NY Times, Wittes, and Adler on Confirmation Hearings

By AndrewHyman

Can it be different? Of course it can be different. If there are serious questions about qualifications, senators should explore those. If there are serious questions about ethics, senators should explore those. If there are disputes about appropriate judicial philosophy and approach, talk about those. But barring that . . . everybody doesn't have to think that this is an opportunity for them to be the reincarnation of Clarence Darrow.

---Chief Justice John Roberts (Jan. 13, 2006).

[I]f this line of questioning were to be followed further any candidate for the federal judiciary would have to satisfy the majority of the Senate Judiciary Committee that he was in line with that majority's view.

---New York Times (Feb 27, 1955).

These two quotes are from an op/ed by Benjamin Wittes today in the Washington Post. (Those of you with photographic memories may recall that Wittes was discussed by Senator Sessions during the Roberts hearings.) In his op/ed today, Wittes urges that televised confirmation hearings be ended:

It is time to end this failed experiment. Nominees need not bare their souls as a condition of judicial confirmation. Of course, ending nominee testimony would not cure all the ills of the modern confirmation process. It would not eliminate mischaracterizations of a nominee's record or the undue weight of interest groups. It would accomplish only one thing: It would remove that one televised moment when senators name the price of their votes.

Jonathan Adler comments on this proposal by Wittes:

The only real hope is for a majority of Senators to endorse a set of neutral procedures that will take effect after an intervening election -- preferably one far enough in the future that the outcome is indeterminate (e.g. an agreement in early 2007 to take effect in January 2009).

A statute would be much easier to pass than a Senate rule change. And in my opinion, the spectre of a perpetual minority filibuster is a much bigger problem than public confirmation hearings. William Myers, for example, is now in the third year of a Senate filibuster, and no such thing ever happened during centuries past. Additionally, if the opportunity for a minority to kill a nomination were eliminated, then there would be much less incentive for the minority to abuse the hearing process (though the majority could still do so).

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Posted at 1:46am on Jul. 30, 2006 Sunday Open Thread

By AndrewHyman

Anyone have anything to say?

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Posted at 12:43pm on Jul. 29, 2006 Howard Bashman and Ted Kennedy on Judicial Confirmations

By AndrewHyman

This morning, the wonders of the internet bring us two essays about the judicial confirmation process: one reasonable essay by Howard Bashman, and one essay from Sen. Edward Kennedy that is less so.

Bashman's essay at Law.com is titled "Could Increased Openness in Judges' Decision-Making Depoliticize Confirmations?" Here's a snippet:

Instead of asking judicial nominees at their confirmation hearings to reveal personal views on abortion, the death penalty, racial preferences and so forth, perhaps the confirmation process could focus on more important questions, such as how a nominee would go about deciding the meaning of an unclear constitutional provision or a piece of legislation, the level of constitutional specificity required to override the majority's expression of its wishes through the legislative process, and the nominee's plans for addressing a crushing appellate caseload.

Meanwhile, Senator Kennedy's essay in the Washington Post is titled "Roberts and Alito Misled Us." From that title, one might think that Kennedy is having second thoughts about having voted against (and having attempted to filibuster) those two nominees. But, no, Senator Kennedy is instead arguing that the voting record of Justice Alito and Chief Justice Roberts "reflects ... an activist's embrace of the administration's political and ideological agenda." As you may recall, that was Kennedy's mantra from the day they were nominated, and maybe even prior to that.

Sen. Kennedy complains that, "Many Republican senators used their time to praise, rather than probe, the nominees." Presumably, Senator Kennedy wants to somehow prevent such misuse of time by Republican senators, in the future.

Sen. Kennedy's first example of how Roberts and Alito "misled us" focusses on Chief Justice Roberts's partial dissent (joined by Justice Alito) in the case League of United Latin American Citizens (LULAC) v. Perry which involved Texas's 2003 redistricting plan. Here's how Linda Greenhouse of the New York Times summarized this case:

Justice Kennedy's rejection of the statewide gerrymander challenge, brought by Texas Democrats and others, had the support of a majority of the court for his conclusion, but not for his analysis. Justices Antonin Scalia and Clarence Thomas agreed because they believe, as they said in a case from Pennsylvania in 2004, that claims of partisan gerrymandering were categorically invalid and could never be considered by a federal court. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. took no position on whether such claims could ever be brought. With that proviso, they said Justice Kennedy had resolved the issue correctly in this case, League of United Latin American Citizens v. Perry, No. 05-204.

Sen. Kennedy seems primarily concerned with Part III of the Court's opinion, which prompted the partial dissent from Roberts. In Part III, the Court assumed that Texas's "Plan 1374C provides something close to proportional representation for Latinos" but nevertheless the Court struck down Plan 1374C. Roberts disagreed with that. SCOTUSBlog has a summary of the myriad opinions in that case, here, including this about Part III of the Court's opinion:

Part III -- a new District 23 designed to salvage a seat for Republican Rep. Henry Bonilla is illegal under the Voting Rights Act's Section 2, because it dilutes the votes of Latinos in the former district; the invalidation of District 23 probably also necessitates a redrawing of District 25 because that was crafted to make the new 23 work legally. The vote is definitely 5-4. Kennedy has the explicit support, according to the Court, of Breyer, Ginsburg, Souter and Stevens. He does not have the support of ... Scalia and Thomas, because they reject all Voting Rights Act challenges, and the Chief Justice and Alito note their explicit dissent from this Subpart.

Oddly, Sen. Kennedy criticizes Roberts for saying that it "is a sordid business, this divvying us up by race." Does Kennedy think that the Senate should make sure future nominees have no problem divvying up the country by race? So it would seem. Instead of making such bizarre assertions, Sen. Kennedy might acknowledge (and perhaps apologize for) what Justices Stevens and Breyer condemned as "the Texas Democratic Party's sordid history of manipulating the electoral process to perpetuate its stranglehold on political power." Stevens and Breyer also noted this: "In a characteristically thoughtful opinion written by Judge Higginbotham, the District Court ... rejected all challenges to the constitutionality of Plan 1374C." Chief Justice Roberts can hardly be faulted for agreeing with Judge Higginbotham on that constitutional point, along with at least three other Justices.

Senator Kennedy's op/ed today in the Washington Post then moves along to an assisted suicide case: Gonzales v. Oregon. Says Sen. Kennedy, "The same Roberts who wished the federal government would leave Texas alone was unconcerned by federal intrusion into Oregon's approach to the issue of assisted suicide." Is this some horrible inconsistency? Must a judge who believes there are limits to a federal agency's power also believe that the federal government has no power at all? Sounds more than a mite simplistic to me. But Sen. Kennedy insists that, "It is difficult to believe that a neutral judicial philosophy explains Roberts's very different views in these two cases." Well, considering that the cases dealt with interpretation of completely different statutes, why on Earth would Sen. Kennedy expect outcomes that are perfectly identical?

Sen. Kennedy goes on about the assisted suicide case: "Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were 'unquestionably permissible' because the federal government can use the Constitution's commerce clause powers 'for the purpose of protecting public morality.'" Sen. Kennedy is just speaking nonsense here. Does he seriously believe that the federal government's power to regulate commerce must not be guided in any way by morality or ethics? For example, if our federal government thinks that a foreign government is waging an immoral war against its own people, then our federal government may not limit arms exports to that foreign government? Give me a break. There is nothing in the Commerce Clause that forbids Congress from enacting regulations based upon moral considerations. Not a single justice in this case (Gonzales v. Oregon) agreed with Sen. Kennedy that the federal government cannot use the Constitution's commerce clause powers for the purpose of advancing morality. This case was about the proper interpretation of statutes and regulations, and not about the scope of the Commerce Clause. As the Court put it:

Even though regulation of health and safety is "primarily, and historically, a matter of local concern," Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985), there is no question that the Federal Government can set uniform national standards in these areas. See Raich, supra, at ___ (slip op., at 6). In connection to the CSA, however, we find only one area in which Congress set general, uniform standards of medical practice.

Finally, Sen. Kennedy addresses Rapanos v. United States, in which the court was asked to interpret the definition of wetlands under the Clean Water Act. Sen. Kennedy accuses Roberts and Alito of joining an opinion that describes wetlands as "transitory puddles." But Kennedy has taken the justices completely out of context. Here is what the opinion actually said:

"[S]treams," connotes a continuous flow of water in a permanent channel--especially when used in company with other terms such as "rivers," "lakes," and "oceans." None of these terms encompasses transitory puddles or ephemeral flows of water.

Does Sen. Kennedy really want us to believe that Roberts and Alito misled the Senate by not volunteering during their hearings that the Mississippi River is different from a "transitory puddle"?

Anyway, that covers the first page of Kennedy's op/ed. Maybe if I have the time and energy, I'll write something about the second page later. Or maybe you already get the idea.

UPDATE: Matthew Franck, over at Bench Memos, is unpersuaded that Senator Kennedy was misled. And, over at Volokh Conspiracy, Jonathan Adler suspects Franck goes too easy on Kennedy.

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Posted at 8:22pm on Jul. 28, 2006 Keisler Hearing on Tuesday, August 1

By AndrewHyman

So says the Senate web site. Hat Tip: Tony Kostelecky.

Regarding whether judicial nominations may become a campaign issue in 2006 (see immediately preceding post), I agree with Jonathan Adler that the issue has diminished somewhat since 2004, but in my opinion it still is potent. Senators like Menendez and Stabenow can certainly be held accountable for their attempted filibuster of Justice Alito. Also, if the GOP would force votes on nominees like Boyle, Myers, and Smith then voters will be able to see where senators stand. Maybe few voters would care if a judicial nomination is stalled for fifteen years, but they ought to care. That kind of thing is discouraging qualified nominees from accepting nominations, plus it's just plain rude.

Even from an "inside baseball" point of view, it's important to force votes on stalled nominees in order to determine if the minority still intends to perpetually filibuster qualified nominees. If so, then it will be clear that the next GOP Senate Majority Leader should again reserve the right (at the beginning of the next Congress) to modify Senate Rule 22 by simple majority vote.

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Posted at 3:34pm on Jul. 28, 2006 Could Judicial Nominations Be a Campaign Issue?

By AndrewHyman

Jonathan Adler notes over at Bench Memos: "It is outrageous that Terrence Boyle has waited so many years for a simple up-or-down vote, but the mistreatment of one or two nominees does not make a campaign issue." Oh, I think it does. The voters in the states of Washington, or Michigan, or New Jersey would not appreciate if Senator Cantwell, or Senator Stabenow, or Senator Menendez says to people like Boyle:

YOU PEOPLE SHOULD CONSIDER YOURSELVES LUCKY THAT I'M GRANTING YOU AN AUDIENCE TOMORROW INSTEAD OF 20 YEARS FROM NOW.

Like the Wizard of Oz threatened to do, these Senators (and others) have dragged Boyle's nomination out for fifteen years without granting him a vote.

Cantwell, Stabenow, and Menendez aren't even in the majority --- it's like a few Flying Monkeys bossing around all of the Munchkins.

Today is Friday, and profound legal analysis has given way to goofy cinematic references. Everyone have a great weekend.

Posted in Circuit Courts —

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Posted at 12:36pm on Jul. 28, 2006 Let's Have a Statute

By AndrewHyman

Professor Aaron-Andrew P. Bruhl at the University of Houston Law Center has an article out titled, "If the Judicial Confirmation Process is Broken, Can a Statute Fix It?" (July 27, 2006), available at SSRN. It's a draft article, and the author is accepting comments.

A statute is one of several traditional means to amend the Senate rules, and one possible advantage is that it only requires three-fifths of the full Senate to overcome a filibuster of the rule-change, instead of requiring two-thirds of senators present. Statutory changes in the Senate rules usually include a disclaimer stating that the Senate reserves the right to unilaterally change the rules again, but this ability is inherent in the Senate's constitutional powers anyway.

In 2003, the Senate Rules Committee approved Senate Resolution 138, which would have changed the Senate Rules to place a cap on debate over judicial nominations. This resolution has since vanished down the memory hole without ever having been debated on the floor of the Senate, and without senators ever having gone on record supporting the proposal or opposing it. Why not try implementing S.Res. 138 via statute, before proceeding to use the constitutional/nuclear option again?

Hat Tip: How Appealing.

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Posted at 5:43pm on Jul. 27, 2006 Keisler Update

By Dave II

According to Hugh Hewitt's interview with fellow traveler Sen. Kyl yesterday, D.C. Circuit nominee Peter Keisler will be given a hearing before the August recess. So, sometime next week then? Kyl said that he really hopes Keisler will get confirmed by the end of September, though he was not optimistic about Haynes. He said he simply was not up to date on the progress of getting Boyle a vote. I interpret that as he doesn't know the latest on whether those holding him up have been softened up yet from the new information getting out to the public. But things may be in the works. Who knows?

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Posted at 3:50pm on Jul. 27, 2006 Moore Out of Committee, Kyl Says 2 GOP Senators Blocking Haynes

By AndrewHyman

Here's an interview that Sen. Kyl did with Hugh Hewitt today. Hat tip to bk. The news about the Moore nomination is provided by Mose.

UPDATE: Surprisingly, Moore appears to have been reported out unfavorably. Hat Tip: John. However, this may be a printing error in the Senate Calendar, since the other two nominees on that page were also said to have been reported unfavorably. Moore's faculty bio is here.

UPDATE #2: The Senate Calendar has now been fixed. Moore was not reported out unfavorably.

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Posted at 10:47am on Jul. 27, 2006 Remember Judges?

By feddie

That's the question posed by Sean Rushton over at NRO today. Here's a taste:

This November will be the first election year since 2000 that no significant Senate debate over judicial confirmations will spark a voter response. If Senate leaders do not rethink their strategy, fewer voters will be considering judicial confirmations when they vote for Senate candidates on November 3rd. It is a huge mistake. It is an avoidable mistake.

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Posted at 3:19am on Jul. 27, 2006 "Republicans Inexplicably Losing Momentum on Judicial Choices"

By AndrewHyman

The estimable Robert Novak reports that there are mixed signals about whether further nominees will be forthcoming this summer from the White House:

Justice Department officials have quietly passed word that Senate Majority Leader Bill Frist advised it was too late in the year for new nominees. When I checked, Frist unequivocally denied that. Perhaps the Justice officials misunderstood Frist aides who have argued that if the White House dawdled, there would be no time for confirmation....

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Posted at 12:40am on Jul. 27, 2006 Back in Town ... For Now.

By Dave II

Just got back into D.C. after taking the Virginia Bar Exam yesterday and today in tiny Salem, VA. Beautiful drive though. I will have to wait until November to find out if I'm "minimally competent to practice law in Virginia." I hope I am, but that was a hard test, and I would never want to go through it again. After a few days here I will return to my home-state of Texas to await assignment by the Air Force JAG.

But don't worry, you'll still find me here throughout it all. I've got to get updated---haven't gotten to read the amazing Washington Supreme Court decision on gay marriage--but I was pleased that Holmes was confirmed. With his confirmation, Bush has now appointed half the judges on the Tenth Circuit. That's the biggest influence Bush has exercised on any one Circuit, next to the Eighth. When Moore gets confirmed, the Senate will actually have confirmed more Circuit judges this year then they did in 2005, when the logjam was supposedly broken by the ever helpful Senator McCain. Hard to believe, but it is.

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Posted at 6:00pm on Jul. 26, 2006 Putting the Boyle Allegations in Context

By AndrewHyman

Senators Frist and Specter yesterday forwarded to other Senators their correspondence with Judge Boyle regarding recusal errors. Frist and Specter say that Judge Boyle's letter explains and refutes the allegations, "and puts them into context." However, due to his position as a nominee, I don't think that Judge Boyle was able to fully put the allegations into context, and so I'll do the honors, without repeating any of the contextual points that Judge Boyle made.

First of all, here is what the U.S. Supreme Court has said on this subject, in LILJEBERG v. HEALTH SERVICES ACQUISITION CORP., 486 U.S. 847 (1988):

A conclusion that a statutory violation occurred does not, however, end our inquiry. As in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance. There need not be a draconian remedy for every violation of 455(a). It would be equally wrong, however, to adopt an absolute prohibition against any relief in cases involving forgetful judges.

Harmless, inadvertent errors by forgetful judges should not require draconian treatment.

Secondly, it's important to keep in mind that even the best people have made recusal errors. Such errors have been made by people like circuit judges Kozinski, Batchelder, Manion, Becker, Arnold, Lynch, Selya, and Silberman. Also, people like Supreme Court Justice Ruth Bader Ginsburg. Also, people like circuit judges Clay, Daughtrey, Dennis, and Coffey. Also, people like Circuit Judge Harry Pregerson. This is not to excuse such errors, but merely to point out that judges are human.

Thirdly, it's worth recognizing that ANY violation of law is at least technically a violation of judicial ethics. After all, the canons of judicial conduct say that, "A judge should respect and comply with the law." So, putting insufficient stamps on an envelope, jaywalking, and getting a parking ticket are all violations of judicial ethics. That is not to trivialize recusal errors, but rather to point out that some violations of judicial ethics are bigger than others.

Fourthly, it's pertinent to point out the source of these allegations. A reporter named Will Evans of an organization called the Center for Investigative Reporting (CIR) is the source. It may be coincidence that the allegations by Mr. Evans lacked any context whatsoever. But consider this report about the connection between George Soros and Mr. Evans's organization:

Except for some payments to two columnists, Abramoff tried to influence politicians. Soros has a far more impressive record of influencing the press. Soros has put some of his massive fortune into press groups like Investigative Reporters & Editors (IRE), the Fund for Investigative Journalism, and Center for Investigative Reporting.

In other words, journalists can have conflicts of interest too, and big ones at that.

Hat Tip: Bashman.

UPDATE: Speaking of context, it's worth mentioning also that the notoriously liberal American Bar Association took a look at these recusal allegations, and decided to still rate Judge Boyle as "qualified."

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Posted at 2:20pm on Jul. 26, 2006 Judiciary Committee Meeting Tomorrow

By AndrewHyman

The Senators will probably vote on the Moore nomination, and may also consider a proposal to subpoena the ABA.

Hat Tip: GG.

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Posted at 11:33am on Jul. 26, 2006 WSJ v. ABA

By AndrewHyman

The Wall Street Journal has an editorial today titled, "An ABA Hit Job;

Political payback against a judicial nominee." Take a look at the whole editorial, or at least these parts:

In March 2001, barely two months after taking office and two months before announcing his first judicial nominees, President Bush told the American Bar Association to buzz off. Specifically, Mr. Bush ended the tradition of providing the ABA's Committee on the Federal Judiciary with the names of nominees before they were made public. The ABA would still evaluate candidates for the federal bench, but it would do so from a status more consistent with the role it plays--that of a political interest group.

Too bad Mr. Bush didn't go all the way and cut out the ABA entirely. Instead, the lawyers' lobby retains a special role as the only national organization authorized by the Administration to interview judicial nominees. And when it has given a favorable rating to a Bush nominee, the Administration has been only too happy to shout it from the rooftops.

Enter Michael Wallace. Anyone who still clings to the fiction that the ABA can be counted on to provide professional evaluations of judicial nominees without regard to politics should take a look at the current squabble over Mr. Wallace, whom Mr. Bush has nominated for the New Orleans-based Fifth Circuit Court of Appeals. In May the ABA panel rated Mr. Wallace as "unanimously not qualified" for the federal bench....

But here's the real disqualifier: During the Reagan and George H.W. Bush Administrations, Mr. Wallace served on the board and then was chairman of the federally funded Legal Services Corporation, whose ostensible mission was to provide legal help for the poor but which was a haven for liberal legal activism.

Mr. Wallace's efforts to reform the LSC had many critics, among them an attorney by the name of Michael Greco. Another opponent was the then-president of the New Hampshire bar, Stephen Tober, who accused him of having a "political agenda" at one particularly contentious hearing. Mr. Greco is now president of the ABA, and Mr. Tober is chairman of the ABA committee that nixed Mr. Wallace. Mr. Wallace's reforms were adopted, and now it's apparently payback time.

Meanwhile, an email from the Third Branch Conference states:

At 51 confirmations in this Congress, we have 7 more to go before we surpass 1973-74, during the Watergate presidency. And then the Senate will have the fewest confirmations since the Carter administration. Hey, everyone needs a goal.

Look for September to be an especially interesting month, if the logjam doesn't break by then.

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Posted at 11:16pm on Jul. 25, 2006 Freepolitic's first story

By administrator

Freepolitic's first body

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Posted at 10:29pm on Jul. 25, 2006 Senator Frist Blogs About Judges

By AndrewHyman

Check it out, here. You can also leave comments for Sen. Frist:

Comments are moderated to prevent profanity, to maintain a minimum of civility and to ensure relevance to the issue discussed in the blog post. If your comment stays within these bounds, it will be posted regardless of your praise or criticism of Senator Frist. Please allow time for your comments to be approved.

I wish I had time to do that at confirmthem, but most of our comments turn out to satisfy those standards anyway. Don't go and prove me wrong now.

Hugh Hewitt interviewed Dr. Frist today, including talk about judicial nominations. See here.

Hat Tip: AC for the Hewitt interview.

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Posted at 6:31pm on Jul. 25, 2006 Story Title by Clayton

By administrator

Story Body by clayton

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Posted at 2:57pm on Jul. 25, 2006 Conservative Leaders Support Nominee

By AndrewHyman

We got word today that the Third Branch Conference (TBC), a coalition of "grasstop" leaders, today delivered a letter to Senate GOP leaders and Senator Ben Nelson calling for action on Judge Terrence Boyle. This letter appears to mark the first time that those organizations have joined to support a Bush circuit court nominee pending before the full Senate. The letter addresses specific cases that have been used to create concern over Boyle's 20-year judicial record. Confirmthem has already addressed some of those cases, here.

According to TBC Chairman Manuel Miranda, "The opposition to Boyle is about trial lawyers and their profits, the rest is all smoke and mirrors....The question now is whether GOP leaders have any fight left to do the right thing." Here's the full text of the letter. If nothing else, go to the end and see the list of signers.

THIRD BRANCH CONFERENCE

July 25, 2006

The Hon. John McCain

The Honorable William H. Frist, M.D.

The Honorable Mitch McConnell

The Honorable Rick Santorum

The Honorable Jon Kyl

The Honorable Kay Bailey Hutchison

The Honorable Elizabeth Dole

The Honorable Richard Burr

The Honorable Ben Nelson

and copied to all Majority Senators.

....

Dear Senators:

We write this unprecedented letter in support of Judge Terrence W. Boyle's confirmation to the Fourth Circuit Court of Appeals. This is the first time that a coalition of organizations has joined in one letter to request a vote for a single Bush circuit court nominee. Together we represent millions of members and constituents.

We ask that you join our members in supporting Judge Boyle's nomination and vote to confirm Judge Boyle immediately, without any further delay. While Judge Boyle is the longest waiting nominee of President George W. Bush, for no good reason in fact he has waited 14 years. He was first nominated by President George H.W. Bush and never given a hearing by Democrat Judiciary Committee Chairman Joe Biden.

Three Republican presidents have now nominated Judge Boyle repeatedly, beginning with Ronald Reagan.

Throughout the unprecedented delay in Judge Boyle's confirmation process, he and his family have no doubt endured much. Such treatment and delay by the Senate does great harm to the ability of any president to recruit good men and women to serve on the federal judiciary. This harms the criminal justice system.

We take this opportunity to address a particular aspect of the opposition mounted by Democrats against Judge Boyle.

Judge Boyle's opponents would make it seem that his nomination is opposed by the law enforcement community. It is not. Moreover, law enforcement employment unions do not speak for victims or citizens affiliated to support law enforcement.

Judge Boyle's detractors represent a small minority and the basis for opposition has more to do with employment trial lawyer cases than with law enforcement. This is not unusual for nominees for the 4th Circuit, which produces more ÃÂcivil rightsî employment law cases than any other circuit.

You will recall that 4th Circuit Judge Dennis Shedd was blocked by opposition from employment trial lawyers, represented at the time by Senator John Edwards.

Whether they attack a nominee through environmental groups they fund, as with William G. Myers, or through the special interest groups that front for them, as with Judge Priscilla Owen and so many others, behind every obstruction of a Bush nominee we believe that you will mostly find the organized trial lawyer lobby, and the opposition to Judge Boyle is not the exception.

In fact, Judge Boyle has a remarkable record of making the safety of law enforcement and the American public one of his top priorities.

In his 22 years of service on the federal bench, Judge Boyle has developed a proven track record of respect for and protection of those in law enforcement, and it is for this reason that we strongly support his confirmation.[Footnote 1]

We believe that blocking a judicial nomination on political grounds, particularly utilizing the personal attack tactics now being employed, is an injustice. Moreover, it harms the criminal justice system because it makes the recruitment of sound judicial nominees more difficult.

We wish, therefore, to address the concerns raised about Judge Boyle regarding law enforcement.

As we have noted in the vast majority of cases relied upon by opponents, opposition groups implicate law enforcement officials on both sides. Moreover, the cases cited most often by Judge Boyle's detractors are not cases that involve core law enforcement issues, but rather litigious issues stemming most often from an officer who has been reprimanded for inappropriate or impermissible behavior.

Law enforcement officials do not relinquish all of their rights as citizens when they enter the precinct station. However, the needs of maintaining good order and discipline and public confidence in the role of police officers in society is paramount. As a result, just as in any military unit, police officers are held to a different, more regimented standard of conduct than ordinary citizens. It is within this framework that the cases cited by Judge Boyle's detractors must be viewed.

Below, we examine six cases that are uniformly cited by opponents as evidencing Judge Boyle's purported hostility to law enforcement and first responders. We trust you will find, as we have, that the opposition, at best, miscomprehends and, at worse, intentionally mischaracterizes the holdings and/or posture of these cases.

1. Kirby v. City of Elizabeth City, No. 2:01-CV-BO(3) (E.D.N.C. August 8, 2003), aff'd 380 F.3d 777 (4th Cir. 2004)

Plaintiff Kirby, a police officer in Elizabeth City, NC, sued the City after being suspended and reprimanded by his employer for testifying at a fellow officer's disciplinary hearing, wherein he provided testimony that was critical of the police department. Among other things, Kirby testified about the "maintenance history of a single patrol car" and the "driving habits of a single officer." Judge Boyle dismissed Kirby's claims on summary judgment. This ruling has prompted Judge Boyle's critics to proclaim he is hostile to law enforcement and unable to apply established precedent. They go so far as to say that "Judge Boyle stands in the doorway of civil rights for police officers," that in Kirby, he "ruled that police officers can be disciplined for truthfully testifying against the police administration," and, most ludicrous, that he has "licensed police managers to retaliate against testifying officers." Not true.

First, the pivotal issue in this case was not a core law enforcement concern, but, rather, a question of whether Kirby's testimony touched on a matter of "public concern" and was, therefore, protected speech. Kirby was disciplined for disobeying a department directive. Judge Boyle applied established Fourth Circuit precedent in ruling that Kirby's testimony referenced above was not of "public concern" as that term is widely understood. Moreover, the Fourth Circuit Court of Appeals agreed, unanimously affirming the ruling. The Supreme Court saw no error in Judge Boyle's ruling and denied Kirby's Petition for Writ of Certiorari.[Footnote 2]

2. Edwards v. City of Goldsboro, No. 5:96-CV-448-BO(2) (E.D.N.C. October 20, 1997).

The plaintiff in Edwards was suspended and placed on probation after disobeying a lawful, direct order from his police chief prohibiting secondary employment teaching weapons training courses during off-duty hours. Edwards brought a lawsuit against the City, the Police Chief, and the City Manager containing seventeen (17) causes of action under federal and state law. Edwards alleged violations of his free speech rights, Second Amendment right to bear arms, right to privacy, procedural due process rights, substantive due process rights, equal protection rights, deprivation of occupational liberty interests, right to academic freedom and right to free association.

The defendants moved to dismiss all 17 claims, which Judge Boyle granted, holding that discipline in the workplace is not unlawful. On appeal, the Fourth Circuit affirmed Judge Boyle's dismissal on fifteen (15) of the claims contained in the lawsuit, including Edwards' Second Amendment claim.[Footnote 3] The Fourth Circuit did, however, permit Edwards to amend his poorly pleaded complaint to actually proffer facts supporting his claim that his free speech and associational rights were violated by the reprimand. Ultimately, the case settled out of court, but not before the Fourth Circuit substantially affirmed Judge Boyle's ruling.

3. Godon v. North Carolina Crime Control & Pub. Safety, 959 F. Supp. 284 (E.D.N.C. 1997)

In Godon, the plaintiff filed an action alleging federal and state law claims for free speech violations, sex discrimination and retaliation under Title VII, wrongful discharge and breach of contract. Godon was a contract employee of North Carolina's Department of Crime Control and Public Safety (the "Department") responsible for supervising the training of cadets in a state-run "boot camp" academy. She alleged her employment contract was terminated in retaliation for her complaining to supervisors about what she perceived to be discriminatory treatment of black and female cadets. Judge Boyle granted the government's motion to dismiss all claims. The opposition claims that Judge Boyle ruled incorrectly and was "completely reversed on appeal twice." Not true.

Actually, the Fourth Circuit affirmed the dismissal of the vast majority of plaintiff's claims, including her sex discrimination and retaliation claims under Title VII. The Fourth Circuit remanded the case, in small part. It did so principally to allow for a fuller development of the facts. The opposition would have you believe that this signifies that Judge Boyle mishandled this case and denied a day in court to a claimant who "was fired for communicating about discrimination within a state police agency." The facts belie such claims. In its opinion, the Fourth Circuit expressly cautioned against drawing any inferences from the fact that it had remanded the action. It made clear that "[i]n holding only that [plaintiff's] complaint survives a motion to dismiss . . . we offer no opinion on whether the claim will ultimately prove to be meritorious or on whether it should proceed to trial." On remand, Judge Boyle further developed the record and subsequently granted defendants' motion for summary judgment to dismiss the claims against them in both their official and personal capacities.

On subsequent appeal, the Fourth Circuit agreed with Judge Boyle's ruling, and affirmed the dismissal of plaintiff's claims brought against the State defendants and individual defendants in their official capacity. It remanded, however, Judge Boyle's dismissal of the claims against the defendants in their individual capacities, but not before expressly cautioning that it had "significant doubts about the ultimate viability of [plaintiff's] claims" on remand. The Fourth Circuit went so far as to intimate that additional discovery at the district court level was likely to permit a dismissal of the remaining claims without ever proceeding to trial.

Thus, as in Edwards, this case holding is not as the opposition purports. Godon is a case in which the Judge's holdings were vastly affirmed on appeal. It is, therefore, absurd to claim that Judge Boyle "erroneously dismiss[ed] a police expression case involving speech about discrimination."[Footnote 4]

4. Burns v. Brinkley, 933 F. Supp. 528 (E.D.N.C. 1996)

Burns involved a Deputy Sheriff who was terminated because he supported an unsuccessful candidate for Sheriff who had run against the incumbent Sheriff. The Deputy brought a cause of action alleging that his First Amendment and substantive due process rights had been violated by the incumbent Sheriff. Judge Boyle disagreed and dismissed the complaint on the government's motion. Specifically regarding the First Amendment claim, Judge Boyle ruled that "where 'party affiliation is an appropriate requirement for the effective performance of the public office involved,' the First Amendment is not offended by a politically motivated dismissal." Burns, 933 F. Supp. at 534 (quoting Branti v. Finkel, 445 U.S. 507, 518 (1980)). This holding was entirely consistent with Fourth Circuit precedent on its facts. See Joyner v. Lancaster, 553 F. Supp. 809, 818 (M.D.N.C. 1982), aff'd, 815 F.2d 20 (4th Cir. 1987).[Footnote 5] Rather than being the bombshell case against Judge Boyle the opposition purports, in reality, Burns remains good law today.

We also note that the opposition is patently disingenuous in its rendition of this case. It takes a portion of a sentence from Burns and quotes it entirely out of context (likely in an attempt to portray Judge Boyle as callous to constitutional rights), to wit: "[t]he Constitution does not create rights." In fact, the full quotation from Burns is: "[t]he Constitution does not create rights, but it does recognize rights and affords them protection." Burns, 933 F. Supp. at 532 (emphasis added). Moreover, there is ample support for this statement of Judge Boyle, given his citation to Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532, 538 (1985), and the Supreme Court's similar statement that "[p]roperty interests are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . .". Following Supreme Court precedent is not only appropriate in this case, it is required. The law asks no more of a district court judge, and neither do we.

5. United States v. North Carolina, 914 F. Supp. 1257 (E.D.N.C. 1996)

In United States v. North Carolina, the United States Attorney General brought a Title VII employment discrimination action against the State of North Carolina alleging that it engaged in a pattern or practice of sex discrimination in the hiring and promotion of female correctional officers in the State's all-male prisons. In 1995, after nearly 18 months of discovery and settlement negotiations in an effort to avoid litigation, the parties agreed upon a settlement and presented a consent decree to the district court for entry. The terms of the consent decree required North Carolina to embark on extremely costly recruitment measures and promulgate a quota hiring system involving priority hiring and promotion for hundreds of women allegedly actually or constructively denied such opportunities. It also imposed monetary penalties on North Carolina to pay back pay for a period of three years to women who either applied for a position or for promotion and were denied, or who "but for the discrimination" would have applied for a position or promotion during that time period.

After provisionally entering the consent decree, Judge Boyle held a fairness hearing and received evidence from both sides. The evidence submitted by the United States turned principally on statistical modeling that was predicated on national averages rather than data specific to North Carolina. Judge Boyle ruled that this evidence did not establish that North Carolina had, in fact, engaged in any pattern or practice of discrimination. Given the costly measures and onerous hiring and promotion quotas being imposed on the State by virtue of this consent decree, as well as the evidence of questionable weight proffered by the United States, Judge Boyle held that:

A case based substantially on statistics and bolstered with anecdotal allegations of discrimination by claimants who have been recruited or solicited by [the United States], or who have come forward only after prospects of a large cash reward have been revealed, is merely a theoretical dispute about subjective notions of societal ideals. It does not have the constitutional requirement of a real controversy for subject matter jurisdiction in a federal court.

United States v. North Carolina, 914 F. Supp. 1257, 1274 (E.D.N.C. 1996). Judge Boyle concluded that, based on the forecast of evidence then before the court, he lacked subject matter jurisdiction over the matter and vacated the court's provisional entry of the order. Judge Boyle added that "[a] federal court should be circumspect before it would take custody of large segments of a state's sovereign functions." He intimated that the terms of the consent decree may, in fact, go so far as to violate the equal protection rights of male employees and prospective applicants.

After receiving more persuasive evidence establishing the court's subject matter jurisdiction, more than one year had elapsed. Upon subsequent hearing, however, Judge Boyle was informed of several significant developments: first, the State now adamantly opposed entry of the consent decree; and, second, the State proffered evidence that it had taken "an aggressive posture in the hiring, assignment and promotional practices" with the Department of Corrections. United States v. North Carolina, 180 F.3d 574, 580 (4th Cir. 1999). In short, there was no longer a need nor was there an agreement by the State to enter the consent decree. And, not only did the State no longer agree to the terms of the vacated consent decree, it challenged the new evidence that had been proffered by the United States solely in its effort by the State to move to dismiss the action.

Judge Boyle denied the State's motion to dismiss but also declined to enter the consent decree on grounds that it was no longer reasonable or lawful to do so. In other words, he kept the controversy alive to enable the full discovery and litigation process to bring the case to a resolution. In support of his ruling, Judge Boyle observed that, in the intervening period, the North Carolina legislature had enacted legislation that required "prior legislative approval of the settlement" and a requirement that the State Attorney General provide written advisement on all such settlements that affect the public fisc over a certain threshold. For all of these reasons, along with the fact that Judge Boyle viewed the consent decree as an executory, rather than executed, contract, Judge Boyle declined to enter the consent decree. In his view, it would simply be unfair, unreasonable, and indeed, unlawful to do so given the circumstances.

Although the Fourth Circuit disagreed on appeal, it did so largely based on a different interpretation of what constitutes grounds for withdrawing from a settlement agreement. Judge Boyle, on the one hand, viewed that the substantial demonstrated strides by the State over the course of one year to increase female hiring and promotion rendered any forced corrective measures dictated by the federal government unnecessary and, thus, "substantially unfair." See generally Petty v. Timken Corp, 849 F.2d 130, 133 (4th Cir. 1988) (instructing that settlement agreement may not be set aside simply because party to it has second thoughts, but because it is or has become "substantially unfair."). The Fourth Circuit took a different view, ultimately holding under the circumstances that Judge Boyle was essentially required to enter the consent decree despite the State's withdrawal from and challenge to it.

This lengthy discussion, we hope, demonstrates that there was no easy answer to this case and that Judge Boyle did not take lightly his responsibility to weigh all facts and attempt to arrive at a fair and just resolution. It is a testament to his judicial temperament and attention to detail and in no way suggests that Judge Boyle is hostile to any group or unable to follow established precedent. Any suggestion to the contrary is simply not proven.

6. Morrash v. Strobel, 842 F.2d 64 (4th Cir. 1987)

Finally, Judge Boyle's opponents rely upon Morrash v. Strobel, an opinion authored by Judge Boyle while sitting by designation on a Fourth Circuit panel. The criticism alleges that Judge Boyle "moved to rule against the constitutional claims of several Virginia police officers" who were allegedly "whistleblowers who had exposed misconduct and were disciplined." The criticism goes on to say that Judge Boyle concluded "that the officers did not have any due process, free association or speech rights to protect them from exposing misconduct." These charges are truly absurd for several reasons that are obvious to anyone who actually took the time to read the actual opinion he authored.

Judge Boyle was sitting by designation as an appellate judge in this case, not as the trial judge. As such, he did not "move to rule" against anything; he (along with the two other judges sitting on the three-judge panel) merely upheld the lower courtís dismissal of most of the claims and, as to the claims that went to trial, remanded to retry the due process and free association claims after determining the lower court erred in a critical ruling at trial. See Morrash, 842 F.2d at 67.

* * * * * * *

We ask you to join us in supporting Judge Boyle's nomination openly. Move his nomination forward and confirm him.

Very truly yours,

Manuel Miranda, Third Branch Conference

Phyllis Schlafly, Eagle Forum

Grover Glenn Norquist, Americans for Tax Reform

Bill Brooks, North Carolina Family Policy Council

Saulius "Saul" Anuzis, Michigan Republican Party

Michael Thielen, Republican National Lawyers Association

Sean Rushton, Committee for Justice

Mathew D. Staver, Liberty Counsel and Liberty University School of Law

Dr. John C. Eastman, Claremont Institute Center for Constitutional Jurisprudence

Hon. Robert A. Destro, Catholic University, Columbus School of Law

William L. Saunders, Family Research Council

Stephen M. Crampton, AFA Center for Law & Policy

Tom Fitton, Judicial Watch

Carl Herbster, AdvanceUSA

Connie Mackey, FRCAction

William Lauderback, American Conservative Union

Jan LaRue, Concerned Women for America

Stephen A O'Connor, Eagle Publishing Inc., Human Events

Ron Shuping, The Inspiration Television Networks

Ambassador Alan Keyes, Declaration Alliance

L. Brent Bozell III, Conservative Victory Committee

Deal Hudson, Morley Institute for Church & Culture

George Landrith, Frontiers of Freedom

Rev. Rick Scarborough, Vision America

Rev. Miguel Rivera, National Coalition of Latino Clergy & Christian Leaders

Andrea Lafferty, Traditional Values Coalition

Thomas A. Glessner, National Institute of Family and Life Advocates (NIFLA)

Colin A. Hanna, Let Freedom Ring, Inc.

Peggy Birchfield, Religious Freedom Action Coalition

Dr. Gary Cass, The Center for Reclaiming America for Christ

Kay Daly, Coalition for a Fair Judiciary

Tom Shields, Coalition for Marriage and Family

Gary Marx, Judicial Confirmation Network

Amy Ridenour, Americans for the Preservation of Liberty

Dr. Patricia McEwen, Life Coalition International

Michael Krempasky, ConfirmThem.com and RedState.com

Joseph Cella, Fidelis

Jim Boulet, Jr., English First

Jeff Ballabon, Center for Jewish Values

Rabbi Aryeh Spero, Caucus For America and host of "Talking Sense"

Rev. Dave Kirby,ââ‚ Fellowship of Associate Members and Local Pastors

Dr. William Greene, RightMarch.com

Chuck Muth, Citizen Outreach

C. Preston Noell III, Tradition, Family, Property, Inc.

Jason Wright, Institute for Liberty

Steven Mosher, Population Research Institute

Gary Palmer. Alabama Policy Institute

Dr. Randy Brinson, Redeem the Vote

Greg Jones, Foundation for Moral Law

A.J. Keagle of Arkansas

Rodolfo Milani of Florida

James Hochberg of Hawaii

Jill Stanek of Illinois

Thomas Brejcha, Thomas More Society of Chicago

Micah Clark, American Family Association of Indiana

Kent Ostrander, The Family Foundation of Kentucky

Kristian M. Mineau, Massachusetts Family Institute

Don Feder, Don Feder Associates

Mike Franco, Baystate Republican Assembly, Western Mass Republicans

Douglas Reaume of Michigan

Forest Thigpen, Mississippi Center for Public Policy

Ed Holdgate, New Hampshire Right to Life PAC

Carolee Adams, Eagle Forum of New Jersey

Phil Burress, Citizens for Community Values

Rev. Russell Johnson, Ohio Restoration Project

Dr. John Denton of Ohio

Diane Gramley, American Family Association of Pennsylvania

Jeff Lord of Pennsylvania, author of The Borking Rebellion

Robert R. Galbreath Jr., Citizens for a Constitutional Republic

Dr. James H. Broussard, Citizens Against Higher Taxes

Jerry Stevens, Draft Thomas Ravenel for SC Republican Primary, US Senate

Bobbie Patray, Tennessee Eagle Forum

Cathie Adams, Texas Eagle Forum

Hon. Kenneth Whitehead, Falls Church Republican Committee (VA)

Mark R. Levin of Virginia, author of Men In Black

Dr. Theodore C. Brown, Jr., YRFV 3rd District

Julaine K. Appling, The Family Research Institute of Wisconsin

Chris Dickson, radio host, "The Dickson/Chappell Report" (IN and OH)

Martha Zoller, WDUN AM 550

Scott Hennen, radio host, WDAY/KCNN

Organizations listed for identification purposes

[Footnote 1] We have reviewed all opposition letters. They say nothing about Judge Boyle's record of being tough on crime and of his true respect for the issues that are central to fulfilling law enforcement responsibilities.

[Footnote 2] Recently, the Supreme Court had occasion to revisit the issue of public concern speech protection in Garcetti v. Ceballos, No. 04-473 (U.S. May 30, 2006). In Garcetti, a deputy district attorney suffered adverse employment action after bringing to the attention of his superiors a warrant that contained what he described as serious misrepresentations by the affiant, a fellow deputy. Ceballos later testified for the defense in a hearing to have the charges dropped. The Court found that Ceballos was not speaking as a citizen on a matter of public concern when he spoke out on this issue, but rather squarely in his official capacity. It held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at p.9. In Kirby, Judge Boyle found that Kirby was not speaking on a matter of public concern, also a required component for First Amendment protection.

[Footnote 3] A recent April 2006 ÃÂDear Colleagueî letter by Senator Joseph Biden ("Biden letter") shows that labor union/trial lawyer opponents also misunderstand this holding, contending as follows: "In one of Judge Boyle's many anti-police rulings, Edwards v. City of Goldsboro, N.C., 178 F.3d 231 (4th Cir. 1999), the National Rifle Association (NRA) filed a strong amicus brief challenging Judge Boyle's decision and reasoning. . . . The NRA was correct, and Judge Boyle was overturned on appeal again." Biden letter at 7, n5. This statement is inaccurate for two reasons. First, Senator Biden suggests this matter was appealed more than once. That is incorrect. It was appealed only once, and amicably resolved later between the two parties. Thus, there was no subsequent appeal as Senator Biden contends. Second, Judge Boyle's dismissal of the Second Amendment claims was upheld on appeal, not, as Senator Biden erroneously contends, overturned. Edwards claimed that his Second Amendment rights were violated when he was denied permission to teach a concealed handgun safety course while he was off-duty and by punishing him for doing so without permission. Indeed, as the Fourth Circuit observed, it is well-settled that "the Second Amendment does not apply to the States." Edwards, 178 F.3d at 252 (citing Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995)). Thus, Judge Boyle's ruling was entirely consistent with established precedent.

[Footnote 4] Biden letter at 24 (Letter from National Association of Police Organizations, Inc. to Senators Specter and Leahy, dated February 24, 2005).

[Footnote 5] In Joyner, a Deputy Sheriff was terminated after he supported an unsuccessful challenger to the incumbent Sheriff. In upholding the termination as lawful, the district court likened the Deputy's actions to a public challenge to the Sheriff's fitness to hold office. It observed first that "[u]nder state law the sheriff has the exclusive right to fire any deputy in his office. Deputies work at the pleasure of the sheriff." Id at 816. The Court then held that this particular termination did not offend any protected rights of the Deputy, reasoning "[w]here differing political beliefs of a person have the potential to undermine the ability of that person to perform his duties fully or his ability to serve his employer to the employers legitimate satisfaction, then political affiliation becomes an appropriate requirement for the effective performance of the office.") Id. at 818.

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Posted at 2:26pm on Jul. 25, 2006 Jerome Holmes Confirmed for Tenth Circuit, 67-30

By AndrewHyman

Congratulations!

UPDATE: Here's the vote tally.

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Posted at 3:28am on Jul. 25, 2006 A Plan is Afoot on Behalf of the Boyle Nomination

By AndrewHyman

The Hill has an intriguing report today, and here's how it starts:

Conservatives Call for Cloture on Boyle

By Alexander Bolton

Manuel Miranda, chairman of the Third Branch Conference, a coalition of conservative groups active on judiciary issues, said that he and his allies will press Republican senators to circumvent Senate Majority Leader Bill Frist (R-Tenn.) if he does not schedule a vote on 4th Circuit nominee Terrence Boyle before the August recess.

Miranda, Fristââ‚â„¢s former counsel in charge of plotting strategy on judicial nominees, said that if 16 senators sign a cloture petition on Boyleââ‚â„¢s nomination they could force a floor vote since the Judiciary Committee has already discharged the nomination. He said that several Senate leadership aides have been informed of the plan.

But a Senate leadership aide said a cloture petition would not be practical for forcing a floor vote if Frist objects. The aide said senators could only force a vote if Boyleââ‚â„¢s nomination were already pending on the floor, adding that itââ‚â„¢s the majority leaderââ‚â„¢s prerogative to call up a nomination.

Miranda acknowledged it would be difficult to force a vote on Boyle without Fristââ‚â„¢s consent but said the effort would emphasize conservativesââ‚â„¢ position.

I'm no expert on parliamentary procedure, but this is what the Congressional Research Service says:

Since 1980, the Senate precedent has been established that when the Senate is in legislative session, a non-debatable motion may be made to go into executive session to take up a specified nomination . . . . If adhered to, the precedent, according to one congressional scholar, means that "there would be only one filibuster, on the nomination itself."

Judge Boyle is close to the all-time record for months spent waiting on the Senate Calendar, after having been approved by the Judiciary Committee. Judge Boyle has also been approved by the American Bar Association, for what that may be worth.

Much information about Judge Boyle is linked over at the right-hand-side of the confirmthem home page, under the category "Circuit Nominees."

UPDATE: On July 26, Manuel Miranda of the Third Branch Conference indicated that this plan would probably be put into effect after Labor Day, which is on September 4, 2006.

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Posted at 4:26pm on Jul. 24, 2006 Holmes Debate in Senate

By AndrewHyman

The Senate is now debating the nomination of Jerome Holmes for the Tenth Circuit. You can watch or listen here. There will be up to two more hours of debate tomorrow, and then a vote.

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Posted at 11:45pm on Jul. 23, 2006 2006 Senate Races

By AndrewHyman

John Mulligan of the Providence Journal has an article today titled, ââ‚Å“GOP fights for control of Congress.â₝ In the article, there's this:

As he approaches the final election cycle of his administration, the biggest question to be settled this fall may be Mr. Bush's ability to complete his transformation of the federal judiciary --- and perhaps the Supreme Court.â₦[E]ven a â₦ Democratic gain of two or three seats, which many analysts see as a likely minimum, could alter the chemistry of the Senate, including its judicial confirmation role. "In the Senate, every seat matters," said political scientist Larry J. Sabato of the University of Virginia.

FYI, I've just added a new category to our links over at the right-hand-side of the confirmthem home page: "2006 Key Senate Races."

Hat Tip: How Appealing.

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Posted at 7:52pm on Jul. 22, 2006 And ... It's the Weekend Open Thread!

By AndrewHyman

Civil comments only, please (but you can think uncivil thoughts while you write them).

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Posted at 7:55am on Jul. 22, 2006 Leahy and McCain Are "Simply Not Telling You the Truth"

By AndrewHyman

William Myers is now entering the third year of being filibustered by a minority of U.S. Senators, and the Senate leadership refuses to even allow cloture votes on other nominees for fear that additional filibusters will occur. On Thursday, Senator Patrick Leahy tried to justify all of this, by dredging up the bogus accusation that the GOP once engaged in "pocket filibusters" against Clinton nominees.

Speaking on the floor of the Senate on July 20, Leahy said that in 1996 the GOP had a "pocket filibuster strategy to stall and maintain vacancies in an election year with the hope that a Republican President could pack the courts and tilt them decidedly to the right." There's only one little problem: the GOP was in the Senate majority in 1996, not the minority. As one history and civics teacher has put it:

I'm afraid that Leahy doesn't understand Senate procedure. When the majority kills a bill or nomination, it is not a filibuster. It is how things work in a democracy. Only a minority can conduct a filibuster.

The term "pocket filibuster" is just a way to obscure the unprecedented tactics that Leahy continues to use. Amazingly, Leahy has received support from none other than Senator John McCain, who said last August:

Please know that anyone who claims Republicans havenââ‚â„¢t prevented Democratic nominees who had the support of a majority of Senators from receiving an up or down vote on the Senate floor is simply not telling you the truth.

Allow me to say that Senator McCain was "simply not telling you the truth" when he said that. He knows very well that Senate rules allow a majority of Senators to seek a "discharge petition" in order to get a nominee out of committee. Republicans have in fact used that tactic, according to Byron York:

Republicans tried to shake things up by introducing a discharge petition, which would force the nominations out of the Judiciary Committee and onto the Senate floor.

The reason why Leahy didn't seek a discharge petition in 1996 is because Leahy knew very well that a majority of US Senators would never vote for the discharge petition. Why John McCain buys into Leahy's distortions is beyond me.

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Posted at 3:19pm on Jul. 21, 2006 Tenth Circuit Nominee Will Get Vote Tuesday

By Dave II

Here's something to help you start your weekend with a smile. Jerome Holmes, the first black man ever to be nominated to the Tenth Circuit Court of Appeals, will get a vote on Monday, around 3PM Tuesday, according to the Senate Republican Policy Committee site. Debate will begin on Monday.

Holmes is a qualified young conservative (Democrats oppose him because he dared criticize affirmative action), he will be a historic appointment, and he is replacing a Carter judge. What's not to like?

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Posted at 1:06pm on Jul. 21, 2006 Updated Confirmation Stats from the Third Branch Conference

By AndrewHyman

Yesterday with 46 confirmations, the 109th Senate had confirmed the fewest judges than any Congress since 1963-1964, in the wake of the Kennedy assassination. Today with 50 confirmations, the 109th Congress has confirmed the fewest judges than any Congress since 1973-1974, in the shadow of the Watergate presidency....

[T]he last time the Senate confirmed two Supreme Court nominations (1993-1994, 103rd), they also confirmed 127 other Clinton-appointed judges.... [T]he last time that a Congress (1985-1986, 99th) confirmed two Supreme Court justices in the first two years of a second term president, with the same party controlling the WH and the Senate, they also confirmed 129 other Reagan-appointed judges....

The Senate presently plans no scheduled floor debate time on judges between now and the November election. If the recent past two elections are any teacher, this increases the likelihood that Majority Leader Mitch McConnell will have fewer votes in the Senate to prevent a filibuster of the President's next Supreme Court nominee, and worse, that the President will nominate someone accordingly. Now do you get it? Who will be to blame for that?

Call Senator Frist at 202-224-3121. Then call others: Dole, Allen, McCain and Graham at the same number. Ask them to move on Boyle and Myers before their 5-week August vacation starts at the end of next week.

All that said, the confirmation last night of Neil Gorsuch is a very good thing and shows that Democrats have learned their lessons and are not up for a real fight on judges.

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Posted at 4:33am on Jul. 21, 2006 Dafydd, Novak, and Miranda on Judicial Nominations

By AndrewHyman

Dafydd, at the Big Lizards blog, has a solution to save the Haynes nomination, or maybe not:

[T]he obvious, outside-the-box solution from Big Lizards would ordinarily be for President Bush to short-circuit (sorry) the problem by withdrawing Haynes from his Fourth-Circuit nomination (and Graham's clutches) and nominating him to some other circuit, one that doesn't have an insane person serving as senator. But are there any such open circuits available? As we look, using our two criteria -- a vacancy on the court, and none of the states in its jurisdiction having a madman for a senator -- we rapidly run out of circuits.

Meanwhile, Robert Novak had a report on Wednesday about Senator Frist's recent Leahy-like announcements:

Remember when Senate Republican leaders were pushing to confirm judicial nominees and complaining that Democrats were holding them up with unprecedented filibusters? Republicans would complain that the Senate was not getting a chance to vote -- "up or down" -- on President Bush's appellate court nominees, and Democrats would respond, with numbers and charts, that nearly all of Bush's nominees were being confirmed. Now it appears that Senate Majority Leader Bill Frist (R-Tenn.) is pulling away from the issue of judicial confirmations and resting on the laurels of the Senate's successes to date.

Since the confirmation of Supreme Court Justice Samuel Alito, the Senate seems to have suddenly gone quiet on the topic of judicial nominations. Even more bizarre, Frist is now sounding a lot like Sen. Pat Leahy (D-Vt.) sounded a few months ago as he downplayed the Democrats' obstruction of judges.

A recent press release from Frist's office notes: "Currently 94.4% of all judgeships are filled, including 91.1% of all circuit court judgeships and 95.3% of all district court judgeships. Under Senator Frist's leadership, the Senate has made considerable progress on President Bush's judicial nominees, including confirming two Supreme Court justices, 28 circuit court judges, and 112 district court judges and decreasing the number of circuit court vacancies by 36%."

Republican used to counter this by pointing to the large number of appellate nominees whom Democrats were blocking.

But the Frist of today not only sounds like Leahy, but also sounds like he is using the theme of judicial success in order to boost his prospective presidential run in 2008.

Frist fears a "nuclear" confrontation over some of the current nominees -- particularly appellate nominees Terrence Boyle and William Haynes. His very legitimate problem is that he may not have the votes to pull the so-called "nuclear" trigger and confirm either of them with a mere 50 votes.

Still, he can always try, and Democratic intransigence on judicial filibusters could once again become their party's undoing. True, much of the problem this time is Republicans -- namely Senators McCain and Lindsey Graham (S.C.), who are holding up Haynes because of a memo he authored on the treatment of Guantanamo detainees. But McCain wants to be President, and Graham faces a potentially difficult primary in 2008.

The 2002 and 2004 election cycles made Janice Rogers-Brown, William Pryor and Miguel Estrada into political talking points -- just in time to sour the heartland on Democratic obstructionism. This played no small part in huge GOP gains those years. The diffusion of this issue in 2006 is not good for the GOP.

Meanwhile, the 55-Republican-member Senate now has a similar confirmation rate for appellate judges as former Judiciary Chairman Orrin Hatch (R-Utah) had long ago on confirming Clinton nominees to the appellate court. Hatch had been bottling up Clinton judges in the Judiciary Committee.

A former aide to Sen. Frist told a different story yesterday. According to Manuel Miranda of the Third Branch Conference:

[T]he 109th Senate has confirmed fewer total judges (46) BY FAR than any Congress since 1953, and so far ties for the fewest circuit court judges with only one Congress since 1953, when opposing parties controlled the Senate and the White House....

When the Senate last had two Supreme Court nominations, they also confirmed 127 other judges. Three Bush circuit nominees have been waiting in the Senate for years, one other had to withdraw because of Senate inaction. The Senate presently plans no Senate floor time on judges between now and the November election.

Anyway, let's hope for renewed action to combat --- and defeat --- filibusters of judicial nominations.

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Posted at 6:52pm on Jul. 20, 2006 Gorsuch, Shepherd, Jordan, and Gelpi Confirmed

By Dave II

It will happen about three hours from now, but it will be a voice vote and we all know it's a done deal, so why wait? Although numerous excellent nominees still await confirmation, I'm pleased that the Senate deigned to confirm anybody. At least, that's how Bill Frist wants us to view the situation. But enough. These are the first confirmations in over a month, and some excellent men got confirmed today, and that's something. Let's break it down below the fold!

Neil Gorsuch to the United States Court of Appeals for the Tenth Circuit. Gorsuch, 39, was nominated on May 10, 2006 to replace Judge David Ebel, a Reagan appointee. Gorsuch is the fifth judge Bush has appointed to the Tenth Circuit (Clinton appointed four), and the first since 2003. The Tenth Circuit is now 7-4 Republican. There is one vacancy remaining; hopefully, Jerome Holmes will be confirmed to it very soon. Gorsuch, who has a reputation as an exceptionally well-qualified conservative, is now the youngest federal judge in the nation, taking that distinction away from Brett Kavanaugh.

Magistrate Judge Bobby Shepherd to the United States Court of Appeals for the Eighth Circuit. Shepherd, 55, was nominated on May 18, 2006 to replace Judge Morris Sheppard Arnold, a G.H.W. Bush appointee. Shepherd is now the seventh (!) judge Bush has appointed to the eleven member court (Clinton appointed three). Shepherd will not actually be sworn in for a few months because Arnold will not begin senior statuts until the end of October. But Shepherd's confirmation means the 9-2 Republican advantage on the Eighth Circuit will continue uninterrupted.

Daniel Porter Jordan III to the United States District Court for the Southern District of Mississippi. Jordan, 42, was nominated on April 24, 2006 to replace Judge Tom Lee, a Reagan appointee. Jordan is the fourth District judge Bush has appointed to Mississippi (Clinton appointed one).

Magistrate Judge Gustavo Gelpi to the United States District Court for the District of Puerto Rico. Gelpi, 41, was nominated on April 24, 2006 to replace Judge Hector Laffitte, a Reagan appointee. Gelpi is Bush's second appointment to Puerto Rico (Clinton appointed three).

All these nominees got confirmed within 2-3 months of nomination, and that's they way it should be. The largest Republican Senate in 60 years has now confirmed 13 Circuit Court judges, six this year. Eleven more await confirmation. I expect at least two more confirmations (Holmes and Moore) without a doubt, so that means the Senate should actually confirm more Circuit judges this year than it did last year. The 108th Senate confirmed sixteen judges.

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Posted at 6:30pm on Jul. 20, 2006 Pessimism on Haynes, plus other news

By Quin

Okay, I am hearing from a solid Senate source the following bits of information... with my commentary afterwards:

1) My impression, reading the tone and substance from my source, is that things are not looking good for Jim Haynes. Lindsey Graham and John McCain seem "dug in" against him, and McCain has harassed him (and in so doing, pulling a page from Ted Kennedy's book) by submitting right about 150 written questions (I think it's 152, but am checking) for Haynes to answer. (Quin comments: When the questions get so numerous, it's not a real attempt at info-gathering; it's sheer meanness. Kennedy and other Dems did the same thing to Bill Pryor.) And with Chafee almost always a problem and Susan Collins also having expressed reservations about Haynes, the odds of successfully using the constitutional option are low--and that is even assuming Haynes reaches the floor, which probably won't happen, because Graham would probably join all the Dems in voting against him in committee.

2) Tonight's nominees set for passage are Gorsuch and Shepherd. (By the way, I attended the Sheperd/Moore hearing several weeks ago), and never reported on it because I was busy, but I expect at some point to have more on Shepherd for ya'll's edification, if I ever get around to it.

3) Moore and Holmes are not set for passage tonight, but they probably will be confirmed soon. There doesn't seem to be a critical mass against either of them.

4) The hearing for Wallace should be real soon. After that, the new spate of nominees -- Livingston, Murphy, Keisler, et al -- will receive hearings.

5) Randy Smith remains in limbo (Quin's comment: For no good reason whatsoever; just the dumb jurisdictional dispute with the Californians, which isn't a good reason at all.)

6) Jury is still out on Myers and Boyle; apparently, there still is at least some hope of breaking the impasse over them, with Boyle's odds seeming slightly higher if anything happens in the short run.

Now, Quin's fuller comments after the break:

1) The treatment of Haynes by McCain and Graham is unconscionable, especially after Haynes has corrected the misimpressions about his role in the misnamed "torture memo." Both McCain and Graham ought to be made to pay a heavy political price for their asininity. All my sources tell me that Haynes is a real star and a terrific lawyer and human being. It is expected for Dems these days to mistreat nominees by mischaracterizing their record; for Republicans to do it to one of their own is abominable. If Graham REALLY thinks he is acting on principle (even though he's actually acting only out of personal pique), what he should do is not show up at the committee vote so that Haynes can reach the floor on a 9-8 vote. He then, on principle, should be willing to invoke the constitutional option to kill the filibuster. And THEN, if he feels so strongly, he should make his case on the Senate floor, vote no on final confirmation and try to convince others to do likewise. He would still be wrongheaded if he did that, but it would be the more honorable thing to do, to give the president of his own party and the nominee the right to have their case made under fair rules and the issue decided on majority vote. Haynes might STILL lose under such circumstances, but at least he would have received a somewhat fair shake. As it is, words cannot express the contempt that McCain and Graham merit through the course they appear to have chosen.

#5 and #6) Enough is enough is enough. It is long past time to stop making these nominees twist in the wind. The Senate leadership and the president of the United States should use ALL their power to force a vote on Smith, Myers and Boyle, INCLUDING use of the constitutional option, NOW. It is a travesty for Boyle to wait 15 years, and for Myers to be filibustered for two years solid, and for Smith to dangle without there being a single note of substance against him but instead merely because of a California power play that on its very face is dishonest. It is time for the president and the leadership (especially the president) to twist arms, butt heads, and come down like a ton of bricks (to use way too many cliches) against all GOP senators who fail to support a full, fair, simple majority vote on these three nominees, including use of the constitutional option if necessary. The White House should tell Chafee he's dead meat against Laffey if he doesn't comply. Bush should tell Graham that he'll back Ravenel in 2008 if he continues acting like a jacka$$. Etc., etc., etc. These nominees are not politicians, but human beings with families and lives and financial obligations, etc. TO treat them as badly as they have been treated is to fail a basic test of decency. To see them dangle in the wind makes me sick to my stomach. And it should be held as a black mark against this administration, forever, if the administration does not use all its powers, a la LBJ, to get these nominees a resolution to their situations (and, for that matter, successful resolutions, meaning confirmation!).

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Posted at 10:08pm on Jul. 19, 2006 Vote on Boyle, Myers, and Smith

By AndrewHyman

Some votes on nominees may be coming up on Thursday in the U.S. Senate. Unfortunately, the threat of a filibuster will probably be lurking in the background. If there is ever a Democratic President and Democratic Senate again, I certainly won't be advocating for perpetual filibusters of judicial nominees, even though that's now the Democratic weapon of choice. That species of filibuster is a new innovation, and a disgraceful way to treat people who are offering public service. They're also a way for a minority to screen out all the nominees that fail their litmus tests and their preferences, even though their litmus tests and preferences have been repeatedly rejected at the polls. The GOP has never used perpetual filibusters against judicial nominees, and I hope that never happens. Democrats say that filibusters of judicial nominees are allowed by the Constitution and by the Senate rules, but that's debateable. In any event, lots of things are allowed by the Constitution and Senate rules, including a declaration of nuclear war on Canada. That obviously doesn't make it a wise tactic, much less a traditionally acceptable tactic.

There has been no vote yet on Judge Terrence Boyle by the full Senate --- not even a cloture vote that puts all Senators on record. He was renominated in 2001 and still awaits a verdict. In less than a month, Judge Boyle would surpass William Fletcherââ‚â„¢s thirteen months spent waiting on the Senate Calendar (after having been approved by the Judiciary Committee). Democrats are feigning outrage because Boyle made an innocent recusal error of the sort made by lots of judges, including Justice Ginsburg. Boyle acknowledged the error and has taken steps to prevent a recurrence. Boyle is being opposed at least partly out of spite, because he worked for Jesse Helms for one year in 1973 --- forget about the fact that many currently serving Democratic Senators also worked with Helms at the same place of employment. And for what it may be worth, Judge Boyle is still rated "qualified" by the notoriously liberal American Bar Association, to sit on the Fourth Circuit.

William Myers is the victim of one of the longest filibusters in history. His cloture vote was on July 20, 2004 and still the obstruction continues. Myers hasnââ‚â„¢t had any kind of vote since being renominated last year. Apparently, Democrats are most upset at Myers because he was once a lawyer and lobbyist for cattle and mining interests. As if Democrats haven't supported Democratic nominees who represented every sort of criminal (including rapists and murderers). It is inane to oppose a judicial nominee because of the types of clients he once represented. For what it may be worth, Myers is still rated "qualified" by a substantial majority of the notoriously liberal American Bar Association committee responsible for rating nominees, to sit on the Ninth Circuit.

Randy Smith's sin is that he is from Idaho instead of from California. His predecessor is from Idaho too. But, the Democrats want to extort more California nominees from the White House. It's not enough for them that the U.S. Supreme Court already has two California-born justices. It's not enough for them that no Supreme Court Justice in history was born in Idaho. It's not enough for them to block another Idaho nominee --- William Myers. The Smith situation is absolutely insane. For what it may be worth, Smith is still rated "well-qualified" by the notoriously liberal American Bar Association, to sit on the Ninth Circuit.

It's unfortunate that so many GOP Senators are willing to be bullied like this. The saddest thing is that what goes around will not come around; there will be no getting even with these Democratic filibusterers. The GOP will never support nuclear war on Canada (see first paragraph of this post), and will never support perpetual filibusters of a Democratic President's nominees. At least I won't.

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Posted at 8:22pm on Jul. 19, 2006 Judge Votes Coming Thursday

By Dave II

Assistant Majority Leader Mitch McConnell just announced that tomorrow, following the reauthorization of the Voting Rights Act, there will be votes on "several Circuit and District Court nominees."

This is welcome news indeed. The Senate has not confirmed any judges since June 22, and no Circuit Court judges since Sandra Ikuta on June 19th. Currently, there are only two District Court nominees before the Senate, Daniel Jordan III and Gustavo Gelpi. There are many more Circuit Court nominees: Terrence Boyle, William Myers, Randy Smith, Jerome Holmes, Neil Gorsuch, and Bobby Shepherd.

Two more nominees, Federal Circuit nominee Kimberly Moore, and Guam District nominee Frances Tydingco-Gatewood, may move to the floor tomorrow. Judiciary Committee Chairman Arlen Specter announced that the Executive Business Meeting scheduled for tomorrow has been cancelled due to the debate on the Voting Rights Act, but he also said that he hoped to find time to have the meeting in order to "pass out the judges." So that may yet occur at some time tomorrow. It sounds like the Senate will be very busy tomorrow and stay open late with votes, so there is some chance that Moore and Tydingco-Gatewood will indeed move to the floor and receive votes tomorrow. Knowing the Senate as we do, we can predict that Jordan, Gelpi, Gorsuch, Holmes, and Shepherd are the only nominees who really may be confirmed tomorrow. The low-hanging fruit, as they say.

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Posted at 6:43pm on Jul. 19, 2006 Sykes on Christian Legal Society

By Quin

I am WAY late on this, because it was a topic briefly discussed here more than a week ago, but I just now had the chance to read Diane Sykes' decision (and the liberal dissent from that decision) that granted an injunction to the Christian Legal Society to allow it to keep operating as a recognized student organization at SIU Law School despite SIU's attempt to de-recognize it. Her decision was praised by other commenters here. And, in most respects, the praise was well-deserved because, as always appears to be the case with her, it was written with clarity and strong internal logic.

But as one of her foremost advocates on this site for her to be strongly considered for SCOTUS, I must pick one nit with her decision. Granted, the decision was whether to overrule a district court that refused to issue an injunction, so she wasn't required to get into all aspects of the case itself. Nevertheless, I thought her decision should have at least ACKNOWLEDGED that some aspects of "recognition" are perhaps more easily considered part of a "right" than others.

It is one thing to say that a group has the same rights as other groups to use state university bulletin boards and to reserve university classrooms for meetings. It is quite another thing to say that said group has a right to university funding. Yet, as things stand now, the potential access to university funding is listed in the same breath as other benefits of recognition.

I'm writing this very quickly, so not doing a great job of explaining it... but the principle is important: Access is one thing, but financial support is another. The legal implications of failing to recognize this principle is important; indeed, if I remember correctly, several big cases have turned on it.

If any of you legal scholars out there want to tackle this issue more thoughtfully and with more citations or research than I have, please have at it. And you can always e-mail me if you want to at qhillyer@gmail.com.

Anyway, mark this down as a tiny, and only a tiny, quibble I have with Sykes... in the course of admiration, again, for her clarity and logic and basic jurisprudential approach. I still think she would make a fine SCOTUS justice!

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Posted at 2:33am on Jul. 19, 2006 Confirm William J. Haynes II

By AndrewHyman

The Washington Times has an editorial today with the same title as the title of this post. Here's how it starts:

Based on his legal experience, the commendable manner in which he has conducted himself while serving as the wartime general counsel in the Pentagon and his compelling life story, William J. Haynes II would make an ideal appellate-court judge.

Along the same lines, our own Quin Hillyer has a piece at the American Spectator that addresses the unfounded concerns about Haynes and Abu Ghraib:

[W]hen Justice officials drew up a memo listing 35 types of possible interrogation techniques, all of which Justice found to be legally allowable...Haynes established broad-based "working groups" to analyze not just the legality but the wisdom and morality of using those techniques. Eventually, Haynes recommended, and Secretary Donald Rumsfeld agreed, that 11 of those techniques be rejected. Of the remaining 24, 17 already were already approved under the Geneva Conventions....

[F]or those ... obsessed with the abuse at Abu Ghraib, the facts are these: First, the memo in question applied only to Guantanamo Bay, not to Abu Ghraib, which was governed by the Geneva Conventions. And every official investigation of Abu Ghraib, in .... Haynes' accurate words, "found that those abuses were not a result of policies within the Defense Department; indeed, they were in direct violation of all policies. Indeed, the abuses at Abu Ghraib were not done by interrogators at all," but as a sick lark by low-level soldiers serving as prison guards.

If Haynes is reported out of Committee (which he should be), then he ought to get an up or down vote, just like Terrence Boyle should, and William Myers should, and Randy Smith should. If these outstanding committee-approved and (for what it's worth) ABA-approved nominees don't get an up-or-down vote, then people like Senator Graham will owe us an explanation as to what makes these nominations more "extraordinary" than every single nomination reported out of the Judiciary Committee during centuries past.

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Posted at 9:07pm on Jul. 18, 2006 "Conservative Group To Issue Scorecard On Judicial Votes"

By AndrewHyman

Greta Wodele reports in Congress Daily:

A conservative group announced today it would increase pressure on Senate Majority Leader Frist and other GOP senators to schedule more votes this year on President Bush's judicial nominees. The Third Branch Conference said it would issue a scorecard before the November elections, taking a page from liberal groups' playbook and scoring votes as well as senators' action or inaction on judicial nominations in the 109th Congress. The group plans to rate senators based on two tallies -- one rating would cover cloture and confirmation votes for appellate and Supreme Court nominees and the second would highlight a senator's efforts to block nominees. The group said it would use the scoring system during the 2008 presidential and congressional races as well.

Larry Sabato, a political science professor at the University of Virginia, predicted today that conservatives would pay close attention to the scoring system and could become a key factor in primary challenges against GOP senators and in the 2008 presidential race. "Conservatives deeply care about judicial appointments," said Sabato. "And it was one of Bush's best issues in the campaigns of 2000 and 2004." Frist, who is considering a 2008 presidential bid, has repeatedly touted his successful efforts to confirm two Supreme Court nominees and several judicial nominees.

A Frist spokeswoman today claimed that 95 percent of all judgeship slots have been filled under Frist's leadership. But the Third Branch Conference said Bush's confirmation rate is 70 percent for circuit judges and that Frist has pushed through only 46 judges during the 109th Congress, compared with 100 judges confirmed under Democratic control during the 107th Congress.

The group also threatened today to hold the Senate's "Gang of 14" -- the seven Republicans and seven Democrats who stopped Frist from implementing the so-called nuclear option last year -- "accountable for delays or withdrawals by nominees attributable to them." The Gang of 14 agreed last year to support a filibuster under "extraordinary circumstances." The consensus prevented Frist from changing Senate rules to prohibit the minority from filibustering a president's judicial picks. "The result will be that senators will have an incentive to be their leader's keeper because the obstruction or inaction of the leadership, the committee chairman or one former trial lawyer in the Gang of 14 will be counted against every senator," said Manuel Miranda, chairman of the Third Branch Conference.

Miranda and other conservative leaders have accused Sen. Lindsey Graham, R-S.C., of holding up William Haynes' nomination to the 4th U.S. Circuit Court of Appeals. Graham has denied the accusation, but has voiced concern with the nominee. Sen. Ben Nelson, D-Neb., a member of the Gang of 14 who faces a tough re-election battle this year in a Republican-leaning state, is also a likely target for the conservative group. One Senate GOP aide dismissed the group's scorecard, saying it would "mirror the current partisan slant on judicial debates. I don't think there will be many surprises."

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Posted at 8:07pm on Jul. 18, 2006 Salon Praises Claim that GOP is a "Sewer" of "Whores"

By AndrewHyman

Pardon the title of this post, but unfortunately it's entirely accurate, as I'll describe. We mentioned recently at confirmthem that Salon magazine has a policy whereby its "editors will review the letters posted to an article and mark those they feel are most worth readers' attention as ââ‚ËœEditors' Choice.ââ‚™â₝ Salon designated the following letter as an "editor's choice" selection in connection with one of Salon's many pieces attacking Judge Terrence Boyle:

Letââ‚â„¢s just say that the "judge" is simply another Boyle on the butt of Bushââ‚â„¢s administrative policy. ââ‚“ AGJ.

Yesterday, Salon removed that "editor's choice" designation, and posted this notice:

"Editors' choice" correction

We've removed the "editors' choice" label from one letter responding to this article -- it had been chosen by mistake.

---the Editors

Unfortunately, Salon still has a lot of cleaning up to do. For example, it has not removed the following disgraceful "editor's choice" letter from another of Salon's articles attacking Judge Boyle:

And Boyle is different from the rest of the GOP sewer precisely how?

These days with Republicans, the anomaly is when they're not openly whoring for the robber barons who greased their path. I mean, isn't "quid pro quo" the official Republican motto? And why would you think this crooked lawyer who got foisted into multiple judicial benches would behave ethically in the first place? If Hello Kitty Frist had any part in putting this guy up, you pretty much know he's someone the Right People can rely on when they need that fix to be in. The only ones who are losers are those of us outside the gates to St. Reagan's shining gated community on the hill.

---Jackson Griffith

Here's a screen shot to preserve this "editor's choice" letter, in case Salon has the good sense to remove the "editor's choice" designation from this letter too:

By the way, Salon also has yet to append any acknowledgment to any of its hit pieces about Judge Boyle that the author of those hit pieces is employed by an organization which receives major funding from George Soros, as we previously mentioned here.

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Posted at 4:19pm on Jul. 18, 2006 Roseborough Out, Gilbert In

By AndrewHyman

Looks like the ABA's Committee of Federal Judiciary is getting a new member: Leonard H. Gilbert, a partner in Holland & Knight's Tampa office. He'll represent the Eleventh Circuit. His predecessor was quite a left-wing activist.

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Posted at 12:16pm on Jul. 18, 2006 Mark Follman on the Boyle Nomination

By AndrewHyman

The Associate News Editor of Salon, Mark Follman, responded today to a recent letter to the editor in the Washington Times from Lars Liebeler, in which Liebeler defended Fourth Circuit Nominee Judge Terrence Boyle. Follman writes:

Boyle has â₦ claimed in his letter to Senate Republicans that he did not own Quintiles stock during the 2001 case. Liebeler says that "fact" was confirmed by Boyle in "a letter from his accountant," which was made available to the full Senate. Though it would seem to require a true leap of legal imagination, perhaps Boyle simply made mistakes in his 2001 and 2002 disclosures with regard to owning and selling Quintiles stock.

Despite Follman's reluctance to imagine that judges can occasionally make innocent mistakes, itââ‚â„¢s not just Liebeler and Boyle who are saying that Boyle owned no Quintiles stock during the 2001 case. Senator Elizabeth Dole has also said so publicly:

Salon.com even criticizes Judge Boyle for owning stock in Quintiles Transnational, a pharmaceutical company, and then participating in a case involving that firm. It turns out that Judge Boyle sold any Quintiles stock he owned in 2000 ââ‚” before the case, Quintiles v. WebMD, was filed in 2001.

Salon says that itââ‚â„¢s difficult to imagine that a judge (or his accountant) can make an inadvertent error. Donââ‚â„¢t believe Salon. If Judge Boyle had placed insufficient postage on an envelope, Salon would be imagining that he intentionally defrauded the postal service. Salon has yet to mention any of the prominent Democratically-appointed judges who have also made innocent errors related to conflict of interest, including such luminaries as Supreme Court Justice Ruth Bader Ginsburg, and Ninth Circuit Judge Harry Pregerson, among others.

Since the beginning of May, Judge Boyle and the White House have acknowledged that he made a small number of inadvertent and harmless recusal errors, and he has taken steps to make sure it doesn't happen again. Unfortunately, Salon has taken no steps to inform its readers of what the U.S. Supreme Court has been saying for decades on this subject:

A conclusion that a statutory violation occurred does not, however, end our inquiry. As in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance. There need not be a draconian remedy for every violation of 455(a). It would be equally wrong, however, to adopt an absolute prohibition against any relief in cases involving forgetful judges.

Salon apparently believes it's more important to let its readers know that the recusal issue "is simply another Boyle on the butt of Bushââ‚â„¢s administrative policy."

UPDATE: Regarding the last paragraph of this post, Salon has now corrected itself, as described here.

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Posted at 6:47pm on Jul. 17, 2006 Graham, Harrison, and Whelan on Judicial Nominations

By AndrewHyman

Senator Graham's office issued the following statement today about the Haynes nomination:

WASHINGTON ââ‚“ U.S. Senator Lindsey Graham (R-South Carolina) today made this statement on the nomination of William J. Haynes to the 4th Circuit Court of Appeals. ââ‚Å“I understand several Senators on the Judiciary Committee, including the Chairman, have submitted additional questions to Mr. Haynes. It is my belief these questions should be answered in a relatively quick manner by Mr. Haynes. ââ‚Å“After all relevant information is received and reviewed, I stand ready to vote.â₝

Note that Marion Edwyn Harrison had a piece last month questioning the propriety of military officers becoming deeply involved in the judicial nomination process. And, Ed Whelan over at Bench Memos has a post today titled, "ABA Again Stiffs Specter on Wallace Nomination."

Hat Tip: RNLA for the Harrison piece.

UPDATE: The ABA altered Judge Boyle's rating today. He's now rated as "qualified" by a substantial majority, and rated "well-qualified" by a minority. Hat Tip: Nomination Observer.

UPDATE #2: Over at Power Line, Paul Mirengoff says: "While Lindsey Graham publicly insists that he is not denying Fourth Circuit nominee Jim Haynes an up-or-down vote, all indications are that he is working overtime behind the scenes to do just that."

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Posted at 4:35am on Jul. 17, 2006 News About Haynes and Boyle Nominations

By AndrewHyman

The July 17 Washington Times reports that Fourth Circuit nominee William Haynes has clarified by letter some of his recent testimony before the Judiciary Committee.

Also, there's a very enlightening letter to the editor in the July 16 issue of the same newspaper:

Salon's bias

In her letter to the editor on July 5, Joan Walsh, the editor-in-chief of Salon.com, attempts to refute Senator Elizabeth Dole's robust defense of Judge Terrence Boyle. Miss Walsh states that Salon is a "news organization, not a left-wing advocacy group," and that Salon "takes accuracy very seriously." Both claims are false.

As Mrs. Dole made clear in her editorial, it is now well established that the infractions alleged against Judge Boyle in the Salon.com series are either plain wrong or truly trivial. Take the Quintiles case as an example. Contrary to Salon's report, Judge Boyle did not own Quintiles stock during the pendency of a Quintiles case -- he sold it in 2000, before the case was even filed (a letter from his accountant, made available to all senators and staff, confirms the facts).

Salon's dogged pursuit of false or immaterial issues suggests that Salon is less concerned with accuracy and substance that its own advocacy. Despite Ms. Walsh's assertion that Salon.com is a "news organization, not a left-wing advocacy group," the fact is that the so-called "investigation" published by Salon was nothing but a piece prepared by a reporter for the "Center for Investigative Reporting," as part of a project "primarily funded" (in its own words) by George Soros' Open Society Institute.

We're frankly surprised that Miss Walsh now attempts to distance Salon from its liberal, left-wing heritage. David Talbot, the founder of Salon, has proudly stated: "I come out of a tradition of liberal journalism, left-wing journalism." And Miss Walsh, for her part, stated in an interview given upon her ascension to the editor-in-chief position at Salon, that she was depressed that "so many of us liberals" were surprised that President Bush won the 2004 election.

Furthermore, when asked: "As a left-leaning site that incorporates both news and opinions, what have been the major issues arising from George Bush's reelection?" Miss Walsh opined that "there's plenty of room for smart critical coverage, both of the Bush administration and its hubristic overreaching on Social Security and Iraq and the deficit, as well as of the battle for the soul of the Democratic Party."

Strictly a "news" organization? On the contrary, there appears to be "plenty of room" at Salon for left-wing advocacy of its own views, and the most recent Soros-funded attacks on Judge Boyle fall squarely in this camp.

LARS H. LIEBELER

Washington

I had some similar observations about Salon, here.

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Posted at 11:38pm on Jul. 15, 2006 Weekend Open Thread

By AndrewHyman

Comments are invited.

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Posted at 1:04am on Jul. 15, 2006 Attorney General Gonzales on the Hamdan Decision

By AndrewHyman

Today, the Chicago Tribune reported:

Gonzales took issue with the court's reasoning that Al Qaeda combatants were covered by a section of the [Geneva] conventions, Common Article 3, that guarantees humane treatment and sets minimum standards for court proceedings even though the terrorist network is neither a nation nor a signatory to the treaty that outlines rules for war.

"As a lawyer, I think words should mean something, so when I read a treaty that says it applies to conflicts 'not of an international character,' I take those words to mean what they say. . . . I give advice on words as I read them, as I interpret them."

The Bush administration had argued that Al Qaeda is an international organization and the war on terrorism is international in scope; hence, it failed to fit the definition of "a conflict not of an international character" covered by Common Article 3.

As I've said elsewhere, I believe the dissent was clearly correct that the Court had no jurisdiction to hear this Hamdan case in the first place. In any event, Attorney General Gonzales is right about the meaning of Article 3. The Geneva Conventions refer to a "conflict not of an international character" that is ââ‚Å“occurring in the territory of one of the High Contracting Parties.â₝ What could be more clear than that the conflict with Al Qaeda is occurring internationally? And since when is a reasonable treaty interpretation by the President entitled to no deference or respect from the judiciary?

Gonzales is right, and the Court is wrong. As Justice Breyer said earlier this month, "Judges, too, are capable of errors." He would know. In Hamdan, he signed on to an exceedingly narrow interpretation of the word "international" that blatantly contradicts the use of that same word elsewhere in the Geneva Conventions (e.g. see Articles 35 and 125).

UPDATE: There's a Comment in the March 2006 issue of the Harvard Law Review that also addresses this contradiction. See here.

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Posted at 7:43pm on Jul. 14, 2006 Two New District Court Nominations

By Dave II

The President keeps it rolling today with two nominations to the federal trial level. Nora Fischer Barry has been nominated to the U.S. District Court for the Western District of Pennsylvania, and Sara Elizabeth Lioi has been nominated to the Northern District of Ohio. We break it down by nominee below the fold!

Nora Fischer Barry is currently a partner at the Pittsburgh firm of Pietragallo Bosick & Gordon. She graduated from Notre Dame Law School. She will replace Judge Robert Cindrich, a Clinton appointee, who left to become chief legal counsel to the University of Pittsburgh Medical Center. Fischer will be the nineteenth judge Bush appoints to the Pennsylvania District Courts; Clinton appointed fourteen.

Sara Elizabeth Lioi is currently the Presiding Judge for the Stark County Court of Common Pleas in Ohio. She went to law school at Ohio State University, and will replace Judge Lesley Brooks Wells, another Clinton appointee. Lioi will be the eighth judge Bush appoints to the Ohio District Courts; Clinton appointed thirteen.

It's always pleasant news when Bush gets to replace his predecessor's judges.

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Posted at 2:04pm on Jul. 14, 2006 The Last Elevation of a Reagan Judge

By AndrewHyman

Judge Boyle may turn out to be the last Reagan-appointed judge nominated for a higher court. What a joke it would be if a GOP President and GOP Senate now knuckle under to a Soros-funded smear campaign.

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Posted at 10:13am on Jul. 14, 2006 Haynes in Trouble

By aurel

By the looks of it, the nomination of William J. Haynes II to the Fourth Circuit Court of Appeals, is in serious trouble. According to reports in the Washington Times (and elsewhere): "Senators from both parties expressed concern yesterday over President Bush's nomination of William J. Haynes II to the Richmond-based circuit bench, heightening the likelihood that the nomination will be filibustered or outright defeated. " In particular, Republican senator Susan Collins, a liberal Republican from Maine who is usually a dependable vote for the Administration's nominees, has said she has "a lot of concerns". At least half of the "Gang of 14" have apparently publicly voiced concerns over the Haynes nomination, so it looks like Mr. Haynes doesn't have the votes to be confirmed. This site nevertheless hopes for a vote on the Senate floor. If Mr. Haynes is defeated, so be it. But a filibuster denying him an up-or-down vote would be another troubling precedent.

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Posted at 4:58pm on Jul. 13, 2006 Burr, Dole, and Evans on the Boyle Nomination

By AndrewHyman

The News and Observer in Raleigh has an article today reporting that:

U.S. Sen. Richard Burr, who has been pushing for a vote, said Boyle responded fully to the allegations. "They made this request and Judge Boyle has fulfilled the request," Burr said. "At the end of the day, this is a decision Bill Frist and Arlen Specter have to make." U.S. Sen. Elizabeth Dole said that Boyle's response "provides a powerful and convincing refutation of the frivolous and politically motivated charges that have been made against him."

Boyle should at long last get a vote on the floor of the Senate. He hasn't had a cloture vote, much less an up-or-down vote, and it's high time he did.

Meanwhile, Salon.com has yet another hit piece up about Judge Boyle. Ed Whelan has a good rebuttal to this latest mudslinging, over at Bench Memos.

Several letters to the editor were submitted to Salon regarding its latest article about Boyle. According to Salon, its "editors will review the letters posted to an article and mark those they feel are most worth readers' attention as ââ‚ËœEditors' Choice.ââ‚â„¢ Signed letters will receive preference. Anonymous letters will be selected only in special cases.â₝ Hereââ‚â„¢s one of the letters that Salonââ‚â„¢s editors reviewed today, and felt ââ‚Å“most worth readersââ‚â„¢ attentionâ₝:

That's right, Salonââ‚â„¢s supposedly neutral and objective editors believe it's most worth readerââ‚â„¢s attention to read this: ââ‚Å“Let's just say that the ââ‚Ëœjudgeââ‚â„¢ is simply another Boyle on the butt of Bush's administrative policy. ââ‚“ AGJ.â₝ The editors of Salon are a disgrace.

The so-called ââ‚Å“newsâ₝ article to which this letter-to-the-editor refers is only marginally more objective than the letter. In the entire series of hit pieces by Salon, not one word has been uttered about the many other judges who have inadvertently made harmless errors regarding conflict of interest.

The author of the Salon hit pieces is Will Evans, of the Center for Investigative Reporting. CIR has its own conflicts of interest, according to Accuracy in Media:

Except for some payments to two columnists, Abramoff tried to influence politicians. Soros has a far more impressive record of influencing the press. Soros has put some of his massive fortune into press groups like Investigative Reporters & Editors (IRE), the Fund for Investigative Journalism, and Center for Investigative Reporting.

Instead of allowing a good Judge's reputation to be ruined by the likes of George Soros, perhaps the Senate ought to pay heed to what the U.S. Supreme Court has said on this subject, in LILJEBERG v. HEALTH SERVICES ACQUISITION CORP., 486 U.S. 847 (1988):

A conclusion that a statutory violation occurred does not, however, end our inquiry. As in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance. There need not be a draconian remedy for every violation of 455(a). It would be equally wrong, however, to adopt an absolute prohibition against any relief in cases involving forgetful judges.

Vote on Boyle.

UPDATE: As of July 18, Salon has removed the "editor's choice" designation from the letter mentioned above, asserting that it was chosen by mistake. However, Salon still has some cleaning up to do, as described here.

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Posted at 1:58pm on Jul. 13, 2006 Moore Held Over?

By Dave II

Strange but true. Andrew beat me by just a few minutes, but I just called SJC. Kimberly Ann Moore was the only judge on the agenda to be held over. I would have thought she was the least controversial of all the nominees since she is regarded as an expert in a field that the Fed Cir specializes in, so I'm very puzzled. I don't think it really amounts to much, but still, it's odd.

As Andrew said, Tenth Circuit nominees Neil Gorsuch and Jerome Holmes, as well as Bobo's favorite judge, Eighth Circuit nominee Bobby Shepherd got out of committee. District nominees Gustavo Gelpi and Daniel Jordan were also moved out. Hopefully, we will soon see some confirmations.

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Posted at 1:32pm on Jul. 13, 2006 Gorsuch, Holmes and Shepherd Approved by Judiciary Committee

By AndrewHyman

So says Mose. For more info about these three circuit court nominees, see the right-hand-side of the confirmthem home page, under the category "Circuit Nominees."

Meanwhile, the Gang of 14 is meeting this afternoon on the William J. Haynes nomination. Video of the Haynes hearing from Tuesday is available here.

Hat Tip: How Appealing.

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Posted at 7:22pm on Jul. 12, 2006 Liberal Judges Have Erred Too

By AndrewHyman

Ed Whelan has an excellent post over at Bench Memos, pointing out that Judge Boyle isnââ‚â„¢t the only judge in history whoââ‚â„¢s made a harmless error regarding conflicts of interest. And, in case you missed it, here's Judge Boyle's own explanation of what happened (and didn't happen).

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Posted at 7:11pm on Jul. 12, 2006 Chester Straub for SCOTUS?

By AndrewHyman

In the previous post, Dave suggested that President Bush might want to nominate Chester Straub for SCOTUS. But I'd respectfully disagree. Judge Straub may be an excellent judge, but he would be the oldest SCOTUS nominee in history. As Dave said, "it's crazy." He was born in 1937, and at age 69 would be even older than Horace Lurton, who (at age 65) was the oldest SCOTUS appointee so far. Lurton served only five years on the Court. Judge Straub was nominated by President Clinton in 1998, and has written some good opinions. But, the oldest SCOTUS prospect who we currently have listed at the right-hand-side of the confirmthem home page is Mary Ann Glendon, who was born in 1938. And keep in mind that women have a longer life expectancy.

I'm not sure whether Karen Williams is a Democrat or a Republican, but her age would make her a much more plausible nominee than Chester Straub. Plus there are dozens of very solid GOP judges, and I don't see why anyone should rule them out (or downgrade them) as Bush nominees merely because they're not Democrats. That would seem kind of silly.

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Posted at 3:20pm on Jul. 12, 2006 What if Bush Nominated a Democrat to the Supreme Court?

By Dave II

It doesn't appear we will get the long-awaited retirement of a liberal Justice this summer. I think it has something to do with the fact that none is eager to be replaced by Bush, and why not wait till next year when the Republican control of the Senate is likely to be weaker?

But if that happened, what if Bush nominated an actual Democrat to the bench? I know, I know, it's crazy! The challenge to our knowledgeable readers is this: can you identify a Democrat judge you would actually accept or even want elevated to the Supreme Court?

The fact is, our commenters fight around here all the time about various Republican judges. It's practically the most fun activity on the whole site. But there are plenty of Republican judges that almost nobody wants to see elevated. Heck, Bush himself has appointed some that aren't even Republicans, like Barrington Parker on the Second Circuit.

But I wonder, might the reverse be true? Might there be some Democrat judges who have revealed themselves to be conservative jurists? If so, Bush could appoint one and appear extremely bipartisan and generous, while at the same time seating a conservative Justice. Everybody wins.

The challenging part is coming up with a Democrat judge who would be acceptably conservative. Here's my contender: Chester Straub of the Second Circuit. Confirmed in 1998, he dissented forcefully when the Second Circuit struck down the Federal Partial Birth Abortion Ban earlier this year, saying, "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable."

I want a judge who feels that way on the Supreme Court. In any case, a judge who feels that way would be the opposite of O'Connor: one who gets the important things right. I'm not saying great conservative judges should be passed over in the spirit of bipartisanship the next time a vacancy opens up, but I'm just wondering if there are actual Democrat judges who meet conservative standards, and would be better than some of the Justices we have now. I would love to hear from readers if they can think of other Democrat judges who might make good conservative Justices. Maybe there aren't any. But if there are it would be great to know about them.

It's a thought experiment, people. Do you accept the challenge?

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Posted at 2:53pm on Jul. 12, 2006 Business Meeting Tomorrow

By Dave II

As I predicted yesterday, tomorrow the Senate Judiciary Committee will consider six judges, four for the Circuit Courts and two for the District Courts. Tenth Circuit nominees Jerome Holmes and Neil Gorsuch, Eighth Circuit nominee Bobby Shepherd, Federal Circuit nominee Kimberly Moore, and District Court nominees Daniel Jordan and Gustavo Gelpi are all due to be voted out.

Gorsuch, Holmes, Gelpi, and Jordan have previously been delayed from a June 29th meeting. Tomorrow I will update who did or did not get moved to the floor.

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Posted at 2:02pm on Jul. 12, 2006 Miranda on Judicial Nominations

By AndrewHyman

Manuel Miranda of the Third Branch Conference has us on his mailing list, and we appreciate the info he sends our way. Today, he has a particularly informative statement, so here it is in full:

THIRD BRANCH CALLS ON SENATE TO DO MORE ON JUDGES

Boyle Responds to Frist/Specter; Time is Now to Confirm Respected Judge

Washington, D.C. - The Third Branch Conference, a coalition of grasstops leaders nationwide working to improve the federal courts, today exhorted Senate Republican leaders to do more on judges before their lenghty August recess.

The call comes now that Judge Terrence Boyle responded to a letter sent less than two weeks ago by Senators Frist and Specter.

In the 109th Congress so far, the Senate has confirmed only 46 judges. By comparison, the 107th confirmed 100 under Democrat control, the 108th confirmed 104. In the 103rd Congress, when the Senate last confirmed two Supreme Court justices (Breyer and Ginsburg), Democrats also confirmed 127 other Clinton judges.

"This is not apples to oranges, " said Manuel Miranda, chaiman of the Third Branch Conference. "Effort is effort. This Congress has so far taken fewer votes on judicial confirmations than any time since the first two years of the Reagan administration. It is the least accomplished Senate in 25 years. It is no wonder that the White House has trouble filling seats, with a Senate like this."

"One solid circuit court confirmation this year is not an accomplishment," said Miranda, former nominations counsel to Majority Leader Bill Frist. "The Senate must give an honest, up or down vote to Judge Terrence Boyle, William Myers and Jim Haynes just as Leader Frist has promised for all."

Boyle is presently the longest waiting judicial nominee in history, nominated in May 2001 and on the Senate floor for over one year; Myers has been filibustered for two years, Haynes is nearing three years in the Senate.

"Today George Bush's confirmation rate (70%) for circuit judges is the lowest of any president. The circuit courts stands at 10% vacancy rate. And yet the Senate walks slowly," said Miranda. "Leader Frist must end the silent filibusters in the 22 days he has left, and if he is obstructed, then the vote that matters must be the one in November when the people decide."

Well said.

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Posted at 10:48am on Jul. 12, 2006 Judge Boyle's July 5 Response

By AndrewHyman

Here's Fourth Circuit nominee Judge Terrence Boyle's July 5 response to a June 23 letter from Senators Specter and Frist.

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Posted at 1:19am on Jul. 12, 2006 Officer Almond on the Boyle Nomination

By AndrewHyman

As soon as we have a copy of Judge Boyleââ‚â„¢s response to the letter that Senators Frist and Specter recently sent to him, weââ‚â„¢ll make it available here at confirmthem. Of course, if Judge Boyle gives the Senators the kind of treatment that heââ‚â„¢s gotten from the Senate, then it may be fifteen years or so before he responds --- but probably heââ‚â„¢ll be much quicker than that.

In the mean time, let's consider a few of the many people who have recommended Judge Boyle for the Fourth Circuit. In addition to strong recommendations from his home state Senators (Elizabeth Dole and Richard Burr), and in addition to continued support from the White House, Judge Boyle has also gotten a lot of other plaudits too. See here and here for a few examples.

But thereââ‚â„¢s one recommendation that really stands head and shoulders above the rest. Itââ‚â„¢s from a retired police officer named George F. Almond of Cary, North Carolina. You can read his amazing story in these two newspaper articles from 2003 and 2004. In 2001, he was shot between the eyes in the line of duty, and somehow survived, although heââ‚â„¢s retired now for obvious reasons. Judge Boyle departed from sentencing guidelines in order to give Officer Almond's shooter life in jail, but the Fourth Circuit reversed, and the shooter was instead sentenced to 300 months.

Hereââ‚â„¢s what Officer Almond has to say about Judge Boyle, and I think this is especially pertinent given some opposition that the Boyle nomination has encountered from a few police organizations:

I am a medically retired Cary, NC police officer and a member of the NC Southern States Police Benevolent Association. I was Shocked to receive an email alert message from the PBA opposing the nomination of Judge Boyle to the Fourth Circuit Court of Appeals.

I want to go on record to say I fully SUPPORT the nomination of Judge Boyle to the Fourth Circuit Court of Appeals. I have personally witnessed Judge Boyle in action on the bench.

Let me share with you how this man supported me as a law enforcement officer. While doing a routine traffic stop on October 10, 2001, I was shot at point blank range between my eyes and was left for dead by a man, Emory Bivens, who was carrying drugs and weapons in his car. By the grace of God, I survived the gunshot wound although I suffer from many complications caused by it.

Fortunately, Bivens was caught by Federal, State, and Local authorities the next day. He was charged both state and federal for the shooting and transporting/selling of drugs while carrying a firearm. He pled guilty to those charges and showed no remorse for his actions. Judge Boyle ruled on the guilty plea entered by Bivens. To make the best decision regarding the sentencing, Judge Boyle took careful consideration of all the facts, especially in determining whether the circumstances were mitigating or aggravating. He asked for input from the prosecution, defense, and probation. Finally, Judge Boyle sentenced Emory Bivens to life in prison. By his ruling and personal remarks made to me, Judge Boyle showed concern and compassion for me and my fellow law enforcement officers who serve to protect society.

I find Judge Boyle to be a compassionate man of integrity, honesty, and intellect. I have the highest confidence that he would be a tremendous asset to the Fourth Circuit Court of Appeals and will indeed continue to support and protect the men and women of law enforcement who daily risk their lives to protect others.

Sincerely,

George Almond

Retired Cary, NC Police Officer

I received this from a very reliable source, and am proud to present it here, with a few typos corrected. Thank you Officer Almond.

For those who may be curious, the Fourth Circuitââ‚â„¢s reversal was in an unpublished per curiam opinion by Judges Wilkinson, Luttig, and King available here. Ironically and incidentally, the sentencing guidelines were held unconstitutional by the Supreme Court shortly thereafter.

Further info about the Boyle nomination can be found over at the right-hand-side of the confirmthem home page, under the category "Circuit Nominees."

UPDATE: Here's a July 12, 2006 article about the recusal problems of Ninth Circuit Judge Harry Pregerson, and here's another dated April 18, 2006. For background about Judge Boyle's recusal issue, see here.

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Posted at 9:57pm on Jul. 11, 2006 Business Meeting on Thursday

By Dave II

The full agenda is not up yet, but hopefully some judges will get moved to the Senate floor on Thursday. Tenth Circuit nominees Jerome Holmes and Neil Gorsuch, along with District Court nominees Daniel Jordan and Gustavo Gelpi are all due to be voted out. Eighth Circuit nominee Bobby Shepherd and Federal Circuit nominee Kimberly Moore, who both had hearings two weeks ago, may also be part of the meeting. We should find out sometime on Wednesday.

Also, the second hearing for Fourth Circuit nominee Jim Haynes was apparently not that productive as Republican Senator Lindsay Graham is still against him, though Graham has not yet said whether he will vote to prevent Haynes from leaving Committee. With all the noise he has made so far, I'm guessing Graham will try to bottle him up.

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Posted at 3:09pm on Jul. 11, 2006 Tuesday Afternoon Notes

By AndrewHyman

Elaine Donnelly of the Center for Military Readiness (CMR) has a piece in Human Events discussing the views of Fourth Circuit nominee William Haynes on women in combat. Also, Bloomberg reports that a group of military officers has written a letter expressing concerns about the Haynes nomination.

Meanwhile, the ABA is reportedly refusing a Judiciary Committee request for information in preparation for a July 19 hearing on the Fifth Circuit nomination of Michael B. Wallace.

And, The National Law Journal has an odd article asserting that the "tale of two conservative judicial nominees, one white and one black, shows that race can still be a sensitive area in federal court nominations." The two nominees discussed in the article are Jerome Holmes and Neil Gorsuch, but no mention is made of Gorsuch's views about race issues. And, the views of Holmes on affirmative action are pretty standard for conservative nominees.

Hat Tip: Bench Memos and How Appealing.

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Posted at 5:54pm on Jul. 10, 2006 Reminder About Haynes Hearing

By AndrewHyman

Fourth Circuit nominee William ("Jim") Haynes will get a second hearing tomorrow, July 11. You may want to contact your Senators to urge that his nomination at least be given the traditional courtesy of an up-or-down vote on the floor of the Senate, if he's reported out of committee. Fish or cut bait --- that's the least the Senate should do.

Confirmthem previously posted a letter from Senator Graham explaining his concerns about Haynes. Also last month, we posted a response to Senator Graham from a large assortment of conservative leaders:

National Coalition to End Judicial Filibusters

Senator Lindsey Graham

290 Russell Senate Office Building

Washington, DC 20510

June 2006

Re: The Nomination of Jim Haynes

Dear Senator Graham:

As representatives of the National Coalition, we would like to thank you for your response of June 8th to our letter dated June 6th. We would like to return the courtesy by respectfully responding to your concerns.

As you know, we are concerned about your lack of support for the nomination of William "Jim" Haynes to the U.S. Court of Appeals for the Fourth Circuit, which is effectively blocking him in committee nearly three years after he was nominated.

Your letter says that you look forward to hearing Mr. Haynes's answers to the questions that you and other senators will ask of him during a second Judiciary Committee hearing. But your opposition appears to be preventing such a hearing.

We note that when Mr. Haynes had his first hearing on November 19, 2003 you were absent. We are left to wonder whether in the two years that Mr. Haynes has been delayed, you have sent him any written questions that would have allowed him the courtesy of addressing your concerns.

You state that you are proud of the role you played in helping to confirm William Pryor, Priscilla Owen, and Janice Rogers Brown. As an integral part of that effort, you fought for the principle that judicial nominees with majority support are entitled to an up or down vote on the Senate floor. You even made the issue of obstruction of nominees part of your 2002 election campaign.

In fact, on November 11, 2003, on the eve of the grand 40 hour debate on judicial nominations, you said, "[T]he President's nominees deserve a straight up-or-down vote. If they get this, they will be confirmed." Your press release of November 11, 2003 is still on your site.

You were right. Unfortunately, your opposition to Mr. Haynes now threatens to damage this important principle. As Charleston's Post & Courier recently reminded you, "Nominees for judicial appointments deserve to be voted on" and Jim Haynes's "nomination is long overdue for debate."

We understand that you are troubled that some military leaders have expressed opposition to the Haynes nomination. However, their opposition is based largely on a misunderstanding of Mr. Haynes's role as general counsel of the Defense Department.

For example, they ignore the fact that the Department of Justice holds the final word on the interpretation of federal law within the executive branch, including decisions on the status of al Qaeda detainees under the Geneva Convention, the constitutionality of military commissions, and the initiation of a state of war on 9/11. Haynes was bound by the Justice Departmentââ‚â„¢s conclusions.

Nonetheless, the criticism you cite centers on holding Haynes responsible for, as Retired Rear Admiral Hutson put it, "the abuse of detainees by military personnel around the world." In fact, detainee abuses ââ‚“ such as those at Abu Ghraib ââ‚“ were in violation of the very policies Jim Haynes is now being blamed with crafting. Multiple investigatory commissions, most notably the Schlesinger-Brown Commission and Admiral Churchââ‚â„¢s investigation, have found no link between policies set in Washington, D.C. and the abuses at Abu Ghraib.

With regard to Guantanamo Bay, Haynes played a vital role in ensuring that interrogations there were conducted only after full input by the Defense Departmentââ‚â„¢s military and civilian attorneys. Moreover, the Wall Street Journal reports that Defense Secretary Rumsfeld rescinded his December 2002 decision to allow "coercive" interrogation techniques against al Qaeda detainees at Guantanamo "within six weeks after Pentagon lawyers took their concerns to Mr. Haynes, who then took them to Mr. Rumsfeld. . . . [I]ts reversal was due in no small part to Mr. Haynes."

Regarding the more subjective criticism of Jim Haynes, some of the military leaders you cite have no first-hand knowledge of the allegations they make. For example, John Hutson was the Navy JAG during the Clinton administration and never served with Mr. Haynes. He criticizes Haynes for being ââ‚Å“deaf to the advice of senior military and civilian lawyers,â₝ but he was not around to witness their interaction. Likewise, you cite Retired Brigadier General Edward Rodriguez of the United States Air Force Reserves. But, General Rodriguez left active duty in 1974, stayed with the reserves only until 1999, and never worked with Mr. Haynes.

You also suggest that, when military lawyers participated in the interrogation working group in 2003, their views about proposed interrogation methods were completely ignored. Yet the record is clear that the final policy document achieved general consensus. The military lawyers were heard out, and their concerns were addressed. Maj. Gen. Thomas J. Romig, the Army's top lawyer, testified before a subcommittee chaired by you, that the input "was accepted in some cases, maybe not in all cases. It did modify the proposed list of policies and procedures."

We share your great respect for members of the U.S. military and your desire to take their view into account. Because the War on Terror has been controversial, producing many disagreements both within and without the military, it is particularly important to take opinions on all sides into account.

Since your letter cites the criticism of three retired military officers, but fails to credit the comments of retired officers who support Mr. Haynes's nomination, we would like to share some of those comments with you in case you missed them.

In a letter to Sen. Arlen Specter, William K. Suter, former Assistant Judge Advocate General of the Army, said:

"I met Mr. Haynes when he was a military attorney in the Army General Counsel's Office. After he was appointed General Counsel of the Army in March 1990, I worked closely with him on a daily basis."

"Mr. Haynes is a superb lawyer in every respect. He performed his duties as the Army General Counsel with great distinction."

"He was always available to discuss pending legal issues. . . . He respected Judge Advocates and their opinions. He is also a man of great character and integrity."

"I am confident that he will be an outstanding appellate judge."

In a letter to Sens. Arlen Specter and Patrick Leahy, Michael Marchand said:

"On July 1, 2005, I retired as a Major General from the United States Army after 31 years service as a Judge Advocate. . . . In my most recent assignment as The Assistant Judge Advocate General of the Army . . . I was privileged to work with William J. Haynes in his capacity as General Counsel of the Department of Defense."

"In light of much inaccurate reporting on Mr. Haynes' performance as general counsel during these last four years that our Country has been at war, I feel compelled to speak on the record . . . In my experience, Mr. Haynes has been more inclusive of the Judge Advocates General and the senior service lawyers of the armed services than any General Counsel of the Department of Defense. He has consistently and repeatedly reached out to the senior lawyers of the Department of Defense. . . . He has been respectful of our views, even on those occasions when he may not have agreed with one or more of us. The Department and its legal community ââ‚“ and the Country ââ‚“ have been well served."

Woody Woodruff, former Chief of the Litigation Division in the Office of the Judge Advocate General, wrote in an e-mail:

"I worked with Jim Haynes on several very important issues while he was Army General Counsel. I found him to be bright, humble, hard-working, thoughtful, personable, and dedicated."

"The more I dealt with him the more impressed I became. . . . He was a great Army General Counsel."

"He was not one to play fast and loose with the law to craft a program to satisfy the political leadership."

"Jim Haynes served our nation remarkably well during difficult times and deserves to have his nomination fairly considered by the entire Senate."

We would also like to share with you the comments of Bernard Meltzer, professor emeritus at the University of Chicago Law School and a former assistant trial counsel to Supreme Court Justice Robert Jackson at the Nuremberg Tribunal. Professor Meltzer worked with Mr. Haynes in writing the regulations that govern the trial of detainees before military tribunals. In a letter to Sens. Specter and Leahy, Meltzer wrote:

"I was impressed by [Mr. Haynes's] informed and sensitive concern for the rights and legitimate interests of those who might be tried before a military commission. He contributed to a set of regulations that, in my view, represent an appropriate balance between the protection of individual defendants and the protection of the security of our country."

"I strongly recommend that the Committee and the entire Senate act to confirm his appointment."

Given the high regard in which Jim Haynes is held by those who have worked closely with him, it is easy to see why the American Bar Association twice gave him its highest rating, the Post & Courier called his qualifications "outstanding," and your colleague Sen. Hatch deemed Haynes to be "one of the better nominees that I've seen."

In light of Jim Haynes's outstanding qualifications, the only explanation for your lack of support is your stated disagreement with the Bush Administration policies that Haynes implemented as the Defense Department's general counsel. We respect your disagreement, but feel strongly that Haynes's nomination should not be used a vehicle for expressing it.

Policy disputes with the Administration should not carry over to the Senate's consideration of Mr. Haynes or any other judicial nominee.

Please consider that Mr. Haynes, if confirmed, will not be making policy. One reason he was nominated is that he understands and fully respects the vital difference between the role of a judge ââ‚“ interpreting the law without regard to personal policy preferences ââ‚“ and that of an executive branch official.

We are particularly concerned that your June 8 letter and the critics it quotes conflate policy disputes with improper behavior, frankly, in the way that Democrats do. For example, you ask whether civilian leaders like Haynes should be promoted "while military personnel are being punished?â₝

If you believe that Mr. Haynes has violated Department of Defense rules and deserves to be punished, that is certainly a legitimate basis for opposing his confirmation. Otherwise, please be mindful of the important distinction between policy decisions ââ‚“ even mistaken ones ââ‚“ and unlawful or unethical behavior.

If you, nonetheless, insist on evaluating Mr. Haynes's worthiness to be a judge based on the Administration policies he was involved with, we urge you to do so by asking the appropriate questions at his hearing and voting against him on the Senate floor.

By, instead, silently blocking his chance for a hearing, you are denying the American people an open and honest debate and imperiling the principle that qualified nominees deserve an up or down vote by the full Senate.

Moreover, by blurring the distinction between Democrats' repeated use of obstructionist tactics and Republicans' principled treatment of judicial nominees, you are harming the GOP's chances in November.

Sincerely,

Manuel Miranda, Third Branch Conference, NCTEJF chairman

Sean Rushton, Committee for Justice

Dean Mathew D. Staver, Liberty Counsel and Liberty University School of Law

Kelly Shackelford, Liberty Legal Institute

Tom Fitton, Judicial Watch

Phillip L. Jauregui, Judicial Action Group

Paul Weyrich, Coalitions for America

Dr. Carl Herbster, AdvanceUSA

Donald E. Wildmon. American Family Association

James L. Martin, President, 60 Plus Association

Andrea Lafferty, Traditional Values Coalition

Rev. Rick Scarborough, Vision America Action

Rabbi Aryeh Spero, Caucus For America

Kay Daly, Coalition for a Fair Judiciary

Joseph Cella, FIDELIS

Dr. William Greene, RightMarch.com

Chuck Muth, Citizen Outreach

Gary Palmer, Alabama Policy Institute

Dr. Don Racheter, Public Interest Institute (IA)

Kent Ostrander, The Family Foundation (KY)

Ed Holdgate, New Hampshire Right to Life PAC

Karen Testerman, Cornerstone Policy Research (NH)

Russell Johnson Ohio Restoration Project

Chris Dickson, "The Dickson/Chappell Report" (IN/OH)

Jeffrey Lord, author, The Borking Rebellion

cc: Senators Frist, McConnell, Santorum, Kyl, Hutchison, Dole, Specter,

Hatch, Grassley, DeWine, Sessions, Cornyn, Brownback, Coburn, Warner, Allen, and McCain.

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Posted at 2:12am on Jul. 10, 2006 Michael Greco Slams Dick Durbin and Pat Leahy

By AndrewHyman

ABA President and left-winger Michael Greco has an essay in the July issue of the ABA Journal. Greco discusses what he calls, "the myth of judicial activism." Says he, "[t]he mantra of 'judicial activism' is simply the rant of ideologues who disagree with a judgeââ‚â„¢s decision."

Illinois Senator Richard Durbin, for example, has said that Judge Janice Rogers Brown's ââ‚Å“record is that of a conservative judicial activist.â₝ Vermont Senator Patrick Leahy likewise accused the Rehnquist Court of "judicial activism of the most dangerous, anti-democratic kind." Greco apparently believes that Durbin and Leahy are ranting ideologues. He may have a point.

Senators Leahy and Durbin aren't the only ones whom the President of the ABA implies are ranting ideologues. Former NARAL President Kate Michelman declared that, "Priscilla Owen is a dedicated conservative judicial activist whose record on the Texas Supreme Court gives us grave concern." The Democratic Leadership Council has said that Justice Scalia, like Justice Thomas, is "a conservative judicial activist, rather than an advocate of judicial restraint." Jack Balkin and Sanford Levinson have written about "the conservative judicial activism of the Rehnquist Court --- including its recent line of federalism decisions." Jesse Jackson is a member of the same ranting family, having written that, "Alito is a right-wing judicial activist masquerading as a man of judicial restraint." Dahlia Lithwick concurs that Justice Alito, "neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary." They're all ranting ideologues --- purveyors of the myth of judicial activism --- according to Mr. Greco's essay.

Of course, Greco probably meant to say that liberal judicial actvism is a myth, but if so he would be wrong. Both liberal and conservative judicial activism are unfortunately all too real. Whenever a judge intentionally or accidentally is swayed by his or her own political or personal sentiments, that's judicial activism, and it's wrong. Whenever a court strikes down a statute as unconstitutional, based upon a clearly erroneous precedent of that court, then it's judicial activism, and it's wrong. Somehow I suspect that Mr. Greco would fall into that category, if he were to become a judge, since his judicial opinions would probably be just as sloppy as his essays in the ABA Journal.

Hat Tip: 2L in Texas.

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Posted at 11:16pm on Jul. 8, 2006 Splitting and Un-Splitting

By AndrewHyman

Howard Bashman has written a very good brief for splitting the Ninth Circuit:

Stated plainly, the question facing Congress is whether, even though the new 9th Circuit would remain too large in terms of caseload and number of judges, the seven states that would make up the new 12th Circuit -- Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington -- deserve to be freed from the 9th Circuit's current intractable problems and placed into a more normalââ‚“size judicial circuit. I continue to be of the view that a split of the 9th Circuit should occur, and thus the only remaining consideration is figuring out the best and fairest way to accomplish it.

As discussed previously at ConfirmThem, a Ninth Circuit split would lead to creation of a bunch of new circuit judgeships. Meanwhile, it appears that ConfirmThem is about to be unsplit from our parent site:

ConfirmThem, SwannBlog, etc. will be integrated into the main site so that the content of the Redstate family of sites is easy to find.

This means that all of our commenters will have to prove residency in one of the states that voted against Sen. John Kerry (just kidding).

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Posted at 2:20pm on Jul. 8, 2006 Saturday Open Thread

By AndrewHyman

Here's something to maybe talk about: the U.S. Senate races later this year. Right now, it's looking like possibly a two-seat loss for the GOP. The states most in play seem to be Minnesota, New Jersey, Pennsylvania, Missouri, and Rhode Island. The last three are currently GOP seats. Let's hope things perk up in the next few months. A good, solid bill to secure the borders might help, as would getting gas under three bucks per gallon. Capturing Bin Laden (and a SCOTUS seat) could help too.

On June 29, John Miller had this article titled "Senate Prospects." And, Modern Vertebrate gives a similar diagnosis.

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Posted at 1:36pm on Jul. 7, 2006 Haynes Hearing Next Tuesday

By AndrewHyman

I'm told that Fourth Circuit nominee William ("Jim") Haynes will get a second hearing next Tuesday, July 11. It's expected that Michael Wallace will get a hearing too, in two weeks. Also, look for the Senate Judiciary Committee to vote out a few circuit nominees later this month. The Senate continues to move slowly on nominations like those of Terrence Boyle, Randy Smith, and William Myers. Unfortunately, many Senators seem reluctant to do their jobs unless they get a lot of pressure.

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Posted at 8:06am on Jul. 7, 2006 Will today be the day?

By feddie

Lord, I hope so.

Florida beckons, Justice Stevens.

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Posted at 6:05pm on Jul. 6, 2006 Unusual Headline

By AndrewHyman

"Nominee Withdraws After Forgetting He Failed Bar Exam."

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Posted at 5:45pm on Jul. 6, 2006 Georgia Supreme Court unanimously upholds the state's constitutional ban on gay marriage

By feddie

You can read the rather interesting back-story on the opinion over at Southern Appeal.

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Posted at 11:38am on Jul. 6, 2006 Judicial restraint

By Irishlaw

Howard Bashman has the links up to the New York Court of Appeals decision finding no right to same-sex marriage in the state constitution. On first glance, it looks like this is an appropriately restrained decision, saying that the issue of marriage is properly left to the legislature to decide. I also appreciate that the court found that the definition of marriage does in fact survive the rational basis test, contrary to Goodridge's conclusion that the Mass. legislature could have had no rational basis whatsoever to recognize marriage as between a man and a woman.

I do note this quote from a plaintiff's attorney: "We will take this battle to the legislature.'' Now there's a concept!

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Posted at 3:15am on Jul. 6, 2006 Speculating About Things to Come

By AndrewHyman

Captain Ed at the blog Captainââ‚â„¢s Quarters discusses Sen. Kennedy's recent questions to judicial nominee Jerome Holmes, and Ed speculates:

At some point we will see the Judiciary Committee start to bludgeon nominees for associations with the Boy Scouts as evidence of their intolerance and animus towards women.

Meanwhile, the American Spectator is doing some speculating about Supreme Court vacancies. Details below the fold.

READY TO POUNCE

With the end of the Supreme Court session, rumors continue to float through Washington that yet another judicial retirement is imminent. About two weeks ago, the rumors began to quietly percolate that one of two liberal judges was looking to exit. Justice Ruth Bader Ginsburg is thought to be in weakened health and Justice John Paul Stevens, while believed to be in good health, is said to be growing weary.

Some people weren't buying it, at least for Stevens. "He's a horse. He has clerks that do much of the heavy lifting, and he still has good focus and energy despite his years for what he has to do," says a knowledgeable SCOTUS observer. Stevens is 86.

Regardless of the rumors, we hear the White House has not been idle on the Supreme Court front. The White House Counsel's office has been vetting potential nominees for almost six months, and according to White House insiders is prepared to move quickly with a nominee should something take place over the next couple of months of down time for the court.

No more judgislators.

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Posted at 6:03pm on Jul. 5, 2006 Wednesday Afternoon Confirmation Notes

By AndrewHyman

The Center for Investigative Reporting (CIR) has posted a "Boyle Timeline" at their aptly named website "Muckraker.org." Also regarding the Boyle nomination, Joan Walsh of Salon.com has a very long letter in the Washington Times responding to an excellent June 29 op/ed by Senator Elizabeth Dole. Walsh protests that, ââ‚Å“Salon â₦ is a news organization, not a left-wing advocacy group." However, she's curiously silent about what kind of organization her partner --- the Center for Investigative Reporting (CIR) --- is.

On another subject, twenty-four (24) circuit and district judges from across the Ninth Circuit recently wrote a letter on June 29 supporting a circuit split.

And, a couple weeks ago, Manuel Miranda of the Third Branch Conference was interviewed on WEBY 1330AM, in Northwest Florida. Here's a piece of the transcript:

INTERVIEWER: If you will pull out your crystal ball I would like to ask you whether the president will get another bite of the Supreme Court apple.

MIRANDA: I think he will. I think it is inevitable. You know it may even be as early as July 1 because John Paul Stevens has said that he wants to retire with a Republican president. You know he is a Republican and an old-fashioned sort of Nixon Republican. But he wants to retire and his wife wants to retire. In essence he has already retired. You know he lives in Florida most of the time and goes up to Washington only for oral arguments. So it is very likely that it could happen very soon. If not, it is almost certain that it will happen within the next few years before this president leaves office.

Come on Justice Stevens/Souter/Ginsburg, spice up our summer.

Hat Tips: Howard Bashman, plus our commenters Keenan and Two Cents.

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Posted at 10:11am on Jul. 5, 2006 Wednesday Morning Confirmation Notes

By AndrewHyman

The Washington Times has this report today about Jerome Holmes:

Just six months after quitting the all-male social club to which he belonged for 50 years, Sen. Edward M. Kennedy is questioning one of President Bush's nominees to the federal bench about his membership in an all-male dining club.

Human Events had an interview a couple weeks ago with Mark Smith about his new book, Disrobed: The New Battle Plan to Break the Left's Stranglehold on the Courts.

The Third Branch Conference says there are 36 nominees waiting in the Senate now, with only 46 confirmations in the 18 months of this Congress. "By comparison, the 103rd Congress that confirmed Breyer and Ginsburg also confirmed 127 other Clinton judges."

Meanwhile, Democratic blogger Nate Nelson at the "Gadfly of Thought" says:

It's disheartening to me to see that even after the devastating loss of the 2004 election, Democrats still aren't taking pro-life voters and politicians (even those within their own party) seriously. The commitment of the Democratic establishment is still to Roe v. Wade. Although I doubt I will ever be able to bring myself to vote Republican, I do hold out hope that Justice John Paul Stevens will retire while a Republican President is in office. That will either confirm my belief that the Republicans don't really want abortion to end, if they fail to nominate and confirm a pro-life replacement; or it will overturn Roe v. Wade. I'd be happy with either outcome, and much happier with the latter.

His post is titled, "Life, Liberty, and the Pursuit of . . . Abortion?"

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Posted at 7:54pm on Jul. 4, 2006 The Greatest Statement of Any From the Founders

By AndrewHyman

The Declaration of Independence is a great document, and what John Adams said in July of 1776 (quoted by Feddie in the previous post) is also certainly a historic statement. But of all the millions of words uttered by the founders of the United States, which ones were the greatest? You're invited to weigh in with comments.

My nomination would be a warning that John Adams sounded fifty years later, on June 7, 1826, less than a month before he died:

[M]y best wishes, in the joys, and festivities, and the solemn services of that day on which will be completed the fiftieth year from its birth, of the independence of the United States: a memorable epoch in the annals of the human race, destined in future history to form the brightest or the blackest page, according to the use or the abuse of those political institutions by which they shall, in time to come, be shaped by the human mind.

Gary Wills has written that, a full lifetime later, the jury was still out. And, it's still out.

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Posted at 8:51am on Jul. 4, 2006 Happy Fourth of July!

By feddie

Or as itââ‚â„¢s known in England: ââ‚Å“The day we got our collective hindquarters handed to us by a bunch of farmers with pitchforks.â₝

I am apt to believe that it [the Declaration, of course] will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.

You will think me transported with Enthusiasm but I am not. ââ‚” I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. ââ‚” Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not.

-John Adams

May God continue to bless these United States of America.

(cross-posted at SA)

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Posted at 2:57am on Jul. 3, 2006 Putting on the Heat

By AndrewHyman

Charles Hurt has an article in the July 3 Washington Times titled, "Hill GOP to put heat on Bush for more judges." Hurt reports:

In coming weeks, Republicans on Capitol Hill plan for the first major push on judges since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. were confirmed to the Supreme Court.

That's good news. And, here's our quote for the day:

We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.

ââ‚”Chief Justice John Marshall, in Cohens v. Virginia (1821). Not that we're alluding to Hamdan or anything.

Hat Tip: Ernest T. Bass for the Hurt article.

UPDATE: Here's a discussion about the jurisdictional question in the Hamdan case.

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Posted at 4:34am on Jul. 2, 2006 Sunday Open Thread

By aurel

Fire away....

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Posted at 9:57am on Jul. 1, 2006 Saturday Open Thread

By aurel

Fire away....

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Posted at 3:34pm on Jun. 30, 2006 Hamdan

By AndrewHyman

Yesterday, the Supreme Court decided the case of Hamdan v. Rumsfeld, by a vote of 5 to 3 (Chief Justice Roberts recused). Some vociferous reactions against the decision can be found here at National Review. As you probably know, the case involved detainees at Guantanamo. The Court began by addressing whether it even had jurisdiction to consider the case, and this issue of jurisdiction is a matter of statutory interpretation. The statute at issue is the Detainee Treatment Act of 2005 (DTA), which can be found here.

Among other things, the DTA amended the United States Code. 28 USC 2241 now has this new subsection (e):

(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or (2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--(A) is currently in military custody; or (B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.

This seems like an extremely straightforward statement limiting the courts' jurisdiction, and yet the Supreme Court decided yesterday in Hamdan that actually this statement does not apply to pending cases, and instead only applies to future cases. But there is no exception in section 1005 of the Detainee Treatment Act of 2005 (DTA), limiting 28 USC 2241(e) to future cases. The DTA includes exceptions to 28 USC 2241(e) that give jurisdiction to the DC Circuit, but those exceptions apply to both pending and future cases.

If, as five Justices contended yesterday in Hamdan, 28 USC 2241(e) does not apply to pending cases, then why in the world would Congress have written an exception to 28 USC 2241(e) that explicitly does apply to cases that are ââ‚Å“pending on or after the date of the enactmentâ₝? It makes no sense to me.

Moreover, as the dissent pointed out, "the Court ... cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation."

This seems like a VERY troubling SCOTUS decision, if I understand it correctly. Even though it's not based on the Constitution --- and therefore Congress can revise the DTA whenever it likes --- still that doesn't justify reading the DTA in such a strange way.

If you consider a Supreme Court retirement as a surrender of jurisdiction, then Hamdan suggests that things donââ‚â„¢t look very good for a retirement any time soon.

UPDATE: Here's an old discussion from SCOTUSBlog on this issue (from back in January). One commenter correctly said that, "While Senator Levin succeeded in getting express application language removed, he did not get express nonapplication language inserted."

By the way, here is the Solicitor General's brief on the jurisdiction issue.

The Court stated, "The Act is silent about whether paragraph (1) of subsection (e) 'shall apply' to claims pending on the date of enactment." Yes, and the Act is also silent about whether it applies to "chauffeurs."

It puzzles me why none of the justices in Hamdan mentioned the rule of expressio unius, in connection with the jurisdiction issue. The DTA listed two exceptions to the removal of jurisdiction --- in 1005(e)(2) and 1005(e)(3) --- and it seems to me this should trigger expressio unius. Ironically, Senators Graham and Kyl argued that this rule should not apply to another aspect of the DTA.

For a discussion about this whole jurisdiction issue, see here.

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Posted at 2:09pm on Jun. 30, 2006 Remaining Vacancies (Updated)

By Dave II

Now that the White House has finally gotten on board with filling some vacancies, which vacancies remain without a nominee? Let's break it down by Circuit!

First Circuit

1. Bruce Selya (Reagan appointee, Rhode Island) (future vacancy in December)

Third Circuit

1. Richard Nygaard (Reagan appointee, Pennsylvania) (vacancy since 2005)

2. Sam Alito (G.H.W. appointee, New Jersey) (vacancy since 2006)

3. Franklin Van Antwerpen (G.W. Bush appointee, Pennsylvania) (future vacancy in October)

Fourth Circuit

1. Francis Murnaghan (Carter appointee, Maryland) (vacancy since 2000)

2. Michael Luttig (G.H.W. Bush appointee, Virginia) (vacancy since 2006)

D.C. Circuit

1. Harry Edwards (Carter appointee) (vacancy since 2005)

That's only seven vacancies left to be filled. Only one of those (Murnaghan's) should have been filled long ago, and two are future vacancies that excuse the lack of a replacement for right now. Also, the other vacancy on the D.C. Circuit is highly unlikely to be filled as a lot of Republicans don't think that court needs 11 judges, much less 12.

As it is, my understanding of Senate tradition and feet-dragging indicates that any nominees the White House were to make in the future would not be confirmed this year. Apparently, the Senate traditionally does not deal with nominations made after the July 4th recess, and there would not be sufficient time to process them through anyway at the Senate's slow slow pace. We must content ourselves with the confirmations we get from the existing nominees. Currently, there are 14 Circuit Court nominees pending. Hopefully, at least 10 of them will be confirmed before the 109th closes its doors. (I am only counting on one confirmation from among Myers, Smith, Boyle, Haynes, and Keisler.) I am sanguine about Bobby Shepherd, Kimberly Moore, Jerome Holmes, and Neil Gorsuch getting confirmed in July.

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Posted at 11:42am on Jun. 30, 2006 No indication of retirement, plus...

By Quin

Okay, three separate people who usually know what they are talking about all have downplayed the idea of a Stevens retirement this morning. Then again, the WHOLE idea of "advance" notice, a la Insider, is, I'm told, just NOT how things are done. I've made clear in all my posts on Stevens (except the cryptic, semi-humorous ones on a thread a few days back that Mortimus correctly characterized) that all we can do from inside the courthouse is read the tea leaves, because nobody knows. On the other hand, there CAN be leaks as to who is on the White House's potential short list if a vacancy were indeed to occur. But if Stevens retires, I'll be it will be news even to Breyer. But this time, I believe the White House is quite ready when it happens.

Now, on another topic, I am reliable informed that Keisler is terrific (DC Circuit) , which confirms my earlier impressions of him. I'm also told that Murphy (6th Circuit) has been thoroughly vetted and that he is perfectly clean (despite the Schlussel allegations), and that he too is terrific in terms of intellect, competence, and approach. Schlussel had me wondering about him, but I trust my sources, so I am greatly relieved by assurances that Murphy is good to go.

For what it's worth, my sources are sanguine about almost all the circuit nominees forwarded recently.

I still want a Stevens retirement, and I want Haynes et al to be confirmed, and I want movement on Randy Smith and all the new nominees...but at least good nominees are, apparently, finally IN the pipeline rather than being promised for the pipeline in the future.

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Posted at 10:54am on Jun. 30, 2006 Free Republic: 'tis the season for a Supreme Court Retirement

By AndrewHyman

This post at Free Republic deals with a topic that may be familiar to some here who have visited our comment threads.

As the Supreme Court wraps up its session, there has been so far fairly little attention paid to the fact that this is when U.S. Supreme Court retirements are typically announced....[O]f the last 14 retirements ... 9 announced their retirement between June 12 and August 3rd, a space of only seven weeks....

Given the recent drama in replacing Sandra Day O'Connor and Chief Justice Rehnquist, one might expect that there will now be a lull. There is no reason to expect that there will be. Liberal John Paul Stevens is 86 years old, and while there is no reason to expect him to be true to his word, given his history of contradictory rulings, he did claim he would retire under a Republican president. He is older than any of his colleagues on the court ever were; Harry Blackmun was the oldest, about 5 months youner. On the other hand, he might want to break some records, such as Oliver Wendell Holmes' record for oldest serving justice, or William O. Douglas' record for longest term. He is almost 3 years, and 4 years short of those marks, respectively. If he isn't out to meet some personal goal, history suggests he will soon retire; his longevity and age are both statistical outliers already.

The next most likely to retire is Liberal Ruth Bader Ginsburg. She has faced health struggles. God forbid anyone think I'm rooting for her to fall ill; her ailments seem safely in the past. But such battles do age people, and, at 73 years old, she is in the prime years for a Supreme Court Justice to retire.

It is not unthinkable that conservative Antonin Scalia might want to step down while President Bush is still in office; he is already 70. Center-left judge Anthony Kennedy, and liberals Steven Breyer and David Souter are also past government retirement age, at nearly 70, 68 and 67 years old.

These are the ages of each current justice:

John Paul Stevens, 86 years, 2 months

Ruth Bader Ginsburg, 73 years, 3 months

x-Antonin Scalia, 70 years, 3 months

Anthony Kennedy, 69 years, 11 months

Steven Breyer, 67 years, 10 months

David Souter, 66 years, 9 months

x-Clarence Thomas, 58 years, 0 months

x-Samuel Alito, 56 years, 2 months

x-John Roberts, 51 years, 6 months

These are the ages of some of the recent judges who retired very late:

Harry Blackmun, 85 years, 9 months

Thurgood Marshall, 83 years, 2 months

x-William Renquist, 80 years, 11 months

Lewis Powell, 79 years, 9 months

Warren Burger, 79 years, 0 months

x-Byron White, 76 years, 0 months

Sandra Day O'Connor, 75 years, 10 months

These are the retirement dates of the last fourteen justices to retire:

Abe Fortas, May 14th

Tom Clark, June 12th

Earl Warren, June 23rd

Lewis Powell, June 26th

Byron White, June 28th

Sandra Day O'Connor: Announced July 1st, postponed until January 31st due to Renquist's death

Potter Stewart, July 3rd

William Brennan, July 20th

Arthur Goldberg, July 25th

Harry Blackmun, August 3rd

William Renquist: September 3rd (died in office)

John Harlan, September 23rd

Warren Burger, September 26th

Thurgood Marshall, October 1

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Posted at 9:43am on Jun. 30, 2006 In You Case You Missed It

By aurel

But apparently, there has been an "ultraconservative trend" in recent Supreme Court jurisprudence and there are signals this trend is about to be "accelerated".

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Posted at 9:39am on Jun. 30, 2006 Fight over the Fourth

By aurel

From an article by T.R.Goldman of the Legal Times:

The politics of judge-picking have been a particularly virulent pox on the Senate over the past few years; lately, itââ‚â„¢s the U.S. Court of Appeals for the 4th Circuit where the battle lines are most closely drawn.

Strangely, there is no mention of the possibility of nominating Paul Clement for the Virginia seat, which is the obvious solution.

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Posted at 7:19pm on Jun. 29, 2006 Just Under the Wire

By Dave II

The White House has at last made a new nomination to the D.C. Circuit Court of Appeals. I'm sure many here will be happy to know that the President has picked Peter Keisler to replace John Roberts on the second most important federal court in the land. I'm sure some of our readers know more about Mr. Keisler than I do, so please add your comments. His DOJ biography says he clerked for Judge Bork and Justice Kennedy. The President seems to be fond of the Kennedy clerks lately.

Update: It's interesting to note that Keisler was once intended to replace Francis Murnaghan on the Fourth Circuit, but the Maryland Dems nixed that. Looks like the wait was worth it for Mr. Keisler.

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Posted at 6:11pm on Jun. 29, 2006 Senator Dole is on a Roll

By AndrewHyman

Senator Elizabeth Dole of North Carolina has an excellent op/ed in the Washington Times titled "Borking Boyle." It starts like this:

If you want evidence proving that the judicial confirmation process is in serious need of repair, Exhibit A would be Judge Terrence Boyle of North Carolina.

Also, NPR has a report today about judicial confirmations.

Additionally, Kim Loontjer of the RNLA has a report about the hearing for circuit nominees Bobby Shepherd and Kimberly Moore. That link will also take you to a letter that you can sign, calling on the ABA Standing Committee on Federal Judiciary to: (1) allow more transparency in the review process, (2) establish a clear recusal policy, and (3) select members for the Standing Committee who reflect the philosophies of the entire legal community. However, you must be a present or former member of the ABA, in order to sign.

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Posted at 4:45pm on Jun. 29, 2006 The Pre-Weekend Open Thread

By Dave II

Coming at you a little early due to popular demand!

UPDATE FROM ANDREW: Please use only one name with your comments. Using multiple names may be amusing, but it's also confusing --- additionally, it's against this blog's policy, and so you may get blacklisted for doing it. Thank you.

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Posted at 1:49pm on Jun. 29, 2006 Judges Matter

By Dave II

As the final day of the first Roberts Term demonstrated, there is still a great need for judges who can interpret the law without legislating. Unfortunately, the Senate Judiciary Committee did not vote out a single judge from its Executive Business Meeting this morning. Tenth Circuit nominees Jerome Holmes and Neil Gorsuch, as well as District Court nominees Gustavo Gelpi and Daniel Jordan will have to wait at least two more weeks before they get their shot.

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Posted at 12:03pm on Jun. 29, 2006 Final, But Not Infallible

By Carol Platt Liebau

Today, the Supreme Court has reminded us of the abiding truth of Justice Jackson's words: We are not final because we are infallible, but we are infallible only because we are final.

Almost unbelievably, it appears that the Court has ruled in favor of Osama bin Laden's driver, Salim Ahmed Hamdan, who has argued that the President lacks the authority to order military tribunals for prisoners at Guantanamo Bay, and instead that prisoners are entitled to a civilian trial or court martial. Slip opinion is here (thanks, commenter JPS3L!).

In this regrettable piece of work, the Supreme Court -- with Justices Stevens, Ginsburg, Breyer, Souter and Kennedy (!!) in the majority -- has effectively found that members of Al Qaeda are, in fact, entitled to some of the protections of the Geneva Convention, a conclusion that, quite frankly, has the potential to undermine the Court's credibility in a major way. (Clarification: Justice Kennedy did not agree with the portion of the majority's holding that radically misread the Geneva Conventions).

Chief Justice Roberts had to recuse himself in the case, as he joined the opinion on the D.C. Circuit that was overturned this morning. That means that without Kennedy's defection, the case would have gone the other way, as a 4-4 tie would have allowed the D.C. Circuit opinion to stand.

Once again, this is a compelling reminder that elections matter and that Supreme Court choice nominations are of infinite importance.

Seems to me that while the Congress is busy voting on resolutions condemning nameless entities, it might be worthwhile for them to weigh in on whether terrorists are entitled to any of the protections of the Geneva Conventions. And immediately, it needs to legislatively endow the President with the authority to establish and use military tribunals.

In the days after 9/11, who would have dreamed that the third branch and the fourth estate would make it so difficult actually to prosecute the war on terror? Who would dream that the latter would be betraying effective, legal programs that had been successful at catching terrorists -- and that the former would arrogate to itself the power to supply them with a panoply of rights that belong to prisoners of war fighting in uniform, but definitively not to those who, by stealth, move among us and attempt to murder innocent civilians.

Cross posted at CarolLiebau.blogspot.com.

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Posted at 1:12am on Jun. 29, 2006 The New Circuit Nominees: A Closer Look

By Dave II

There are four new Circuit nominees. Who are they? Where are they going? Let's break it down by nominee!

Debra Livingston for the Second Circuit. Livingston is currently a professor and dean at Columbia Law. She will replace Chief Judge John Walker (G.H.W. Bush appointee) who is set to retire at some undisclosed time in the future, presumably immediately after her confirmation. Currently, the Second Circuit is split 6-7 in favor of Democrats. Livingston's confirmation won't alter that balance. She will be Bush's fifth appointment to that court. (Clinton appointed 8!)

Judge Kent Jordan , 49, for the Third Circuit. Jordan is currently a federal district judge in Delaware, having been appointed by Bush in 2002 (he was confirmed by voice vote). Jordan will replace Judge Jane Roth, a G.H.W. Bush appointee, who took senior status at the end of May. Currently, the Third Circuit is in a state of flux, seemingly with new judges coming and going every other month. There are two more vacancies besides Roth's, and Judge Van Antwerpen has already announced he is also leaving in October. Earlier this year Michael Chagares was confirmed to replace another Bush judge who left, Michael Chertoff. In fact, Antwerpen was put on the Third Circuit by Bush just two years ago. So there's a lot of turnover. When it's all said and done in another year Bush will have appointed probably a total of nine judges to the Third, seven of whom will be active. At any rate, the Third is currently at 6-5 balance in favor of Democrats. Jordan's confirmation will restore it to a 6-6 split.

Finally, the two new Sixth Circuit nominees were announced: Stephen Murphy III and Ray Kethledge. I had a fairly extensive post about both a little while ago. You can access it here. Murphy will replace Susan Bieke Nielson, a Bush appointee who unfortunately died just a few months after her confirmation last year. Kethledge replaces James Ryan, a Reagan appointee. Bush has already appointed six judges to the Sixth to make it 8-6 in favor of Republican judges. It will be good to increase the lead, so to speak.

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Posted at 9:51pm on Jun. 28, 2006 Gorsuch and Holmes on the move?

By Dave II

The Senate Judiciary Committee is starting to move a little more quickly on judges. To that end, tomorrow it will hold an Executive Business Meeting to consider Tenth Circuit nominees Jerome Holmes and Neil Gorsuch, as well as District Court nominee Daniel Jordan and Gustavo Gelpi. There's a distinct possibility that at least one, maybe more, of these nominees will get confirmed before the Senate adjourns for the Independence Day recess.

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Posted at 8:04pm on Jun. 28, 2006 Too Much, Too Late?

By Dave II

Tonight, the White House nominated a whole passel of judges, including new Second, Third, and Sixth Circuit judges. It's going to take me a while to do my usual breakdown of the nominees but right off the bat I've got news that will probably make some of you breathe easier: Debra Livingston has been nominated to be a judge on the Court of Appeals for the Second Circuit, not the D.C. Circuit. No nominees to the D.C. Circuit just yet.

Briefly, Kent Jordan was nominated to replace Judge Jane Roth on the Third Circuit, Debra Livingston to replace Judge John Walker on the Second, and Ray Kethledge and Stephen Murphy to the Sixth.

Back with more throughout the night!

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Posted at 11:23am on Jun. 28, 2006 Op/Ed By Senator Elizabeth Dole

By AndrewHyman

Here's the full text of the op/ed, which is titled "Judge Boyle deserves a vote; Senate should stop stalling and vote 4th Circuit nominee up or down." And here are a few paragraphs:

Judge Boyle has never knowingly heard a case in which he had a conflict of interest, used his office for personal gain or abused the trust of the people he was appointed to serve. These allegations have emerged at a strategically determined time, in a frantic partisan attempt to distract from the merits of his nomination.

Unfortunately, the destructive effects of this conduct extend far beyond one judicial nominee. This negativity and political posturing discourage the best and brightest from public service and prolong vacancies on our courts.

Our federal courts currently have 47 open seats, 21 of which have been declared "judicial emergencies" -- including the seat to which Judge Boyle has been nominated. Vacant since July 1994, this seat is the longest federal judicial vacancy in the country, by nearly six years!

Let me repeat that. "!"

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Posted at 5:38am on Jun. 28, 2006 Flash Back a Year

By AndrewHyman

Here's what Quin was saying.

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Posted at 10:00pm on Jun. 27, 2006 Not Judge McConnell, Mr. President

By AndrewHyman

In the immediately preceding post, my friend Feddie speculated that a Supreme Court vacancy may be coming along soon (I think he may be right). Feddie also urged that Judge Michael McConnell of the Tenth Circuit Court of Appeals be nominated to fill that vacancy. A ton of different materials are already available on the internet about Judge McConnell, and many of them have already been addressed here at confirmthem. No point rehashing all that. Feddie points to a recent book review by Judge McConnell, so I thought Iââ‚â„¢d comment specifically about the book review. Hereââ‚â„¢s a snippet:

We must ask how the people manifest their will. I suggest they do so in three ways: by [1] creating and amending the Constitution, by [2] developing constitutional tradition, and by [3] electing representatives who enact legislation.

Itââ‚â„¢s number [2] that causes heartburn. Judge McConnell wants to use not just number [1] to strike down statutes, but he also wants to use number [2] to strike down statutes. Judge McConnellââ‚â„¢s theory is that the Supreme Court can make up some new right or legal theory, and then if some undefined number of people go along with that edict (i.e. go along with that ââ‚Å“judicial legislationâ₝) for some undefined period of time, then the edict is set in stone, and can be used to strike down statutes enacted according to number [3]. Says McConnell, ââ‚Å“overwhelming public acceptance constitutes a mode of popular ratification.â₝ Iââ‚â„¢m not going to get into a lot of detail about why Judge McConnell is wrong about this. I will simply quote the Supremacy Clause of the Constitution, with a couple numbers inserted in brackets:

This Constitution [1], and the laws of the United States which shall be made in Pursuance thereof [3]; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding.

The Supremacy Clause does not include Judge McConnellââ‚â„¢s number [2]. Unless I misunderstand, Judge McConnell is arguing for a federal common law that cannot be amended by legislators, and a federal common law that can be used to destroy the work of legislators. Long ago, a federalist named Alexander Hamilton argued that no such beast existed:

[T]o the pretended establishment of the [British] common and statute law by the [New York] constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction.

I hope such a beast will not prevail in our times. If public support for judicial review using some type of federal common law is "overwhelming," then I'm sure no one could possibly have any trouble going through the amendment procedure spelled out in Article V of the Constitution.

UPDATE: A commenter says, ââ‚Å“I think you are misreading Judge McConnell. He is simply holding Justice Breyer against Breyerââ‚â„¢s own standard of ââ‚Ëœactive liberty.ââ‚™â₝ I disagree; Judge McConnell was not simply holding Justice Breyer to Breyerââ‚â„¢s own standard of "active liberty." McConnell was also putting forth his own viewpoint about how the people express their will. Judge McConnell wrote:

Whatever may have been their original legal merit .... overwhelming public acceptance [of court decisions] constitutes a mode of popular ratification....

McConnell footnoted this remarkable statement by citing James Madison, which I think pretty well establishes that Judge McConnell was trying to express and buttress an opinion (see McConnell's footnote #69). Unfortunately, Judge McConnell did not thoroughly convey Madison's thoughts on this subject. Professor Caleb Nelson has explained:

Madison drew a sharp distinction between the question of "whether precedents could expound a constitution" and the question of "whether precedents could alter a law or constitution." Indeed, Madison thought this distinction "too obvious to need elucidation." While "precedents of a certain description fix the interpretation of a law," no one would "pretend that they can repeal or alter a law."

Thus, Madison believed that precedents only have force to the extent that they fall within a certain range of plausibility.

Additionally, the precedents cited by Judge McConnell involved Madisonââ‚â„¢s position with regard to a national bank. That was an instance where the judiciary had decided NOT to hold a statute unconstitutional. Thus, the legislative branch was then free to come to its own determination about whether creating such a bank would be constitutional. That was very different from the typical situation nowadays where SCOTUS overturns a statute, and leaves legislators unable to set precedents or reflect the will of the nation. So, Judge McConnell has --- I think --- not only inaccurately conveyed Madisonââ‚â„¢s views, but has done so with respect to an issue that is not even comparable to the present-day issue of rampant judicial negation of statutes.

UPDATE #2: The huge font in Update #1 quotes from a paragraph in Judge McConnellââ‚â„¢s book review that begins as follows: ââ‚Å“Active liberty could also help to provide a consistent theory of precedent.â₝ Then the paragraph explains how. The quote in huge font apparently expresses Judge McConnellââ‚â„¢s opinion of how active liberty could provide a consistent theory of precedent, so I don't think the quote in huge font is misleadingly out of context.

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Posted at 6:45pm on Jun. 27, 2006 Mr. President, please nominate Judge Michael W. McConnell for the next SCOTUS vacancy

By feddie

This, dear Andrew, is yet another reason why Judge McConnell should be elevated to the Supreme Court when the next vacancy opens up.

How can you not love a man who takes Justice Breyer to the woodshed in such a gentlemanly fashion?

Do yourself a favor, and read the entire review. It's brilliant.

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Posted at 6:10pm on Jun. 27, 2006 We're Entertaining Nominations

By AndrewHyman

Hey, I'm hearing a fairly solid rumor that a second circuit seat may be opening up soon. That circuit covers New York, Connecticut, and Vermont. Does anyone know of any good solid jurists having a conservative judicial philosophy (e.g. an originalist) who might make a good circuit court judge? Females? Minorities?

How about Wendy Long? Columbia University's Debra Livingston may be in the running for that seat instead of for the DC Circuit, but Livingston's judicial philosophy seems a bit murky.

UPDATE: A very helpful birdy chimes in as follows.

Two originalists who might be good 2d Circuit nominees are Robert Smith and Richard Kay.

Smith is a judge on the highest court in NY State, an avowed originalist, holds up Scalia and Thomas as his idols, and has been a strongly conservative voice on the Court. He practiced at Paul Weiss in NYC for many years, so is well known to the NY legal community. His only negative is his age: 61.

Kay is a distinguished law professor at UConn Law School, and one of the original academics to discuss the concept of originalism. He's more of an original intent originalist than an original meaning originalist. He's 56 or 57 years old.

Another NY Court of Appeals judge who was considered the most conservative on the Court before Judge Smith joined it is Victoria Graffeo. She's 53-54 years old, and has a very solidly conservative record. However, several months back, she wrote an opinion overturning a decades' old precedent that had to do with whether a plaintiff could sue for pain and suffering of a stillborn. She went through hoops to try and justify this radical change, but it was a poor showing. Perhaps she was trying to limit the scope of the decision, knowing the court was going that way anyway. Smith was the lone dissenter, and wrote a brief, scathing dissent. Still, Graffeo nine times out of ten is a strong conservative and perhaps the best we can hope for in NY.

Another academic, preferable to Livingston, is Thomas Merrill at Columbia.

Others are mostly practitioners known to be Republican and/or conservative:

Jennifer Newstead at Davis Polk (former General Counsel of OMB)

Charles Duggan at Davis Polk

Richard Pepperman at Sullivan & Cromwell

Robert Giuffra at Sullivan & Cromwell

Michael Garcia, US Attorney for SDNY. He's 44 years old.

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Posted at 10:54am on Jun. 27, 2006 Judge Boyle Gets Letter

By AndrewHyman

Robert Bluey reports that Senators Frist and Specter have written a letter to Judge Boyle in order to give him an opportunity to address recent criticisms of his recusal activities. Meantime, T.R. Goldman has a June 26 article in Legal Times titled, "Partisan, territorial spats plague 4th Circuit." Excerpts below the fold.

The politics of judge-picking have been a particularly virulent pox on the Senate over the past few years; lately, itââ‚â„¢s the U.S. Court of Appeals for the 4th Circuit where the battle lines are most closely drawn.

Of the three or four highly contentious circuit court nominees awaiting Senate confirmation, two are set to fill slots on the Richmond, Va.-based court: U.S. District Judge Terrence Boyle and Department of Defense general counsel William Haynes II, whose tenure at DOD includes controversial policies on detainees and torture.

A third slot on the court has been vacant since Baltimore attorney Francis Murnaghan Jr. died almost six years ago. Marylandââ‚â„¢s two Democratic senators, Paul Sarbanes and Barbara Mikulski, have long insisted that the Bush administration choose a lawyer with deep Maryland roots. The White House acceded in 2004 by nominating its chief domestic policy adviser, Claude Allen, the former secretary of health and human resources for the commonwealth of Virginia. Allen, who had never practiced in Maryland and whose 4th Circuit nomination lapsed in December 2005, resigned from the White House in February, shortly before he was charged with a felony theft scheme for allegedly defrauding department stores by returning items he had not purchased and claiming a refund.

And now, since the May 10 resignation of the circuitââ‚â„¢s intellectual star, Judge J. Michael Luttig, a squabble is brewing over which state ââ‚” North Carolina or Virginia ââ‚” will lay claim to Luttigââ‚â„¢s seat.

The 4th Circuit encompasses West Virginia, Virginia, Maryland, North Carolina, and South Carolina. It has long had a reputation as the most conservative of the 13 federal appellate courts. ....

Virginia, in fact, has four of the circuitââ‚â„¢s 15 seats, while North Carolina, the circuitââ‚â„¢s most populous state, has but one, occupied by Judge Allyson Duncan, whom Bush nominated in 2003. (A second North Carolina seat is awaiting Boyle...)

....

ââ‚Å“We found five cases in which there were strict technical violations in which Boyle should have recused himself,â₝ says a Senate GOP staff counsel. ââ‚Å“But they were administrative oversights. He ruled in over 16,000 cases; these five slipped through the cracks.â₝

Most Democrats, however, arenââ‚â„¢t buying that argument. ââ‚Å“A conflict of interest is a conflict,â₝ says a staffer for one Democratic member of the ââ‚Å“Gang of 14,â₝ the group of seven GOP and seven Democratic senators who vowed not to block any judicial nominations unless there were ââ‚Å“extraordinary circumstances.â₝

Haynes, who was first nominated in September 2003, is even more problematic. ââ‚Å“Thereââ‚â„¢s no way they want him discussed right now,â₝ says a senior Republican aide, referring to both the White House and Republican senators up for re-election. ââ‚Å“They donââ‚â„¢t want to talk about Abu Ghraib during election season.â₝ Besides, Haynesââ‚â„¢ nomination wonââ‚â„¢t get to the Senate floor without another hearing in the Judiciary Committee. Asked last week about holding another hearing on Haynes, committee Chairman Arlen Specter (R-Pa.) was carefully ambiguous. ââ‚Å“Iââ‚â„¢m considering it. Iââ‚â„¢m considering it,â₝ he said.

Hat Tip: Third Branch News

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Posted at 2:32am on Jun. 27, 2006 Specter Wants More Judicial Nominees

By AndrewHyman

He gave an interview at the Washington Times, and the germane part of the article is below the fold.

Although immigration has dominated his duties as chairman of the Judiciary Committee in recent months, Mr. Specter said his chief job is still to confirm Mr. Bush's judges, and he said it was a strong accomplishment to confirm both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. in the past year.

He listed a few pending fights over judges but said the onus is on the administration, which "has a lot of vacancies which they haven't filled." He said he's been expecting a list of nominees to fill many of those vacancies, but it hasn't materialized.

"Not only am I expecting it, I've been expecting it for about six weeks," he said.

"There is an issue here as to how long we're going to be able to confirm judges. You know the Democrats are salivating to take over the Senate, and if they think they can take over the Senate, it would be a very different confirmation process if Leahy is the chairman," he said. "So we need them yesterday."

Sen. Patrick J. Leahy of Vermont is the ranking Democrat on the committee.

He also said a "showdown" is looming between the Senate and the American Bar Association over another pending nominee, Michael B. Wallace, who has been named to the 5th U.S. Circuit Court of Appeals. Even though Mr. Wallace "has a good record," Mr. Specter said, the bar association has unanimously rated him "not qualified" and has not told the chairman why.

"We're not going to take their conclusions. If they want to have any standing, they've got to tell us reasons," Mr. Specter said. "It's not enough that the ABA says a nominee is not qualified. That's up to the Senate to decide."

Unless, of course, the Senate decides not to decide.

Hat Tip: Acroso.

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Posted at 8:48pm on Jun. 26, 2006 Dole and Burr: "Please Join Us in This Effort"

By AndrewHyman

The U.S. Senators from North Carolina have issued a very forceful "dear colleague" letter, on behalf of the nomination of Terrence W. Boyle to the Fourth U.S. Circuit Court of Appeals. Here is the letter (dated June 23) in pdf format.

In the letter, Senators Burr and Dole address the eleventh-hour allegations against Judge Boyle. They lament the effort by the online magazine Salon.com to "transform Boyle into a caricature of judicial greed," and they urge the Senate to get on with its constitutional duty: "We believe that it would be unfair --- and set a dangerous precedent --- to let Judge Boyle's nomination languish due to a handful of unintentional and trivial errors."

Exactly.

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Posted at 6:09pm on Jun. 26, 2006 Watkins and Kyl on Judicial Nominations

By AndrewHyman

William Watkins has an op/ed today in the Greenville News supporting the Haynes nomination.

Also, Hugh Hewitt interviewed Senator Jon Kyl on Sunday. The relevant portions are below the fold.

HH: Last week, you and other colleagues on the Judiciary Committee sent the President a letter, June 16th. I read it, and it's great, and you say, where are the nominees? 9 vacancies on the circuits, more on the district courts. Did you get a response yet?

JK: I have not seen a response yet, and time is wasting. There is a long lead time in getting nominees named, checked out, get the FBI check and all of that, set for hearing, the hearing has to occur, then it has to get through the Judiciary Committee, then you get it to the floor. The Democrats love to delay things on the floor of the Senate. So there's a long process, and there's kind of a rule of thumb, that once the August recess comes, you've only got one basic month of activity left in the Senate in an election year, and that's the month of September. And then, you're into October, which is the month before the election, and most Senators like to be home campaigning. So if you don't have it done by the end of July, the first of August, it's going to be very, very difficult to get it done. And with that lead time, that means pretty much, people need to be named now. And we still have these vacancies, and that's why we wrote the letter.

HH: And two of them on the D.C. Circuit, which is my pet peeve over that. Do you expect you'll get a nominee for that very soon?

JK: I don't know.

â₦.

HH: All right. I also had Senator Sessions, your colleague, on, and also I believe Senator Brownback. I'm not quite sure, maybe Duane can remember (He can. It was John Cornyn of Texas.-RB), talking about the 11th and 12th seat controversy. And Senator Sessions said he'll go for an 11th judge on the D.C. Circuit, but he's just not going to go for a 12th judge, because they don't have enough work. And then Alberto Gonzales came on the show, and said I think we can persuade them that the case load's gone up, because of the War On Terror. What's your view on that whole thing?

JK: Well, actually, Jeff is right, in the sense that earlier, say a decade ago, they really didn't need another justice on that court. But it's also true that circumstances have changed. And right now, there may well be a justification for an additional two justices. There are two vacancies. And I'll have to look at that at the time, but my position had been that they didn't need that 12th judge.

HH: And that's what the Attorney General said. He understood it, but that he wanted to make that argument. So you'd be open to the argument?

JK: Oh sure, yeah.

HH: Okay. Now let's talk about two of the most controversial nominees, Haynes and Boyle. The Department of Defense general counsel is being held up, according to some, by your colleague, Lindsey Graham. Boyle's being held up, according to some, by concerns over non-recusal. What's your assessment of both of those nominees?

JK: Boy, I wish I had come better prepared to answer those questions, specifically. There are...first of all, there's a lot of politics in this. The Democrats would like to hold all of them, all of them that they can. And I never quite know what kind of deals might have been made between the chairman and the ranking member to try to get other nominees out. But both of these have been languishing, and others have skipped over them, which leads me to believe that there have been some accommodations, shall we say, to at least move them to the back of the line. And even though at least one of them is ready for floor action, I doubt that you'll see that quickly.

HH: Now the Gang of 14 last year, we were on the air when it was broken, because I was back in D.C. I still remember that so clearly. It was supposed to have cleared the decks and gotten everyone an up or down vote. It did not work out that way.

JK: Well, there was a clearing of the decks of the ones that they cleared. And then, there were a couple of that were clearly not cleared, although appropriately, names weren't mentioned, but everybody knew who they were. And then, there were a few that were in limbo, and those are the ones that are hard to discuss right now, because I think they agreed to work on them later, and make decisions later. And I'm just not clear how the Gang of 14 has come down on that.

HH: Is Senator Graham aware...have you talked to him about the growing conservative anger over the perception that he is blocking Haynes?

JK: I suspect he's aware of it, yes, but I haven't talked to him specifically about it.

HH: The last...let's go back and look at Brett Kavanaugh. You guys took...you took the lead on that. A lot of people did. You got him through...

JK: Well, and you harrassed us enough to get it done, by golly, and thank you.

HH: But that's what happens, I think. It seems to me that whenever you folks decide to get it done, it happens.

JK: Yeah.

HH: Senator Specter was also talking with the American Spectator, of all people, two weeks ago about standing up and delivering votes like that. Who is it...who doesn't like the debate? I don't mind if these guys lose, actually. I won't be happy, but if they get votes...Who doesn't want votes?

JK: Well, here's the touchy thing. You want to fight the ultimate battle with the very best circumstances possible. You want to set the battlefield so you can win. And the concern is, the Gang of 14, 7 Dems, 7 Repubs, who agreed that they would not support their leaderships...the Republicans wouldn't support the Constitutional Option to go to a 51 vote, the Dems wouldn't support the filibuster that their leadership was threatening. What they have created is a situation in which were they to get together on a nominee, you don't want a fight on that nominee, if you're the Republican leadership. And so the question is, with a John Roberts or a Sam Alito, dare them to create the fight. We could have fought them, we could have beat them, we could have had the Constitutional Option in place, 51 votes. All the Republicans would have supported it. But with a couple of these other judges, and I don't want to mention names...

HH: Sure.

JK: ...but with some other judges, the question is, can we win that fight? Do we have the ability to make that the cause celeb, and win? And in certain cases, there's some doubt about it. And so that's why it's a little more nuanced than necessarily you'd like it to be.

HH: Your colleauge, and a friend of this program, we've had him on a lot, Mike DeWine, from my home state, was a member of the Gang of 14. I think he regrets that to this day, because he got hammered on it so much. But he is also in a very delicate position right now, having repaired relations, largely, with the conservatives in the Buckeye State. Is part of this tied in with the Gang of 14 goes away? Does that deal live beyond this session of the Congress, Senator Kyl?

JK: I think that the Gang of 14 will tell you that it was only intended to be for this Congress, but that they saw value in continuing some kind of relationship like that. But clearly, you don't know who's going to be back, and who might want to continue to participate in it, and so on. But I think they saw a value in continuing...in fact, they even talked about using the same group to branch out into other areas, although I don't think they've really done that.

HH: The Constitutional Option would be dead if we lost how many Senators from the Republican side?

JK: Well, it depends. You need 51 to make it work, and there was a little bit of doubt about a couple of the Senators on the Republican side before. That's why you've got to make sure that when you have the fight, you have it over the right issue, or the right...in this case, the right judge.

HH: Heard anything about retirements from SCOTUS?

JK: No.

HH: No rumors? Nothing? Zero?

JK: Nope.

HH: Okay. He's being cagey here.

---

HH: Jonkyl.com, and there's a convenient link over at Hughhewitt.com. Senator Kyl, win the war, confirm the judges, cut the taxes, control the spending, secure the border. Those are my fifteen words.

JK: You got it.

HH: But it's going to be a tight-run thing between now and November.

JK: It is. What people have to realize is that even though you may be unhappy about wasteful Washington spending, about anxiety about the war, about the failure to totally solve the immigration problem, and other issues, this election coming up is a choice. It's a choice between two sides and two candidates. And always consider the other side when you're deciding what you're going to do, and in fact, whether you're going to do it. It is just appalling to me that some Republicans say ah, we're mad at folks, we're going to sit it out this year. Think about the alternative. Think about who'd be chairing some of these committees if the other guys win.

HH: And if we get another Supreme Court nomination, what will happen.

JK: Oh, it could be...well, look at this latest decision on wetlands. It could make...obviously, it could be huge.

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Posted at 2:12pm on Jun. 26, 2006 What if PC is ignored?

By Quin

All along, I've been convinced that IF there is any opening for SCOTUS, the Bush administration would feel it absolutely must go woman or Hispanic, figuring it just couldn't do three straight non-Hispanic males. But what if I'm not giving the Bushies enough credit for going with principle over identity politics? What if it considers all candidates equally regardless of ethnicity or gender? Which non-Hispanic white males might edge past Sykes, Batchelder, Williams, Estrada, Cantero, Boggs, Young, and Larry Thompson?

McConnell? I just read his Harvard Law Review book review of Justice Breyer's book, and it is really, really good. I would quibble about a few small points, but overall it makes me more favorably disposed toward him -- albeit still with some nervousness. If I have time in the next few days, I'll post more about my review of his Review review of Breyer's book!

Pryor? Be still my heart. The fight most worth fighting. But not very likely.

Easterbrook? A superb choice. But somehow he doesn't seem like the type who Bush would warm to personally, and we all know that Bush puts a lot of stock in personal impressions, one-on-one.

Chris Cox? Again, be still my heart. Another perfect choice -- and perhaps more confirmable than Pryor.

Viet Dinh? I consider him a personal fr... well, not friend, because I see him so rarely, but definitely a long-time friendly acquaintance. Brilliant (at law and at bridge), and he deserves high marks for his work at OLP. I would need to get over being ticked at him, though, for his advocacy of that absurd Hawaii separatist bill. And the question is also, is he more jurisprudentially conservative, or not, than was Justice O'Connor, for whom he clerked? Me, I like him personally enough that I would be willing to take my chances.

Paul Clement? Awesome. Even on the Rapanos/Carabell wetlands cases, where he represented his client, the government, on the wrong side of the case, I was most impressed with his writing and his logic.

John Cornyn? Would be a good choice. Then Gov. Perry could appoint Rep. Bonilla to the Senate and the Bushies and the GOP would get credit from Hispanics that would partially offset the frustration with the failure to appoint a Hispanic. But really, would another Texan fly politically?

Spencer Abraham? A terrific choice, and would put pressure on Debbie Stabenow. But the Dems would be outraged and it would be a major stinkfest, because of Spence's role in blocking Levin's cousin, or whatever.

Ted Olson? Another "wow," and he seems to be in terrific shape for being, what, 63?

Luttig? What a fake-out job that would be! But as Dana Carvey would say, "not gonna happen."

Quin Hillyer? I think it's high time the Constitution was interpreted by another scholarly Madisonian non-lawyer, just like Madison himself was! :)

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Posted at 1:19pm on Jun. 26, 2006 Hot Air and Other Developments

By AndrewHyman

There's lots of SCOTUS news today unrelated to vacancies, nominations and confirmations. Bench Memos has more. Maybe the biggest development is that the Court has agreed to hear the case of Massachusetts v. EPA, which will decide whether the EPA may decline to regulate greenhouse gasses as pollutants.

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Posted at 3:17am on Jun. 26, 2006 Constitutional Conventions

By AndrewHyman

All of you former elementary school students know that the Constitutional Convention of 1787 produced a system to replace the Articles of Confederation. There hasn't been a constitutional convention since 1787, although Robert Novak is reporting that another one may now be in the works.

The Articles of Confederation flatly prohibited anything like the "cloture rule" that has recently been directed (for the first time) at killing judicial nominations. Here's what Article IX of the Articles of Confederation said:

The United States in Congress assembled shall never â₦ appoint a commander in chief of the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of the majority of the United States in Congress assembled.

Any vote about ending debate had to be determined by majority rule, according to the Articles of Confederation. Unfortunately, this requirement was not expressly included by the Philadelphia Convention in 1787. Fast forward to 1997, when a similar issue was considered by the D.C. Circuit, in the case of Skaggs v. Carle --- Judge Edwards argued in dissent that the framers thought majority rule was an implied requirement for the House of Representatives (even though not an express requirement). In my opinion, the implied requirement seems even stronger for the Senate, due to the Vice President's constitutional role as tie-breaker.

If there's another constitutional convention anytime soon, perhaps the error of 1787 will be corrected, and majority rule will be made explicit in the Constitution, at least for confirmation of judges. Incidentally, I think another error at the 1787 Constitutional Convention was to not explicitly require that judicial review only be exercised when there is an "irreconcilable variance" between the Constitution and a purported law. That standard of "irreconcilable variance" was advertised by Alexander Hamilton in Federalist 78, in order to convince people to accept judicial review in the first place.

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Posted at 3:34am on Jun. 24, 2006 Weekend Open Thread

By AndrewHyman

Have at it.

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Posted at 8:28pm on Jun. 23, 2006 Kelo Anniversary

By AndrewHyman

A year ago, the Supreme Court decided the case of Kelo v. City of New London. To mark the anniversary, President Bush issued this excellent executive order to protect private property rights. Also, during the past year, 25 states have reportedly passed laws to protect private property rights in response to the Kelo decision, and three more are awaiting a governor's signature.

While I support today's executive order as well as the legislation enacted by all those states, still it seems to me that Kelo correctly applied the Takings Clause, which says that private property shall not "be taken for public use without just compensation." There is a healthy number of conservatives and originalists who agree that the holding in Kelo was proper, Jonathan Adler for example:

[W]hile I would like to read ââ‚Å“public useâ₝ as a strict limitation on government use of eminent domain for a small set of purposes, there is little warrant for this interpretation in either the ratification history or the courtââ‚â„¢s jurisprudence of the past 100 years or so.

More from Adler here. Of course, I have an open mind on the subject, but there is considerable evidence that Adler (and SCOTUS) were correct. Therefore, I really hope Kelo will not be a rallying cry in the judicial confirmation battles.

When James Madison wrote the Takings Clause in the Fifth Amendment, similar language had already been known for quite a while. For example, the Massachusetts Body of Liberties said:

No man's Cattel or goods of what kinde soever shall be pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court [i.e. the legislature], nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.

"Cattel" meant beasts of any kind. It's very improbable that cattel would have been taken or borrowed in order to be made available for direct use by (or service to) every member of the public. Indirect use, and indirect service, were apparently contemplated.

Likewise, Madison explained one particularly relevant application of the Constitution's Takings Clause: in a sympathetic letter to an antislavery advocate, Madison proposed that the federal government purchase all slaves in order to free them. He observed, ââ‚Å“Whatever may be the intrinsic character of that property [slavery], it is one known to the constitution and, as such, could not be constitutionally taken away without compensation.â₝ It made no difference to Madison that freed slaves would not subsequently be owned by the federal government or owned by the public. This understanding was put into practice in the mid-nineteenth century when the federal government took slaves from the slaveowners in Washington D.C. in return for compensation. Some might say that slavery should not be used to argue about how the Constitution ought to be interpreted nowadays, but I respectfully disagree; slavery was a horrible institution but it nevertheless teaches important lessons about how the framers understood related provisions of the Constitution. Those who argue that the government may only take property if the property will be put to use by the general public should bear in mind that this certainly was not the view of people like Abraham Lincoln:

The Constitution itself impliedly admits that a person may be deprived of property by ââ‚Å“due process of law,â₝ and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he shall not bring his slave into the Territory upon pain of forfeiture, and he still will bring him he will be deprived of his property in such slave by ââ‚Å“due process of law.â₝

This was part of the legal background in 1868 when the 14th Amendment applied the Takings Clause against the state governments. I suspect that the primary clause of the Constitution that forbids egregious takings of private property for private use is to be found not in the Takings Clause, but in the Thirteenth Amendment, which bars involuntary servitude.

UPDATE: Here's a detailed law review article by Nathan Sales about the original purposes of the Takings Clause. Sales points out that, prior to 1789, several states "further limited the government's power to expropriate private property by requiring that a taking be justified by 'public necessity' or 'the public exigencies.'" Of course, the U.S. Constitution does not contain that kind of limitation on congressional power (at least with respect to congressional power to govern the District of Columbia).

UPDATE #2: Susette Kelo has an interesting op/ed in the June 24 Washington Times.

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Posted at 2:02pm on Jun. 23, 2006 Send in the Nominees

By AndrewHyman

Six Senators wrote to Pres. Bush on June 16 asking for more circuit court nominees, but advising the President to nominate quality nominees instead of worrying about who ââ‚Å“might face less opposition to their confirmation.â₝ Don't you approve? I do.

In other news, Judge Boyle has helped to protect North Carolina's original copy of the Bill of Rights. When will this nominee ever get a vote in the full Senate?

Hat Tips: Tim Chapman --- writing at his new blog --- calls the Senators' letter the ââ‚Å“tell-harriet-miers-to-stop-slowing-up-the-process letter.â₝ (Or maybe something else is brewing.) Howard Bashman led us to the article about Boyle and the Bill of Rights.

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Posted at 4:51am on Jun. 23, 2006 John Paul Stevens is Just a Kid

By AndrewHyman

See here.

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Posted at 1:25am on Jun. 23, 2006 How Do You Like Our Coverage?

By AndrewHyman

We bloggers would like to know what you think. Are we going too easy on some public officials instead of carping about them more? Are we too hard on other public officials instead of dishing out TLC? Do you think we're emphasizing some stuff to the detriment of other stuff? Do you mind that we take note of district court confirmations, even as we emphasize the much greater importance of the appeals courts? Let's hear what you have to say, in the comments. Thanks.

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Posted at 11:02pm on Jun. 22, 2006 Frank Whitney Confirmed Tonight

By Dave II

Just before the Senate adjourned, Assistant Majority Leader Mitch McConnell asked for unanimous consent that a whole bunch of nominations be confirmed en bloc. Among all those nominees? Former David Sentelle clerk and U.S. Attorney Frank Whitney, nominee to the U.S. District Court for the Western District of North Carolina.

Frank Whitney, 47, was nominated by Bush on February 14, 2006 and reported out of Committee on June 15, 2006. He takes over for Judge Brent McKnight, also a Bush II appointee, who unfortunately died in 2004. There are still four other vacancies on the North Carolina District Courts, one of the highest of any state in the nation.

Whitney is the fifth District Judge Bush has appointed to North Carolina. Clinton appointed two.

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Posted at 7:54pm on Jun. 22, 2006 Eighth Circuit Nominee Gets ABA Rating

By Dave II

Some of our more passionate members have had a few sleepless nights over U.S. Magistrate Judge Bobby Shepherd's nomination to the Eighth Circuit. I'm sure it will give all of them great comfort to know that today the ABA announced it believes Shepherd is unanimously Well Qualified to be a judge on the Eighth Circuit Court of Appeals.

By the way, Terrence Boyle? Still Unanimously Well-Qualified.

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Posted at 7:43pm on Jun. 22, 2006 Unexpected Treat: New District Judge Confirmed

By Dave II

After passing the 2007 Defense Authorization Act (which includes a 2.2% raise for military types like me!), the Senate decided to just go ahead and confirm one of the judges that have been waiting patiently. Today's lucky winner was Andrew Guilford for the Central District of California.

Guilford, 56, (nominated 01/25/06) was confirmed 93-0. He will replace Judge Dickran Tevrizian, a Reagan appointee, who has taken senior status. Guilford graduated from UCLA Law and has been in private practice ever since. Guilford was rated unanimously Well Qualified by the ABA. Guilford is the 36th judge Bush has appointed to the District Court for the Ninth Circuit (Clinton appointed 46).

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Posted at 4:56pm on Jun. 22, 2006 Short Circuiting the Ninth

By AndrewHyman

Today, there's an article in the Daily Journal titled, "Breaking Up the 9th Circuit An Issue Again in the Senate" by Lawrence Hurley. Excerpts:

A Republican proposal to split the 9th U.S. Circuit Court of Appeals into two is back from the deadâ₦.The legislation would create five new judgeships for the 9th Circuitâ₦.Arthur Hellman, a law professor at the University of Pittsburgh who is a 9th Circuit expert, said he was surprised by Specter's unheralded decision to back the bill. "I thought he had been on the fence," he said. The first sign that Specter had changed tack came last week when he addressed the issue at an after-dinner speech in Washington, subsequently reported on a conservative blog, www.confirmthem.com. "It's an odd way of announcing a position on such an important piece of legislation," Hellman said.

Odd? Perhaps. The announcement was here at confirmthem. Another announcement --- of today's Senate Judiciary Committee meeting on the Ninth Circuit split --- is here (see last item on list). There was also an SJC hearing on this same subject last fall, at which one of the witnesses in favor of a split was Ninth Circuit Judge Diarmuid Oââ‚â„¢Scannlain. Here's an Updated Statistical Appendix to Judge O'Scannlainââ‚â„¢s Senate Judiciary Committee testimony last fall (accurate as of June 18, 2006).

Not only would a Ninth Circuit split lead to five permanent new circuit judgeships in the area currently covered by that circuit, but it would also unblock the creation of several new permanent circuit judgeships nationwide.

Here's some more background info about the proposed split: a pro-split article by Judge O'Scannlain, and an anti-split statement from a number of other Ninth Circuit judges.

Hat Tip: Howard Bashman for the Daily Journal article.

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Posted at 1:07am on Jun. 22, 2006 Boyle News

By AndrewHyman

Alexander Bolton reports in The Hill:

[T]he Gang of 14 ââ‚” seven centrist Democrats and seven centrist Republicans ââ‚” probably holds the swing votes that will determine whether a filibuster is allowed to block a vote on Boyle.

Bolton reports that Senators Snowe and Collins are "concerned" about the nomination. Bolton also reports that Senator Graham is still urging a second hearing, even though Senator Specter has already voiced support for Boyle and voiced opposition to a second hearing. Meanwhile, the ABA continues to say that Boyle is "well-qualified."

The only extraordinary circumstance here is that a committee-approved judicial nominee may be denied an up-or-down vote on the floor of the Senate. There's no precedent for such an extraordinary thing in the 18th, 19th, or 20th centuries.

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Posted at 7:30pm on Jun. 21, 2006 Oops, We Overlooked Something About Randy Smith

By AndrewHyman

Yes, it's hard to believe that our team of volunteer confirmthem bloggers and commenters overlooked something related to judicial nominations. But, surfing the net today, I noticed an article from April 5, 2006 about Ninth Circuit nominee N. Randy Smith.

The article is unusual in that it's authored by the judge who Smith would succeed: Stephen Trott (of the great folk band The Highwaymen). Judge Trott's article is here, and it's very informative.

It seems like we're not the only ones who missed Judge Trott's article. If you look below the fold, you'll see Senator Leahy's June 19 remarks about the Smith nomination, which indicate that Leahy also never read Trott's very persuasive and informative article of April 5.

SENATOR LEAHY. In nominating Judge Smith of Idaho for a lifetime appointment to the Ninth Circuit, President Bush broke with the longstanding precedent of replacing each circuit court vacancy with a nominee from the same State, taking away a California seat on the Ninth Circuit. Senators FEINSTEIN and BOXER expressed their strong opposition to this nomination in a January 30, 2006, letter to Chairman SPECTER.

I have urged President Bush to resolve this impasse by doing the right thing and nominating Judge Smith not for a California seat but for the vacancy created by the retirement of Judge Thomas G. Nelson from Idaho. Regrettably, he has not done so.

In their letter to Chairman SPECTER, Senators FEINSTEIN and BOXER expressed their concerns that the confirmation of Judge Smith to the Ninth Circuit would transfer a judgeship from California to Idaho, violating historical precedent. Judge Smith has been nominated to fill the seat last occupied by Judge Stephen Trott, an appointee of President Ronald Reagan from California, whose retirement in 2004 created this vacancy. Judge Trott was from California, where he had practiced for much of his career prior to becoming a judge. In fact, he was nominated to fill the seat of another Californian, Judge Joseph Sneed. At the time of his nomination, while he worked at the Department of Justice in Washington, the Senators from California were consulted and it was understood to be a California seat.

While an agreement can sometimes be worked out among Senators and the White House to proceed with someone from another State within the circuit first, so long as the subsequent nomination comes from the first State, I do not know of any precedent for shifting a circuit seat based on a judge's personal decision to change his or her personal residence. If that were to become the rule, I expect that Vermont might well benefit from judges initially named as from New York or Connecticut recognizing the beauty and lifestyle that Vermont has to offer and moving to the Green Mountain State. But that is not the rule and has never been the rule. Instead, we have worked out circuit court allocations among the States based on tradition and history.

Of course this White House has attempted to steal a seat before, when it attempted to replace a Maryland Fourth Circuit judge with someone from Virginia. That attempt was unsuccessful. That was the ill-fated nomination of Claude Allen, a White House insider who has since resigned his high-ranking position and been arrested on charges of retail theft.

I am sensitive that every State within a circuit should have at least one judge come from that State. I supported legislation to ensure that and to afford Hawaii a seat on the Ninth Circuit. I will defend Idaho's right to a seat on the Ninth Circuit, just as I defend Vermont's right to a seat on the Second Circuit. However, Judge Smith was not nominated to Idaho's seat. If the President would take my suggestion and renominate him to that Idaho vacancy, that would resolve this problem.

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Posted at 4:26pm on Jun. 21, 2006 Hurray for the Judiciary Committee, But What About the Full Senate?

By AndrewHyman

Although the Senate Judiciary Committee's processing of judicial nominees continues to gather speed, what about the nominees who are already approved by the Committee? When is Senator Specter going to recommend that they be voted on by the full Senate? Terrence Boyle has been waiting for a floor vote over a year, but still has not received even a cloture vote. Randy Smith hasn't gotten any kind of floor vote either, and it's been years since Williams Myers had one. What good does it do to get out of Committee if a floor vote doesn't follow?

This is a matter of principle, and no one should be placated as long as committee-approved nominees continue to languish on the calendar. The Majority Leader's office should not be gloating about nominees already confirmed, as long as this travesty continues with nominees like Boyle and Smith. A reliable source tells confirmthem that the Senate leadership has no intention of having any floor votes on these long-stalled nominees prior to July 4. Why the heck not?

UPDATE: As we previously mentioned, ââ‚Å“Frist ducked a question about â₦ Terrence Boyle â₦ saying he was still waiting for advice from Judiciary Chairman Arlen Specter (R.-Pa.) on how to proceed.â₝ What's Specter's advice?

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Posted at 2:56pm on Jun. 21, 2006 Specter Gets Back To Work

By Dave II

Suddenly, Specter is moving Circuit nominees like hotcakes. Last week, it was Tenth Circuit nominee Jerome Holmes. Today, fellow Tenth Circuit nominee Neil Gorsuch gets a hearing. Next week, the Senate Judiciary Committee will hold a hearing for Federal Circuit nominee Kimberly Moore and everybody's favorite Eighth Circuit nominee Bobby Shepherd. That leaves only Fifth Circuit nominee Michael Brunson Wallace without a hearing, but the word around town is that his is coming soon (along with another hearing for Fourth Circuit nominee Jim Haynes).

The only disappointment today is that Holmes, who had a hearing last week, is not listed on the tentative agenda for tomorrow's Executive Business Meeting. With his opposition to affirmative action, I think it likely that even when he does get placed on the agenda the Dems will do as they routinely do and delay his vote for a week. But confirmation is coming. Oh yes, it is coming.

UPDATE BY ANDREW: Here's a report about the Gorsuch hearing.

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Posted at 9:06am on Jun. 21, 2006 Specter Lunching with S.Ct. Justices

By Marshall Manson

The Hill reports this morning that Senate Judiciary Committee Chairman Arlen Specter is systematically hosting each of Justices of the Supreme Court for lunch. The objective, according to the story, is to discuss a variety of issues, legal and administrative. The topics include, apparently, the current confirmation process. It also sounds as though Specter is lobbying the Justices hard to allow cameras in their Court. Here's hoping the lunches result in some lessons learned about how to clean up the confirmation process and a clear "no" on the subject of cameras.

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Posted at 12:43am on Jun. 21, 2006 Gorsuch "Well Qualified"

By Dave II

What do you know, just in time for Neil Gorsuch's Senate Judiciary Committee hearing this afternoon, the ABA has released a few more ratings. Gorsuch is unanimously well-qualified (how could it be otherwise? look at the man's resume!). California District Court nominee Philip Gutierrez is also unanimously WQ.

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Posted at 9:48pm on Jun. 20, 2006 Progress on Judges This Summer?

By Marshall Manson

Human Events Online Editor Rob Bluey is rapidly making himself indispensable in the coverage of judicial confirmation battles. He's an aggressive reporter with the best sources of perhaps anyone on the Hill these for this issue. And today, he once again has the scoop.

The Senate Judiciary Committee is quietly maneuvering to act on two of President Bush's appellate court nominees this summer, while a third nominee awaiting action on the Senate floor is slowly moving closer to a vote, Republican aides told HUMAN EVENTS today.

Lots of details in Rob's report about timing and specifics.

No question that any movement forward is good news. And there's also no question that the recent renewed push by conservative activists to ensure that the Senate (and especially the judiciary committee) weren't allowed to just punt for the year has made a huge difference. Now we all just have to keep up the pressure and make sure that Rob's predictive reporting turns into encouraging reality.

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Posted at 3:20pm on Jun. 20, 2006 Bush and Bluey on Judicial Nominations

By AndrewHyman

I want to thank the United States Senate for confirming two fantastic Supreme Court Justices in John Roberts and Sam Alito. (Applause.) And our pledge to you is that I will continue to nominate good judges, good honorable men and women, who will interpret the law and not legislate from the bench.

---Pres. Bush, June 19, 2006. Also on June 19, Robert Bluey of Human Events noted: ââ‚Å“if conservative activists have any say about it, Boyle's confirmation vote will happen sooner rather than later.â₝

UPDATE: The Wall Street Journal had some speculation today about a possible Stevens retirement.

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Posted at 1:04pm on Jun. 20, 2006 Boyle and Haynes Letters

By AndrewHyman

Today's Wall Street Journal includes a letter to the editor about Judge Boyle, and here are excerpts:

When Other Methods Fail, Attack Nominee's Character

Your June 7 editorial regarding Judge Terrence Boyle and Jim Haynes II ("A Different Judicial Battle") goes too easy on the Senate leadership for their treatment of Judge Boyle. After five years of delay, his nomination to the Fourth Circuit was finally heading for a floor vote, with nearly all agreeing that the judge, having served with distinction on the federal bench for 22 years and received the ABA's highest rating, involved no "extraordinary circumstances" justifying a filibuster.

A flurry of press activity alleging "ethical" issues then erupted, all stemming from a single misleading Web site article, republished on related Web sites, and repeated and embellished in personal attacks from leading Democratic senators who asserted that Judge Boyle had "violated every judicial ethic you can think of" and that his elevation would be "outrageous."

All this is simply not true, as the alleged "ethics" issues have been shown to be completely false or truly trivial (one allegation is based on stock worth a total of $2.50). The real truth here is that, despite Judge Boyle's thousands of cases and two decades of experience, detractors can simply find nothing of substance or materiality to complain about. These attacks are part of a broader attempt to derail worthy nominees using character assaults when other avenues have failed.

....

Emily Johnson Barton

Lars Liebeler

Chris Oprison

Lora Taylor

Andrew T. Tripp

Washington

Meantime, the American Conservative Union is urging that Judge Boyle be rescued from "congressional purgatory." Concerned Women for America (CWA) is pointing out that ââ‚Å“The Chief Judge of the Fourth Circuit has selected Judge Boyle to join the circuit temporarily and help decide cases. He has authored 17 opinions, none of which has been reversed by the Supreme Court."

Regarding the Haynes nomination to the same circuit (i.e. the Fourth), confirmthem previously posted Senator Graham's letter explaining his position. Today, a large assortment of conservative leaders responded to Senator Graham:

National Coalition to End Judicial Filibusters

Senator Lindsey Graham

290 Russell Senate Office Building

Washington, DC 20510

June 2006

Re: The Nomination of Jim Haynes

Dear Senator Graham:

As representatives of the National Coalition, we would like to thank you for your response of June 8th to our letter dated June 6th. We would like to return the courtesy by respectfully responding to your concerns.

As you know, we are concerned about your lack of support for the nomination of William "Jim" Haynes to the U.S. Court of Appeals for the Fourth Circuit, which is effectively blocking him in committee nearly three years after he was nominated.

Your letter says that you look forward to hearing Mr. Haynes's answers to the questions that you and other senators will ask of him during a second Judiciary Committee hearing. But your opposition appears to be preventing such a hearing.

We note that when Mr. Haynes had his first hearing on November 19, 2003 you were absent. We are left to wonder whether in the two years that Mr. Haynes has been delayed, you have sent him any written questions that would have allowed him the courtesy of addressing your concerns.

You state that you are proud of the role you played in helping to confirm William Pryor, Priscilla Owen, and Janice Rogers Brown. As an integral part of that effort, you fought for the principle that judicial nominees with majority support are entitled to an up or down vote on the Senate floor. You even made the issue of obstruction of nominees part of your 2002 election campaign.

In fact, on November 11, 2003, on the eve of the grand 40 hour debate on judicial nominations, you said, "[T]he President's nominees deserve a straight up-or-down vote. If they get this, they will be confirmed." Your press release of November 11, 2003 is still on your site.

You were right. Unfortunately, your opposition to Mr. Haynes now threatens to damage this important principle. As Charleston's Post & Courier recently reminded you, "Nominees for judicial appointments deserve to be voted on" and Jim Haynes's "nomination is long overdue for debate."

We understand that you are troubled that some military leaders have expressed opposition to the Haynes nomination. However, their opposition is based largely on a misunderstanding of Mr. Haynes's role as general counsel of the Defense Department.

For example, they ignore the fact that the Department of Justice holds the final word on the interpretation of federal law within the executive branch, including decisions on the status of al Qaeda detainees under the Geneva Convention, the constitutionality of military commissions, and the initiation of a state of war on 9/11. Haynes was bound by the Justice Departmentââ‚â„¢s conclusions.

Nonetheless, the criticism you cite centers on holding Haynes responsible for, as Retired Rear Admiral Hutson put it, "the abuse of detainees by military personnel around the world." In fact, detainee abuses ââ‚“ such as those at Abu Ghraib ââ‚“ were in violation of the very policies Jim Haynes is now being blamed with crafting. Multiple investigatory commissions, most notably the Schlesinger-Brown Commission and Admiral Churchââ‚â„¢s investigation, have found no link between policies set in Washington, D.C. and the abuses at Abu Ghraib.

With regard to Guantanamo Bay, Haynes played a vital role in ensuring that interrogations there were conducted only after full input by the Defense Departmentââ‚â„¢s military and civilian attorneys. Moreover, the Wall Street Journal reports that Defense Secretary Rumsfeld rescinded his December 2002 decision to allow "coercive" interrogation techniques against al Qaeda detainees at Guantanamo "within six weeks after Pentagon lawyers took their concerns to Mr. Haynes, who then took them to Mr. Rumsfeld. . . . [I]ts reversal was due in no small part to Mr. Haynes."

Regarding the more subjective criticism of Jim Haynes, some of the military leaders you cite have no first-hand knowledge of the allegations they make. For example, John Hutson was the Navy JAG during the Clinton administration and never served with Mr. Haynes. He criticizes Haynes for being ââ‚Å“deaf to the advice of senior military and civilian lawyers,â₝ but he was not around to witness their interaction. Likewise, you cite Retired Brigadier General Edward Rodriguez of the United States Air Force Reserves. But, General Rodriguez left active duty in 1974, stayed with the reserves only until 1999, and never worked with Mr. Haynes.

You also suggest that, when military lawyers participated in the interrogation working group in 2003, their views about proposed interrogation methods were completely ignored. Yet the record is clear that the final policy document achieved general consensus. The military lawyers were heard out, and their concerns were addressed. Maj. Gen. Thomas J. Romig, the Army's top lawyer, testified before a subcommittee chaired by you, that the input "was accepted in some cases, maybe not in all cases. It did modify the proposed list of policies and procedures."

We share your great respect for members of the U.S. military and your desire to take their view into account. Because the War on Terror has been controversial, producing many disagreements both within and without the military, it is particularly important to take opinions on all sides into account.

Since your letter cites the criticism of three retired military officers, but fails to credit the comments of retired officers who support Mr. Haynes's nomination, we would like to share some of those comments with you in case you missed them.

In a letter to Sen. Arlen Specter, William K. Suter, former Assistant Judge Advocate General of the Army, said:

"I met Mr. Haynes when he was a military attorney in the Army General Counsel's Office. After he was appointed General Counsel of the Army in March 1990, I worked closely with him on a daily basis."

"Mr. Haynes is a superb lawyer in every respect. He performed his duties as the Army General Counsel with great distinction."

"He was always available to discuss pending legal issues. . . . He respected Judge Advocates and their opinions. He is also a man of great character and integrity."

"I am confident that he will be an outstanding appellate judge."

In a letter to Sens. Arlen Specter and Patrick Leahy, Michael Marchand said:

"On July 1, 2005, I retired as a Major General from the United States Army after 31 years service as a Judge Advocate. . . . In my most recent assignment as The Assistant Judge Advocate General of the Army . . . I was privileged to work with William J. Haynes in his capacity as General Counsel of the Department of Defense."

"In light of much inaccurate reporting on Mr. Haynes' performance as general counsel during these last four years that our Country has been at war, I feel compelled to speak on the record . . . In my experience, Mr. Haynes has been more inclusive of the Judge Advocates General and the senior service lawyers of the armed services than any General Counsel of the Department of Defense. He has consistently and repeatedly reached out to the senior lawyers of the Department of Defense. . . . He has been respectful of our views, even on those occasions when he may not have agreed with one or more of us. The Department and its legal community ââ‚“ and the Country ââ‚“ have been well served."

Woody Woodruff, former Chief of the Litigation Division in the Office of the Judge Advocate General, wrote in an e-mail:

"I worked with Jim Haynes on several very important issues while he was Army General Counsel. I found him to be bright, humble, hard-working, thoughtful, personable, and dedicated."

"The more I dealt with him the more impressed I became. . . . He was a great Army General Counsel."

"He was not one to play fast and loose with the law to craft a program to satisfy the political leadership."

"Jim Haynes served our nation remarkably well during difficult times and deserves to have his nomination fairly considered by the entire Senate."

We would also like to share with you the comments of Bernard Meltzer, professor emeritus at the University of Chicago Law School and a former assistant trial counsel to Supreme Court Justice Robert Jackson at the Nuremberg Tribunal. Professor Meltzer worked with Mr. Haynes in writing the regulations that govern the trial of detainees before military tribunals. In a letter to Sens. Specter and Leahy, Meltzer wrote:

"I was impressed by [Mr. Haynes's] informed and sensitive concern for the rights and legitimate interests of those who might be tried before a military commission. He contributed to a set of regulations that, in my view, represent an appropriate balance between the protection of individual defendants and the protection of the security of our country."

"I strongly recommend that the Committee and the entire Senate act to confirm his appointment."

Given the high regard in which Jim Haynes is held by those who have worked closely with him, it is easy to see why the American Bar Association twice gave him its highest rating, the Post & Courier called his qualifications "outstanding," and your colleague Sen. Hatch deemed Haynes to be "one of the better nominees that I've seen."

In light of Jim Haynes's outstanding qualifications, the only explanation for your lack of support is your stated disagreement with the Bush Administration policies that Haynes implemented as the Defense Department's general counsel. We respect your disagreement, but feel strongly that Haynes's nomination should not be used a vehicle for expressing it.

Policy disputes with the Administration should not carry over to the Senate's consideration of Mr. Haynes or any other judicial nominee.

Please consider that Mr. Haynes, if confirmed, will not be making policy. One reason he was nominated is that he understands and fully respects the vital difference between the role of a judge ââ‚“ interpreting the law without regard to personal policy preferences ââ‚“ and that of an executive branch official.

We are particularly concerned that your June 8 letter and the critics it quotes conflate policy disputes with improper behavior, frankly, in the way that Democrats do. For example, you ask whether civilian leaders like Haynes should be promoted "while military personnel are being punished?â₝

If you believe that Mr. Haynes has violated Department of Defense rules and deserves to be punished, that is certainly a legitimate basis for opposing his confirmation. Otherwise, please be mindful of the important distinction between policy decisions ââ‚“ even mistaken ones ââ‚“ and unlawful or unethical behavior.

If you, nonetheless, insist on evaluating Mr. Haynes's worthiness to be a judge based on the Administration policies he was involved with, we urge you to do so by asking the appropriate questions at his hearing and voting against him on the Senate floor.

By, instead, silently blocking his chance for a hearing, you are denying the American people an open and honest debate and imperiling the principle that qualified nominees deserve an up or down vote by the full Senate.

Moreover, by blurring the distinction between Democrats' repeated use of obstructionist tactics and Republicans' principled treatment of judicial nominees, you are harming the GOP's chances in November.

Sincerely,

Manuel Miranda, Third Branch Conference, NCTEJF chairman

Sean Rushton, Committee for Justice

Dean Mathew D. Staver, Liberty Counsel and Liberty University School of Law

Kelly Shackelford, Liberty Legal Institute

Tom Fitton, Judicial Watch

Phillip L. Jauregui, Judicial Action Group

Paul Weyrich, Coalitions for America

Dr. Carl Herbster, AdvanceUSA

Donald E. Wildmon. American Family Association

James L. Martin, President, 60 Plus Association

Andrea Lafferty, Traditional Values Coalition

Rev. Rick Scarborough, Vision America Action

Rabbi Aryeh Spero, Caucus For America

Kay Daly, Coalition for a Fair Judiciary

Joseph Cella, FIDELIS

Dr. William Greene, RightMarch.com

Chuck Muth, Citizen Outreach

Gary Palmer, Alabama Policy Institute

Dr. Don Racheter, Public Interest Institute (IA)

Kent Ostrander, The Family Foundation (KY)

Ed Holdgate, New Hampshire Right to Life PAC

Karen Testerman, Cornerstone Policy Research (NH)

Russell Johnson Ohio Restoration Project

Chris Dickson, "The Dickson/Chappell Report" (IN/OH)

Jeffrey Lord, author, The Borking Rebellion

cc: Senators Frist, McConnell, Santorum, Kyl, Hutchison, Dole, Specter,

Hatch, Grassley, DeWine, Sessions, Cornyn, Brownback, Coburn, Warner, Allen, and McCain.

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Posted at 1:20am on Jun. 20, 2006 Dispirited liberal justices

By aurel

From a report filed by Tony Mauro in the Legal Times, commenting on yesterday's announcement in the Rapanos case:

On a day that foreshadowed politically charged battles ahead, the Supreme Court on Monday divided sharply on the scope of the Clean Water Act while also agreeing to widen its review of the federal partial-birth abortion ban next fall.

...

Also on view was a dispirited liberal wing of the Court. Though Stevens, 86, read from his dissent vigorously, the justices who joined him ââ‚” Stephen Breyer, David Souter, and Ruth Bader Ginsburg ââ‚” appeared gloomy and fatigued.

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Posted at 6:59pm on Jun. 19, 2006 New Ninth Circuit Judge Confirmed!

By Dave II

Today, the Senate confirmed Sandra Segal Ikuta to be a judge on the Ninth Circuit Court of Appeals. The vote was 81-0. For an analysis of all this, see below the fold.

Ikuta, 52, replaces Judge James R. Browning, the last JFK appointee, who took senior status in 2000 after 39 years of active service. After six years, his vacancy is at last filled. Ikuta is the sixth judge Bush has appointed to the Ninth Circuit (Clinton had 14), and the eleventh Circuit judge appointed during his second Term (just the fourth in 2006). With Ikuta's confirmation, the partisan balance on the Ninth Circuit is now 10 Republicans and 16 Democrats, with 2 vacancies. Gerry Myers and Randy Smith await votes to fill the other vacancies.

Ikuta had a relatively swift road to confirmation. She was nominated on February 8th, 2006 and voted unanimously out of the Senate Judiciary Committee on May 26th. With today's confirmation, becoming a federal judge took her just over four months. This stands in stark contrast to fellow Ninth Circuit nominee Myers, who has been awaiting a confirmation vote for over three years now. This is probably owed to the fact that Ikuta's ideological record is non-existent and off the record she is thought to be a moderate. Ninth Circuit Judge Alex Kozinski (for whom she clerked) testified in her favor at the Committee hearings and pointed out that while he often viewed cases in black and white, Ikuta continuously counseled him towards shades of gray.

Whatever her judicial philosophy ultimately turns out to be, Ikuta is considered a well-qualified candidate to join the federal bench. She received an A.B. from Berkeley, an M.S. from Columbia, and a J.D. from UCLA. She clerked for Alex Kozinski on the Ninth Circuit and then Sandra Day O'Connor at the Supreme Court. She then spent fourteen years in private practice with O'Melveny and Myers before Governor Schwarzenegger made her General Counsel of the California Resources Agency in 2004.

An interesting bit of trivia is that Ikuta is now serving on the same Court with the judge for whom she once clerked, which is an extremely rare event. Judge Diane Sykes now serves on the Seventh Circuit with her former boss, Judge Terrence Evans, but he was not on the Seventh when she clerked for him. I think Ikuta and Kozinski are unique in the federal appellate courts right now.

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Posted at 5:00pm on Jun. 19, 2006 Monday Afternoon at Confirmthem

By AndrewHyman

We're having a technical problem with the comments, but we hope to get it ironed out soon. If you're having trouble commenting, that's why.

FYI, there will be a final vote on the Ninth Circuit nomination of Sandra Ikuta later today, probably around 5 PM.

Regarding Senator Specter's recent announcement that the Ninth Circuit may soon be split, here's an excellent resource that explains why that would be a good idea.

And, the Committee for Justice has just put out a Press Release....

Boyle: One Year and Still No Vote

CFJ Observes Record-Setting Anniversary of Nominee on the Senate Floor

-Calls on Leader Frist to Appoint Senate Shepherd to Defend Judge Boyle-

Washington, D.C. ââ‚“ the Committee for Justice (CFJ), which promotes constitutionalist judicial nominees, today observed the record-setting one-year anniversary of the Senate Judiciary Committeeââ‚â„¢s referral to the Senate floor of Judge Terrence Boyleââ‚â„¢s nomination. Boyle, a nominee to the Fourth Circuit, has not only not received a final confirmation vote, he has yet to receive even a cloture vote to test his support, despite the fact that he was originally nominated by President Bush over five years ago, on May 9, 2001.

ââ‚Å“The treatment of Judge Boyle is a growing shame to the United States Senate,â₝ CFJ Executive Director Sean Rushton said. ââ‚Å“Boyle deserves a fair vote and final decision on his nomination. Let his detractors come forward for open debate in full public view. Boyle is a respected judge who has dedicated the last two decades of his life to public service and deserves better.â₝

ââ‚Å“As a former staffer to Sen. Jesse Helms (R-NC), Judge Boyle has become a lightening-rod for partisan vendettas from liberal interest groups and Senate Democrats,â₝ Rushton continued. ââ‚Å“Like several other Bush nominees to the federal courts, opposition to Boyle is more about who he has worked for rather than whether he is qualified for the federal bench.â₝

One key problem for Boyle may be lack of a Senate ââ‚Å“shepherdâ₝ to guide his nomination and defend his nomination from attack.

ââ‚Å“Like Henry Saad and Carolyn Kuhl, Judge Boyle has languished not because of his criticsââ‚â„¢ flimsy arguments, but because of inattention,â₝ Rushton added. ââ‚Å“At the very least, Majority Leader Frist should appoint one of the two Republican Senators from North Carolina, Richard Burr or Elizabeth Dole, or other suitable southern Republicans such as Jeff Sessions or John Cornyn, to guide and defend the nominee.â₝

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Posted at 9:42am on Jun. 19, 2006 Overheated Rhetoric

By AndrewHyman

Howard Bashman has a column up today analyzing a recent Eighth Circuit case in which a conviction was vacated by appointees of this president, due to a faulty jury instruction. Bashman concludes:

[O]verheated rhetoric by foes of federal appellate court nominees can fail to paint a fair picture of what's truly at stake in the confirmation of highly qualified individuals to the bench.

Something tells me that Bashman's valid arguments won't end the overheated rhetoric (or end the unprecedented abuse of Senate rules).

UPDATE: Ralph Neas offered an excellent sample of overheated rhetoric earlier this month at a "Yearly Kos" event. A summary of Neas' speech is here. According to the summary of his speech:

The odds are that George Bush will have the opportunity to appoint another Supreme Court Justice. Senator Spector [sic], the Republican Chair of the Senate Judiciary Committee, does not have the courage to go against the right-wing. The Democrats have been trying to act as judges, to be fair and wait to hear what the nominee says. They need to fight this.

That's right. Ralph Neas urged Democratic Senators to fight their urge to be fair and to hear what a nominee has to say.

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Posted at 7:29pm on Jun. 18, 2006 Twenty-Five Years Ago Today

By AndrewHyman

Potter Stewart announced his retirement from the Supreme Court on June 18, 1981, effective on July 3, 1981. Allegedly, "Stewart resigned partly because he couldn't stand Warren Burger any longer; Burger, he said, was like the show captain on an ocean liner who entertains passengers in the dining room while the real captain steers the ship." When Stewart retired in 1981 at age 66, he made way for Justice Oââ‚â„¢Connor. It's frequently speculated that retirement hastened Stewart's demise. However, Stewart's death at age 70 was largely attributable to a discrete and very preventable event: in 1982, he fell at home, breaking several ribs and chipping his collar bone. That began a steady decline in Stewart's health.

Potter Stewart was widely considered a "swing vote" during his tenure on the Court. Patterico had a good post a few months ago about him, titled, "No More Potter Stewarts."

Stewart joined the decision in Furman v. Georgia (1972) which invalidated all death penalty laws then in force, but joined the Court's decision four years later in Gregg v. Georgia (1976), which upheld capital punishment legislation adopted in a majority of the states.

Stewart may be best known for his opinion in Jacobellis v. Ohio (1964). Stewart wrote that "hard-core pornography" was hard to define, but that "I know it when I see it." He later recanted his view about obscenity in Miller v. California (1973), voting with Justices Brennan, Marshall, and Douglas to hold that pornography among consenting adults was fully constitutionally protected.

Stewart dissented in Griswold v. Connecticut (1965), but was a key mover behind the Court's decision in Roe v. Wade (1973), in which Stewart endorsed the right fashioned in Griswold and went much farther. But in Harris v. McRae (1980), Stewart wrote that "Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life." Stewart's actual life ended on December 7, 1985 at age 70.

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Posted at 12:08pm on Jun. 18, 2006 All is Not Number

By AndrewHyman

GOP senators are circulating a memorandum that numerically summarizes the judicial nomination situation. The numbers are below the fold. The vacancy rate for the courts of appeals is 9.5%, which compares to 6% on May 1, 1986 when the GOP President was also midway into his second term while his party controlled the Senate. In contrast, President Carter finished his term in 1981 with a Democrat-controlled Senate, at which time the appellate vacancy rate was 4.2% ââ‚” less than half what it is now (and dozens of circuit judgeships were created during Carter's term). Pythagorus notwithstanding, numbers tell only part of the story. After all, the GOP could improve the numbers by nominating and confirming a bunch of Ralph Neas clones. Don't do it!

ââ‚¢ 46 ââ‚” The number of current vacancies on Article III courts ââ‚” 17 in the courts of appeals, and 29 in the district courts.

ââ‚¢ 22 ââ‚” The number of judicial nominations pending in the Senate, including 10 court of appeals nominees and 12 district court nominees. (Three of these nominations are to fill ââ‚Å“future vacanciesâ₝ anticipated in the future, but the judgeships are not currently vacant.)

ââ‚¢ 27 ââ‚” The number of vacancies for which the President has not submitted a nomination, including 9 vacancies on the courts of appeals and 18 vacancies on the district courts.

ââ‚¢ 21 ââ‚” The number of judicial emergencies in the federal court system.

ââ‚¢ 43 ââ‚” The number of judicial nominations confirmed during the 109th Congress, including 2 Supreme Court Justices, 10 court of appeals judges, 30 district court judges, and 1 Court of International Trade judge.

ââ‚¢ 204 ââ‚” The number of Article III judges who were confirmed in the 107th and 108th Congresses, including 35 court of appeals judges and 169 district court judges.

ââ‚¢ 5.4% ââ‚” Overall vacancy rate in the federal courts. (46/853) The vacancy rate for the courts of appeals is 9.5 percent (17/179), and, for the district courts, 4.3 percent (29/674).

Hat Tip: Tim Chapman.

P.S. Meanwhile, Jeff Goldstein explains what happens when the intentions of the interpreters are privileged over the intentions of the authors.

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Posted at 1:04am on Jun. 17, 2006 Saturday Open Thread

By aurel

All yours...

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Posted at 9:31pm on Jun. 16, 2006 Quote of Note

By AndrewHyman

ââ‚Å“I do commend the Republican Senate leadership for wisely passing over the controversial nominations of William Gerry Myers III, Terrence W. Boyle, and Norman Randy Smithâ₦.â₝

---Sen. Leahy on June 8, 2006.

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Posted at 8:49pm on Jun. 16, 2006 Gorsuch Gets Hearing on Wednesday

By Dave II

Something else exciting has just popped up on the schedule for next week, sportsfans. After Sandra Ikuta is confirmed to the Ninth on Monday, the Senate Judiciary Committee will hold a hearing on Neil M. Gorsuch on Wednesday. Gorsuch has been nominated to the Tenth Circuit, and fellow nominee Jerome Holmes just had a hearing yesterday. Looks like Specter is showing some courtesy to Colorado Senator Wayne Allard who yesterday wrote Specter a letter requesting that Gorsuch's nomination be expedited.

If confirmed, Gorsuch will be the youngest federal apellate judge in the nation at 39. Currently, Brett Kavanaugh is youngest at age 41.

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Posted at 12:03pm on Jun. 16, 2006 Holmes Opposed to Affirmative Action

By Dave II

Based on a report from yesterday's Judiciary Committee hearing for Tenth Circuit nominee Jerome Holmes, it seems that he is opposed to affirmative action. According to the Tulsa World, Holmes had criticized the Grutter v. Bollinger decision for its failure "to drive the final nail in the coffin of affirmative action."

Pat Leahy released a statement (update, the intrepid Bobo has provided us with the link) criticizing Holmes for this, though he does not say he will oppose him. The NAACP also sent a letter expressing "grave conern" about Holmes. Whatever. Tom Coburn was the only Senator at the hearing for Holmes, so it looks like Holmes is viewed as not worthy of controversy and should sail through. Good news.

Hat Tip goes to Bashman's excellent How Appealing.

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Posted at 11:43am on Jun. 16, 2006 The Department of Justice and Judge Boyle

By AndrewHyman

Today marks one year since Judge Terrence Boyle was approved by the Judiciary Committee, but amazingly his nomination has yet to be considered on the floor of the Senate (there has been no cloture vote and no up-down vote). Background info about Judge Boyle is linked at the right-hand-side of the confirmthem home page.

Senator Frist and the White House are saying that Boyle will get a floor vote. However, the Senate seems to be waiting for a detailed memo from the Justice Department about Judge Boyle's judicial career. Where's the memo?

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Posted at 12:32am on Jun. 16, 2006 Candid Specter

By Quin

(partially cross-posted from AmSpecBlog)

Split the Ninth Circuit...hearing for Haynes

Tonight the American Spectator hosted one of our occasional dinners with an interesting newsmaker, most of which such occasions are off the record. But our guest tonight, Sen. Arlen Specter of Pennsylvania, specifically asked that the free-flowing discussion be mostly on the record. And what a discussion it was! Specter was engaging, remarkably candid, and decidedly interesting throughout. Among his comments, mostly in chronological order, I've culled those of most interest to this site. A more comprehensive account is at the Spectator's site:

* Yes, he said, the U.S. judicial Ninth Circuit (known for its extremely liberal judges) is too big, and he intends to do something about it fairly soon. "We will split the circuit." "I believe we will split the court.... I believe it is something we will do early next year."

* He has some questions about the ongoing Valerie Plame investigation and about dragging certain unnamed persons (read: Karl Rove) before the grand jury five different times. "Down the line, when that case is finished, I hope to have some oversight on it."

* On Fourth Circuit Court of Appeals nominee Jim Haynes, top counsel at the Defense Department and apparent victim of stalling tactics or other opposition by GOP Sen. Lindsey Graham of South Carolina: "We're wrestling with Haynes.... Haynes may get another hearing. There's a lot to be said for giving him a chance to state his case."

* On the Democrats' conduct during hearings for judicial nominees, Specter was close to scathing. "Schumer was absolutely rude to Alito." Filibusters "lost them Daschle and lost them a fair number of seats."

And so, so very much more. Read all the other stuff... on Rick Santorum, on Harry Reid, and even on the "single bullet theory," at the AmSpecBlog here.

Good stuff all around. The senator was quite impressive, in front of what might have begun as at least a semi-skeptical audience, conservative as the audience was. I think he made some conservative political friends tonight.

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Posted at 11:16pm on Jun. 15, 2006 Allard on the Gorsuch Nomination

By AndrewHyman

The Rocky Mountain News reports:

Sen. Wayne Allard â₦ hand-deliver[ed] a letter to Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., this week asking him to expedite Gorsuch's confirmation.

Neil Gorsuch is an excellent nominee who ought to get a hearing pronto. Here's his resume, and here's a writing sample from Gorsuch.

UPDATE: Here's an article about the Judiciary Committee hearing for Jerome Holmes. Looks like Senator Coburn was the only Senator who attended.

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Posted at 1:11pm on Jun. 15, 2006 Getting tougher on Spam

By krempasky

Just an administrative note, friends. After months of pleading by Andrew and slow-walking by me...I've installed Spam Karma 2.2 here at Confirm Them. It's an agressive (read: nasty) antidote for spam comments - and it gives us a lot of flexibility to manage the site. That said, every time you roll out a new attempt to stop the damn dirty spammers, some friends get caught in the net. (think of it like non-dolphin-safe tuna) If you have any problems - email me at mkrempasky at that google email service.

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Posted at 12:01pm on Jun. 15, 2006 Lord on Judicial Nominations

By AndrewHyman

Jeffrey Lord has an excellent column today in the Philadelphia Inquirer about the continuing obstruction of judicial nominees. Lord urges reform in the Senate rules, and I urged the same thing in a post yesterday (subsequently updated). Something's got to be done, so that it will no longer be necessary for GOP Senators to credibly threaten the so-called "nuclear option" every time they want to confirm an obstructed nominee. That necessity is an incentive for further obstruction. Here's part of Lord's column:

STOP THE NOMINATION GAMES

It's time to pass Specter's reforms to the irresponsible handling of judicial nominations.

Jeffrey Lord is the author of "The Borking Rebellion," an inside look at the U.S. Senate's judicial confirmation process

There they go again.

It's bad enough that one political party in charge of the U.S. Senate plays games with the federal judiciary when the other party controls the White House. Now we have members of the same party playing games when their own party controls the White House. Either way, the result is bad for federal judges.

.....

If [Sen. Lindsey] Graham were informed today that his next election were moved up from 2008 to next week, he would correctly cry foul. Yet he shows not the slightest concern over letting a judicial nominee cool his heels for three years.

....

[E]very senator with an eye on the White House in 2008 should be hustling to make sure Haynes and other nominees are treated fairly. After senatorial abuse of the process reaching back to at least the Reagan administration, what makes any Democrat think things will change if the next president's name is Clinton, Kerry or Feingold?

Several years ago, Pennsylvania's own Sen. Arlen Specter proposed a series of excellent reforms that would bring a halt to what has become an out-of-control judicial confirmation process. They featured a timeline for hearings, committee votes and floor votes. If adopted, the rule changes would apply to all nominees of all presidents, regardless of which party controlled the Senate.

For no other reason than simple fairness, not to mention respect for the federal judiciary, it's time to pass those Specter reforms.

Of course, there will be bipartisan resistance from senators more interested in self-granted perks than the kind of impartial rules senators themselves look to as the lifeblood of their role as elected officials under the Constitution.

But Specter believes in these reforms and, as chairman of the Senate Judiciary Committee, he is in exactly the right place to get fair treatment for Haynes and finally reform the U.S. Senate's judicial confirmation process for good. After decades of senatorial mistreatment of judicial nominees, isn't it about time?

Pennsylvanians of all political stripes who are interested in seeing that the federal judiciary gets the same fairness senators demand for themselves should insist that their senior senator use his considerable yet momentary power to pass the Specter reforms.

Contact Jeffrey Lord at Jlpa1@aol.com.

Right now, any time the Gang of 14 or other Senators want to overcome obstruction of a nominee, they must be able to credibly threaten the "nuclear option." It's like Groundhog Day, over and over again. Not surprisingly, Senators are devising all kinds of ways to avoid having to deal with such a thing, which means nominees continue to hang in limbo for years.

Instead of a "nuclear" confrontation over a particular nominee, there ought to be confrontation over a rules change, and then we'd see which GOP senators think the disastrous status quo is just fine. Can't we have a little bit of glasnost and perestroika in the U.S. Senate?

Hat Tip: Third Branch News.

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Posted at 7:19am on Jun. 15, 2006 "Scalia Sparks Debate Over Role of Judges Both On Bench and Offâ₝

By feddie

An interesting article by Bloomberg on Justice Scalia. Hereââ‚â„¢s a taste:

Even if he hasnââ‚â„¢t won full-fledged converts, Scalia has reshaped the way attorneys and judges think about the law, court observers say. Thatââ‚â„¢s especially true with cases that involve interpreting federal law, where lawyers now routinely begin arguments by discussing the words and even the punctuation used by Congress.

ââ‚Å“Heââ‚â„¢s one of those very few justices who come along in a generation who really change the law,'ââ‚â„¢ said Christopher Landau, a former Scalia clerk who now practices at Kirkland & Ellis in Washington. ââ‚Å“He doesnââ‚â„¢t always win, but now people are arguing things on his terms.'ââ‚â„¢

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Posted at 9:07pm on Jun. 14, 2006 Ikuta Confirmation Coming Monday

By Dave II

The new Senate Executive Calendar is up and contains a unanimous consent agreement for a vote on Sandra Segal Ikuta to be a judge on the United States Court of Appeals for the Ninth Circuit. No doubt in my mind that she'll be confirmed uananimously Monday evening. I'll do a post right after she's confirmed that will be more in depth, but off the top of my head, I'll remind our readers that she replaces a Kennedy judge (!), that she'll be Bush's sixth judge on that Court (Clinton appointed fourteen), and that she will be the tenth Republican-appointed judge on the Ninth (sixteen Dems).

Also, the Senate Judiciary Committee is having an Executive Business Meeting tomorrow morning. District Court nominee Frank Whitney is the only judicial nominee scheduled to be voted on. He'll likely escape the SJC tomorrow.

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Posted at 7:18pm on Jun. 14, 2006 Graham and Lott on Judicial Nominations

By AndrewHyman

A few days ago, Senator Lindsey Graham responded to complaints about obstruction of judicial nominees. Today, Paul Mirengoff at Power Line finds Senator Graham's response incomplete:

Graham's letter fails to address the most important questions that arise from his course of conduct -- what has his role been in preventing the Haynes nomination from coming to a vote, and will he now commit to allowing such a vote following a full and fair debate?

Haynes has not yet been subjected to the most notorious form of obstruction: the judicial filibuster. But the judicial filibuster is alive and well and perhaps is waiting for him. Just ask William Myers, who has been filibustered for years.

In 2003, Senator Trent Lott proposed a straightforward way to end judicial filibusters. He proposed Senate Resolution 138, which would have changed the Senate Rules to place a cap on debate over judicial nominations. S. Res. 138 was approved by the Senate Rules Committee, but has since vanished down the memory hole without ever having been debated on the floor of the Senate, and without senators ever having gone on record supporting Lott's proposal or opposing it. That's unfortunate. Do you know how few votes could be required under the present Senate Rules to end a filibuster of Lott's proposal? Answer: 34. Details below the fold.

According to Senate Rule 22, ââ‚Å“on a measure or motion to amend the Senate rules â₦ the necessary affirmative vote shall be two-thirds of the Senators present and voting.â₝ This is an exception to the usual rule that says sixty Senators are required. Since the Senate can function and make decisions with only 51 Senators on the floor, two-thirds of that would be 34.

Basically, what this all means is that 51 GOP Senators could go to the Senate floor and demand a vote on S. Res. 138, and then some Democrats might start to filibuster, but the Democrats would have to muster at least 26 Senators for the cloture vote, in order to prevail.

It may be that S. Res. 138 was never brought to the floor for a vote because there was concern that the Democrats would muster 26 Senators to defend the practice of perpetual judicial filibusters (which practice had never existed until this presidential administration). Maybe there was also concern that the GOP senators might look like sore losers if they then implemented the constitutional option to achieve what could not be achieved within the normal rules.

All the same, a debate over S. Res. 138 would have been quite an event, and the American people would probably have rallied behind the GOP on this issue, rather than allow 26 Democratic Senators to obstruct indefinitely. I think S. Res. 138 should be revived, and debated on the Senate floor. A good opportunity for such a debate may occur soon, if Democratic Senators add Judge Terrence Boyle to their list of filibustered nominees.

Sen. Frist could disallow anything except emergency business on the Senate floor, until there is cloture on a rule change like S. Res. 138. Hereââ‚â„¢s what Sen. Frist said a few months ago: "Until the Senate votes, up or down, on the Alito nomination, [we] will not act on any other legislative item." Why not use that technique to get a rule change, within the framework of Rule 22? It's likely that a group of Democrats would ultimately abstain from voting against cloture, rather than prevent action on all other legislative items. If not, the constitutional option would be available.

UPDATE: I made a few minor changes on June 14 to clarify, including adding the last paragraph.

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Posted at 11:21am on Jun. 14, 2006 Contact Senate

By AndrewHyman

The organization RightMarch.com is hosting a letter-writing effort to contact the Senate on the issue of the continuing judicial filibuster. You can participate by clicking on the image at left. They've already sent more than five thousand messages to the Senate in the last two days, in order to protest the continuing judicial filibuster, which has no precedent in U.S. history before this presidential administration.

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Posted at 3:18am on Jun. 14, 2006 Coalition Letter to Senators

By AndrewHyman

The Honorable Ted Stevens

The Honorable William H. Frist, M.D.

The Honorable Mitch McConnell

The Honorable Rick Santorum

The Honorable Jon Kyl

The Honorable Kay Bailey Hutchison

The Honorable Elizabeth Dole

and copied to all Majority Senators.

United States Senate

U.S. Capitol

Washington, DC

Dear Senators:

As the representatives of millions of Americans who support you in elections, we write to ask you to devote more effort on and off the Senate floor to confirming the Presidentís circuit court nominees.

We write to remind you of your duty, but also because we are concerned that if the Majority that assured the confirmation votes of Chief Justice Roberts and Justice Alito lose just one seat in the next election, the future of the Supreme Court and the federal appellate bench will again be imperiled by use of filibusters. We write because we fear that the Majority is ignoring the impact of the nominations debate on its ability to gain the support of those small margins of voters that the Majority needs to secure unobstructed confirmations.

By contrast, and for example, you are planning to devote valuable Senate floor time to debating a flag-desecration constitutional amendment. While most of us would support such an amendment, we believe this is a misguided use of time.

In a survey, 150 conservative opinion and grassroot organization leaders, all with nationally or state recognized names, were asked to rate the flag-burning amendment as a priority before November on a scale of 1 to 5, with 5 being high in importance and 1 being low. With 125 responding, 75 rated it 1 (or lower), 99 rated it 2 or lower, and only 18 rated it 4 or 5. But when these 18 were asked to prioritize the use of Senate time between flag desecration and nominations, all who responded chose the judge issue.

We believe your valuable time is better spent on any number of things, such as Senator Kyl's Pledge Protection Act. But we all agree that debate on judicial nominations is time better spent, and time well spent early to build up steam.

Today the circuit courts have 18 vacancies. They are nearly 10 per cent vacant and President Bush has the lowest confirmation rate of circuit court nominations for any president, below 75 per cent.

So far you have allowed several circuit nominees to be defeated: Miguel Estrada, Charles Pickering, Carolyn Kuhl, and, most recently, Henry Saad of Michigan had to withdraw his nomination in the face of a deal by the Gang of 14 and the acquiescence of Majority leaders.

One nominee for the vitally important Ninth Circuit, William Myers, has been the subject of a filibuster for nearly two years. His nomination was denied cloture on July 20, 2004 by a vote of 53 to 44, with two still-serving Democrats voting with all 51 Republicans. Despite an election that enhanced the Majority, no effort has been made to press his confirmation since then, not even a second cloture vote.

Judge Terrence Boyle, nominated to the Fourth Circuit, a circuit that now hangs in the balance, is now the longest waiting judicial nominee in history. He may be the first obstructed nominee in Senate history to wait on the Senate executive calendar for a year without even a cloture vote. Rather ordinary, insubstantial, eleventh-hour charges against him have gone unanswered. Not a single senator has addressed the charges in his defense. It is no wonder that the White House is having trouble recruiting qualified men and women to serve on the bench. Opponents are to be expected, but not the carelessness of friends like you.

William "Jim" Haynes, nominated to the vital Fourth Circuit, also has set a record for you. He has waited the longest for a Judiciary Committee vote after having a hearing. As General Counsel of the Department of Defense during a national crucible, Jim Haynes has done a difficult job and deserves our thanks for his service. Instead, he has faced years of delay and a silent filibuster that denies him even the courtesy of addressing the reasons for delay. Haynes had his hearing on November 19, 2003. The Majority senator obstructing the Haynes nomination over policy disputes was too busy to attend.

With the departure of Judge Michael Luttig, the Fourth Circuit now needs Judge Boyle and Mr. Haynes more than ever. But even more pronounced is the urgency in the Ninth Circuit, a court that can only be described as a national scandal. This is the appellate court so often reversed and most often in the news. Yet you presently are slow walking three Ninth Circuit nominees. In addition to the filibustered Myers nomination, two other solid Ninth Circuit nominees are presently available on the Senate calendar.

Please note that, with the exception of Jim Haynes, the problem we address does not lie with Chairman Specter. He is moving nominees out of Committee at a reasonable clip. The Haynes delay is, however, contrary to the Chairmanís pledge three years ago to move nominees at a stated pace.

Although we cite numbers and statistics, our reason for writing is not about numbers. They can be too easily used to give the illusion of accomplishment. Your duty is to give Advice and Consent on the presidentís nominees, all of them. An up or down vote, hopefully leading to confirmation, is always the goal.

But if opponents engage, we believe debate is itself a gain. If opponents obstruct through abuse of Senate rules, highlighting that obstruction is vitally important, and not just for political advantage. It serves the Republic that the American people be fully alerted to what is at stake when they vote as the ultimate stewards of the Third Branch.

The judicial issue is a growing force among voters, and each battle over nominations provides an educable moment, an opportunity for a worthwhile national debate that helps to catalyze the differences between liberals and conservatives to the American people.

No doubt some of you will think that because this is an election year, it is expected that judicial nominations will slow down. Not by us. This old Senate tradition must give way to our experience in the last two elections.

Many of you ran and won in 2002 and 2004 because, in part, you promised to support the Presidentís judicial nominees and end Minority party obstruction. Perhaps you must advise your colleagues who last ran in 2000 that things have changed. Perhaps you should consider those 2006 candidates who are not yet in your meetings.

In March 2002, after the Judiciary Committee rejected Charles Pickering, Leader Frist, then NRSC chairman, was asked whether the Pickering controversy would have any effect on the 2002 election. He said, ÃÂNo.î He was wrong: In five states that year, it had a direct effect. In three states it related directly to the small margin that gave three Majority senators their seats. It was for a reason that in his one debate with a former vice-president in Minnesota, Norm Coleman mentioned Judge Pickering, the beleaguered Mississippi judge.

Likewise, many of you heard Senator Allen, as chairman of the NRSC, express a certain reluctance to spend much floor time on judges. His mantra for 2004 success was "Jobs jobs, jobs." He too was wrong. You have a larger majority than Senator Allen expected because he was wrong, and it was judges and judge-related issues that gave the president Ohio and a second term ... not "jobs."

In sum, we ask you to move circuit nominees to an honest up or down vote. We ask you to spend scheduled Senate floor time in vigorous debate, and we ask you to bundle the Ninth Circuit nominees to highlight the errors of the Ninth Circuit. If Democrats obstruct, view it as the role they will play in growing your majority.

In 2003, the current GOP Senate leaders made their mark on the judge issue with a bang; we do not wish for you to end now with a whimper.

Sincerely,

Manuel Miranda, Chairman, Third Branch Conference

Stephen A. O'Connor, Publisher, Human Events

Paul Weyrich, Coalitions for America

Hon. Abigail Thernstrom, United States Commission on Civil Rights

Ambassador Alan Keyes, Declaration Alliance

Donald E. Wildmon, American Family Association

David Keene, American Conservative Union

James L Martin, 60 Plus Association

Dr. Carl Herbster, AdvanceUSA

William J. Murray, Religious Freedom Coalition

Sean Rushton, Committee for Justice

Jeffrey Lord, author, The Borking Rebellion

Deal Hudson, Morley Institute for Church and Culture

James J. Fotis, Law Enforcement Alliance of America

George Landrith, Frontiers of Freedom

L. Brent Bozell III, Media Research Center

Bill Donohue, Catholic League

Fr. Frank Pavone, Priests for Life

Rick Scarborough, Vision America Action

Jan Larue, Concerned Women for America

Kay Daly, Coalition for a Fair Judiciary

Jeffrey Mazzella, Center for Individual Freedom

Rabbi Aryeh Spero, Caucus for America and host of "Talking Sense".

Joseph Cella, FIDELIS

Colin A. Hanna, Let Freedom Ring, Inc.

C. Preston Noell III, Tradition, Family, Property, Inc.

Rev. William Owens, Coalition of African American Pastors

Rev. Miguel Rivera, National Coalition of Latino Clergy & Christian Leaders

Samuel B. Casey, Christian Legal Society

Thomas Brejcha, Thomas More Society, Pro-Life Law Center

Dean Mathew D. Staver, Liberty Counsel and Liberty University School of Law

Stephen M. Crampton, AFA Center for Law & Policy

Dr. Dale Burroughs, Biblical Heritage Institute

Dr. Gary Cass, Center for Reclaiming America for Christ.

Amy Ridenour, Americans for the Preservation ofââ‚ Liberty

Tim Echols, Family Resource Network / TeenPact / Teen Leadership School

Chuck Muth, Citizen Outreach

William Greene, RightMarch.com

Larry Cirignano, CatholicVote.org

Mike Krempasky, RedState.com

Jeff Ballabon, Center for Jewish Values

Steven Mosher, Population Research Institute

Jim Boulet, Jr., English First

Jonathon Moseley, Esq., Legal Affairs Council

Gary Palmer, Alabama Policy Institute

Gregory M. Jones, Foundation for Moral Law

John Stemberger, Florida Family Policy Council

Dr. Patricia McEwen, Life Coalition International

Dr. Don Racheter, Public Interest Institute (IA)

Julie Lynde. Cornerstone Institute of Idaho

Gene Mills, Louisiana. Family Forum

Kent Ostrander, The Family Foundation (KY)

Mike Franco, Western Massachusetts Republicans

Gary Glenn, American Family Association of Michigan

Len Deo, New Jersey Family Policy Council

Ed Holdgate, New Hampshire Right to Life PAC Chairman

Karen Testerman, Cornerstone Policy Research (NH)

Marie Tasy, New Jersey Right to Life

Bill Brooks, North Carolina Family Policy Council

Forest Thigpen, Mississippi Center for Public Policy

Rev. Russell Johnson, Ohio Restoration Project

David Crowe, Restore America (OR)

Diane Gramley, American Family Association of Pennsylvania

Robert R. Galbreath Jr., Citizens for a Constitutional Republic

Thomas Smith, America 21 (TN)

Cathie Adams, Texas Eagle Forum

Hon. Kenneth Whitehead, Falls Church Republican Committee (VA)

Dr. Kenneth L. Hutcherson, Mayday for Marriage (WA)

Julaine K. Appling, The Family Institutue of Wisconsin

John C. Eastman, Professor of Law (CA)

David Gibbs III (FL)

Rodolfo E. Milaniââ‚ (FL)

James Hochberg (HI)

Judge Darrell White (Ret.) (LA)

Don Feder (MA)

Michael Valerio (MA)

Robert W. Peters, Esq. (NY)

Jill Stanek, columnist (IL)

Third Branch is a coalition of grasstop leaders working to improve the federal courts.

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Posted at 8:54pm on Jun. 13, 2006 Tenth Circuit Nominee Gets Hearing on Thursday

By Dave II

The agenda has been released for the Senate Judiciary Committee's hearing on judicial nominations this Thursday, and it looks unusually productive. There will be a total of three judges getting the Specter treatment. Tenth Circuit nominee, Jerome Holmes, apparently the first African-American nominated to the Tenth Circuit, will be up first. Also getting hearings will be two U.S. District Court nominees, Daniel Jordan for Mississippi, and Gustavo Gelpi for Puerto Rico.

Holmes will replace Judge Stephanie Seymour, a Carter appointee. Jordan and Gelpi will replace Reagan judges, Tom Lee and Hector Laffitte, respectively.

Incidentally, I note two additional things. One, the SJC will hold an executive business meeting earlier the same day, but that agenda has not yet been released. I imagine that Frank Whitney will be freed at that point. Also, and this is more important, Michael Brunson Wallace has again been passed up for a hearing, despite being nominated three months before all three of these judges. It seems to me this guy is getting the Terrence Boyle and Jim Haynes treatment, just being swept under the rug without so much as a peep from the White House or the Senate. I don't think it's right.

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Posted at 6:59pm on Jun. 13, 2006 Flag Amendment Is Not Bad

By Quin

In light of yesterday's press conference urging confirmation of more judges, a thoughtful Senate source reminds me that, not just as a political sop but for legitimate substantive reasons, the proposed amendment against flag burning matters a great deal to veterans groups, especially perhaps to veterans of WWII and Korea. It therefore does conservatives no good to stick a finger in their eye. The nation owes its life to these veterans, and their concerns are important and valid.

That said, virtually all of the reporting on yesterday's press event (including, I admit, my own) failed to note (or, in my case, failed to fully give the flavor of, because I did at least note it) a crucial distinction made by those speaking. A number of different times, they (particularly Manny Miranda) stressed that they ALSO support the flag amendment, but that their point was that if it were the ONLY choice, i.e. an "either-or" proposition, they would prefer that the Senate spend time on judges rather than the flag. The point was to emphasize just how important judges are: If they would rank judicial confirmations even more highly than they rank something the media already knows they support, that emphasizes that judges are at the top of the list of issues for conservatives -- not necessarily that the flag is way low on the list, but only lower in comparison to the judges.

Now (leaving my own editorializing again), back to the Senate source, who pointed out that holding the vote on the Flag Amendment is an ethical duty, because the leaders have for so long promised to do just that. Just as conservatives rightly get angry when other promises are not kept, so the veterans (who are largely, almost certainly, an hugely overlapping set with "conservatives") are right to be angry if elected officials don't keep promises to them.

Elected officials have a duty to keep their promises. The first George (read my lips) Bush forgot that duty, and lost his re-election race largely because he did so forget.

The Senate source makes good sense.

Luckily, there is no good reason (as Miranda and others noted) why judges and flag are an either-or proposition; there is no good reason why time can't be found for both, so that both can be supported as they should be.

The KEY thing is for rank-and-file GOP senators to understand, as I believe the Senate leadership and most of the Judiciary Committee members understand, that judges aren't just a sideshow and not just a sop to the social right, but that they are widely and crucially important to all sorts of conservatives and to a broad swath of middle America that cares about law and order, private property, and a host of other things that judges influence.

Thanks to the Senate source for the thoughts, and thanks to the leadership for whatever success it may have in convincing the bulk of the GOP Senate membership of just how important is the issue we here so care about, that of confirming judges -- or, AT THE VERY LEAST, upholding the Constitution by getting them fair, non-filibustered, up-or-down votes on the Senate floor.

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Posted at 1:15am on Jun. 13, 2006 Hewitt Interviews the A.G. While <em>Congress Daily</em> Reports Press Conference

By AndrewHyman

Hugh Hewitt interviewed Attorney General Gonzales on Monday regarding judicial nominees and other topics.

Also on Monday, Quin had an excellent post about a press conference at which conservative leaders asked Senators to skip things like the Flag Burning Amendment, so the Senate can instead focus on judicial nominations. Indeed, the feeling is pretty widespread that we're not interested in "boob bait for the Bubbas" (Quin's phrase), and would prefer confirmation of solid judicial nominees. John Kalinger, over at the CFJ Blog, summarizes an article in Congress Daily about the press conference. The Hill has further details about the press conference, here. Cybercast News Service has more here. Focus on the Family describes the press conference here.

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Posted at 11:09pm on Jun. 12, 2006 More Ceremonial Deism

By Carol Platt Liebau

According to a federal judge, "In God we trust" can stay on our currency without violating the First Amendment because it amounts only to a secular national slogan.

So once again, ceremonial deism rears its ugly head. In other words, the phrase passes constitutional muster because it really doesn't mean what it says; the religious speech is only permissible when it's actually secular. Or something like that.

This is a sign of how wacky a lot of Supreme Court First Amendment precedent has become. Here's hoping the Roberts Court is going to get some of this mess tidied up.

Cross posted at CarolLiebau.blogspot.com

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Posted at 9:13pm on Jun. 12, 2006 New Georgia District Court Nomination!

By Dave II

Sorry, sportsfans, I know you're waiting for Circuit Court nominees, but today we have to make due with a District Court nominee, Lisa Godbey Wood for the United States District Court for the Southern District of Georgia. Let's find out more about Ms. Wood below the fold!

Lisa Godbey Wood has, since summer 2004, been the United States Attorney for the Southern District of Georgia. She went to University of Georgia for undergrad and law, and graduated No. 1 in her class from law school in 1990. While there she worked on law review. After law school she clerked for District Court Judge Anthony Alaimo (Nixon appointee) before joining the Brunswick firm of Gilbert, Harrell, Summerford, and Martin in 1991, where she was apparently a litigator until her appointment as U.S. Attorney.

If confirmed, Wood would replace Dudley H. Bowen, Jr., a Carter appointee who is retiring. Another Carter appointee replaced by Bush. Nice!

If anybody cares, Wood has been a steady contributor to Bush, Johnny Isakson, and Saxby Chambliss while in private practice. She also donated money to former Georgia Senator Mack Mattingly when he ran against Zell Miller in the special election. Also, (and I apologize in advance) her photo at the U.S. Attorney site is quite attractive (sorry, but it needed to be said). Judging by when she graduated law school, I'd guess that Wood is near 40.

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Posted at 7:33pm on Jun. 12, 2006 Senex and Schlussel

By AndrewHyman

Ever seen the word "senex" before? It's Latin for "elder." The word "Senator" is derived from it, as are various other words. I bring this up because today Senator Byrd became the longest-serving Senator in U.S. history. Congratulations, Senator Byrd. But seeing as how the average age of the Supreme Court is greater than the average age of the Senate, maybe the Court should instead be called the Senate (and the 100-member body could be called "the body formerly known as the Senate").

Anyway, I now pass along this link to Debbie Schlussel's web site. She has a post with the following title: ââ‚Å“BREAKING SCHLUSSEL EXCLUSIVE: Bush to Nominate PORN ADDICT, TERROR SYMPATHIZER, RACIST to Court of Appeals.â₝

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Posted at 6:30pm on Jun. 12, 2006 I Must be Boring

By Quin

Obviously, I'm setting myself up VERY badly for lots of insults and also some good-natured needling, but I've gotta say I'm starting to think I'm just not loved here. (I know, I know: Cue the sappy violins.) No, really, I must be boring you guys, because my last two posts have received so few comments (13 on a wetlands case and what it says about this site's ever-popular Paul Clement, and just seven so far on today's press conference pushing judges in lieu of the Flag Amendment). So c'mon, folks, feed my ego! Start commenting! Other recent posts have received 101, 201 and, a week or two ago, even 601 comments, so I know we can step it up. And if the posts are NOT about just trading more rumors and speculation about the next Supreme Court pick, but actually get into the substance of cases or actually report news events, then please let's get a good debate going that might illuminate the blogosphere!

:)

;)

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Posted at 4:15pm on Jun. 12, 2006 Waiving the Flag for Judges

By Quin

(This is cross posted from the AmSpecBlog.)

Yes, that is supposed to be "waiving," not "waving."

Just a little earlier today, a coalition of conservative groups organized by Manny Miranda of the Third Branch Conference held an important press conference to announce an overwhelming agreeement that, if the choice is between passing an amendment banning flag burning, as the Senate is scheduled to consider this week, or spending the time necessary to confirm more judicial nominees, the groups strongly prefer the confirmation of judges. (In other words, they would waive the flag issue in favor of the judges.) Not that they don't approve of the flag amendment but, in the words of the American Conservative Union's David Keene, the flag issue is "more symbolic than substantive," whereas the confirmation battles are of highest substantive AND political importance. The flag issue, Keene said, Is "not very salient" right now.

Of course, a bunch of GOP senators obviously consider both issues to be the equivalent of "boob bait for the Bubbas," in other words just throwaway crumbs every once in a while to keep the natives on the right from getting too restless. IN other words, the senators consider themselves to be sort of slumming with us either way, rather than understanding that judicial confirmations are crucially important not just for right-wing hot-button issues but for the protection of the Constitution itself more broadly -- AND important as well for political reasons, because voters motivated by the issue can mean the difference between victory and defeat. Such is not necessarily the case with an 18-year-old issue like flag burning. (Of course, in the best of all worlds, the Senate would consider both issues, because it wouldn't waste so much time either on other issues or, even worse, out of session. But that's a topic for another day.)

Random notes and quotes from the press conference:

From Keene: "The purpose of our gathering here today is to let members of the Senate know that we do not have a 29-miute attention span." "On the right, people are CONTINUALLY concerned" about judges. "We hope that people in the Senate don't just say, 'oh, we've done some of that' (i.e. confirmed a single judge or two judges) and move on." Also, making judicial confirmations an issue in Senate campaigns "will work to the benefit of Republican candidates."

From Jan LaRue of Concerned Women of America: Senators must understand that is is "their constitutional DUTY...[to perform their jobs] of advice and consent." "Our constituents will not be put off by being told 'we have more pressing business." LaRue also took direct shots at South Carolina Republican U.S. Sen. Lindsey Graham and, to a lesser extent, at Sen. John McCain, for obstructing 4th Circuit nominee Jim Haynes, a counsel at the Department of Defense.

William Greene of RightMarch.com said judicial confirmations are one of the two or three biggest issues for conservative activists nationwide, and he echoed LaRue (in effect) when he also said that the senators "better answer to their constituents" and that "they have a duty" to give final floor votes to the nominees.

Lars Liebler, a former law clerk for long-embattled circuit court nominee Terrence Boyle (now a federal district judge), noted that of the 16,000 opinions Boyle has joined, a whopping 99% hvae been either NOT appealed or, if appealed, not overturned -- and that of the ones that have been appealed, 93% have been affirmed by higher courts -- which is higher than the national average.

Jeff Lord, author of "The Borking Rebellion" and sometime contributor to the American Spectator web site, called on the Senate to pass reforms long pushed by Judiciary Committee Chairman Arlen Specter that would establish more formal rules and a formal timetable for considering all nominees.

Also speaking were the wonderful Jim Martin of "60-Plus," Tom McClusky of the Family Research Council, and Pat Woodward of the Republican National Lawyers Association, while Sean Rushton of the Committee for Justice also took questions (as did Miranda, who answered them at length, but I wasn't taking notes as extensively during Q&A).

All I have to add is that these speakers were all correct. COnfirming good judicial nominees with dispatch preserves the Constitution, it's good politics...and it's only fair to the nominees themselves to let them know, up or down/yes or no, whether they will become judges, rather than forcing them to put their lives on hold, often at great personal and financial cost, while waiting for senators to preen and play nasty political games.

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Posted at 11:43pm on Jun. 11, 2006 What the Roberts and Alito Confirmation Battles Were About

By AndrewHyman

As Feddie mentioned a few days ago, George Will recently wrote this:

[T]he addition of Alito enabled the court to prevent the 9th Circuitââ‚â„¢s approach from pulling the nationââ‚â„¢s courts even more deeply than they already are into supervising American life. What were the Roberts and Alito confirmation battles about? That.

Actually, I'd expand on "that" a little bit. The hope of many of us is the Court will pull back from its excessive supervision of American life. Merely preventing the Court from becoming more involved is the least of it. The Court has inadvertently become a dictatorial institution, albeit perhaps with good intentions; people like me seek not entrenchment of dictatorial decisions, but reversal of them.

In the year 2000, for example, the Court absurdly decreed that the following grisly crime is something that the authors of the Bill of Rights meant to exalt as a fundamental American freedom, in the event that contraception should fail:

The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. Stenberg v. Carhart, 530 U.S. 914, 1007 (2000) (Thomas, J., dissenting) (quoting a nurse) (citations omitted).

Other methods for aborting a fetus, even after the embryonic stage (which lasts two months from conception), have also been deemed worthy of protection by the Court, "in the event that contraception should fail." See Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992). The Court has decreed that if a woman wishes to rip apart her unborn child limb from limb, then no one --- not her boyfriend, not her husband, and not her parents --- may get in the way, nor may her community even impose the slightest penalty after the fact. Our Supreme Court does not care if the fetus has brain waves, or fingerprints, or a heartbeat, any more than it cares whether a right to abortion is reasonably implied by a single word in the Constitution. It seems pertinent that most states (e.g. California) have enacted laws that treat the third-party killing of a fetus as "murder."

Admirably, 72% of women believe that at least second-trimester abortion should generally be illegal (Roe made abortion legal until viability, which occurred after the second trimester). I would not be involved with this web site if I didn't hope there was some chance of ousting the Supreme Court from a place where the Constitution never authorized it to go. I agree with the following sentiments, quoted in the Boston Globe, on Jan 22, 2000:

Roe v. Wade was wrong because it ââ‚Å“usurped the power of the legislatures,â₝ Bush said. ââ‚Å“I felt like it was a case where the court took the place of what legislatures should do in America,â₝ 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.

So, no, the Roberts and Alito confirmation battles were not just about preventing the courts from becoming more involved with supervising American life. They were also about the fervent hope that our democratic institutions will be allowed to restore human decency and the rule of law to this country.

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Posted at 2:05pm on Jun. 11, 2006 Research Project-Help Wanted

By aurel

If you're interested, one of our regular commenters, using the screen name"BoBo", is putting together a complete list of all Supreme Court clerks on Wikipedia. This will be an extremely useful tool once it's complete. It's a very time-consuming job to collate this type of information from publicly available sources. Anyone who wants to help out, can pitch in with information --either post it in this thread, or make the changes directly in Wikipedia if you know how. Thanks!

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Posted at 3:38pm on Jun. 10, 2006 Meet the New Sixth Circuit Nominees?

By Dave II

One of our diligent members, tbaugh, has alerted me to an article from the Detroit News that reports Bush will soon name Michigan lawyers Stephen J. Murphy III and Raymond Kethledge to the United States Court of Appeals for the Sixth Circuit. Who are these guys? Let's break it down below the fold!

According to the Detroit News,

Detroit FBI agents have interviewed local lawyers and federal judges in recent weeks in conducting background checks of Murphy, the eastern Michigan's top federal prosecutor, and Troy lawyer Raymond Kethledge, a former law clerk to Supreme Court Justice Anthony Kennedy.

Murphy, 43, a former assistant U.S. attorney, was a lawyer at General Motors Corp. before he took over as U.S. attorney in March 2005.

Kethledge, 39, was also counsel to U.S. Sen. Spencer Abraham and an attorney for Ford Motor Co.

Stephen J. Murphy III, currently the U.S. Attorney for the Eastern District of Michigan, has practiced law since graduating from St. Louis School of Law in Missouri in 1987, where he was assistant editor of the law review. He served in the Department of Justice and U.S. Attorney's Office as a trial lawyer from 1987-1992 before becoming general counsel to Ford Motor Company in 2000. He returned to the U.S. Attorney's Office in 2005. From this bio, you can learn that he was also President of the local Federalist Society from 2002-2003. He has been an adjunct professor for both Ave Maria Law School and Detroit Mercy School of Law for many years. Here's an article about his swearing in as U.S. Attorney that shows he has friends on both sides of the aisle.

Raymond Kethledge is currently a partner at the Michigan firm of Bush, Seyferth, Kethledge, and Paige. He graduated from the University of Michigan School of Law in 1993, and clerked for Sixth Circuit Judge Ralph Guy (Reagan appointee) and Supreme Court Justice Anthony Kennedy. He then served as general counsel to Sen. Spencer Abraham from 1995-1997. Like Murphy, he was at one time a counsel to the Ford Motor Company, and he was previously a partner in the firm of Honigman Miller Schwartz and Cohn. Judging by when he graduated law school, I'd guess he's not yet 40.

Both men sound like great picks to the Sixth Circuit. Currently, this Court has an 8-6 party divide with a Republican majority and two vacancies. As the third largest court of appeals, it's important to cement a good conservative majority up there. These gentlemen sound like they could do the job.

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Posted at 1:08pm on Jun. 10, 2006 I Declare an Open Thread!

By Dave II

A Saturday tradition. I'll start it off with a cool story in the comments.

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Posted at 7:02pm on Jun. 9, 2006 What About Boyle? Part 25717662

By AndrewHyman

It now looks like Terrence W. Boyle, who was first nominated to the Fourth Circuit by George H. W. Bush in 1991, and subsequently nominated and renominated by George W. Bush, just might finally get a long overdue vote on the floor of the U.S. Senate. The Charlotte Observer reports:

In an interview Wednesday, [North Carolina Senator Richard] Burr said he had been told by the White House and by Frist that Boyle will get a floor vote.

For those who give credence to the ABA ratings, yesterday the ABA revised its ratings, and Judge Boyle remains "well-qualified."

I'm also pleased to include this link to a letter supporting Judge Boyle. The letter is dated June 8, and is from Patricia L. Holland to Senator Bill Frist. Ms. Holland is a former Assistant U.S. Attorney, who for the past 23 years has been with the firm of Cranfill, Sumner, and Hartzog in Raleigh, where she is a partner. Her attorney profile is here. Ms. Holland has participated in numerous cases before Judge Boyle, including the case of Edwards v. City of Goldsboro which has been cited by a few police organizations opposed to the Boyle nomination. Ms. Holland writes the following in her letter:

I have been astounded by the portrayal of Judge Boyle that I have witnessed in the media as his nomination to the Fourth Circuit has been considered....I would also like to point out that I am a life-long Democrat....At the risk of sounding a bit less professional than I might wish, I frankly find it quite ridiculous that the nomination of a jurist of Judge Boyle's talents and intellect has not been confirmed long ago.

Additionally, I received an email today from Professor Lauren C. Bell of Randolph-Macon College in Ashland, Virginia. I had previously posed the following question: "In the past, which committee-approved nominees have waited the longest on the Senate Calendar without receiving a cloture vote?" Professor Bell notes that William Fletcher was first approved by the Judiciary Committee on May 16, 1996, but then the full Senate took no action before the end of the session. President Clinton renominated Fletcher and he was again reported out in May 1998, but was not approved until October, 1998. So, Fletcher seems to have waited on the Senate Calendar without a cloture vote for a total of about 8+5=13 months. Thank you very much, Professor Bell, for providing the information about Judge Fletcher, as an example of what's happened in the past. Let's not allow Judge Boyle to exceed Judge Fletcher's 13-month wait on the Senate Calendar.

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Posted at 4:35pm on Jun. 9, 2006 A special nomination

By krempasky

Many congratulations to Alex. He's been serving in an acting capacity in Florida (including securing the first Abramoff indictment) - and now the President is making it permanent.

NOMINATIONS SENT TO THE SENATE:

R. Alexander Acosta, of Florida, to be United States Attorney

for the Southern District of Florida for the term of four years.

Alex has served the country and this President faithfully since (if I remember) December, 2000 - and this appointment is well deserved.

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Posted at 1:26pm on Jun. 9, 2006 Senator Graham Responds re. the Haynes Nomination for 4th Circuit

By AndrewHyman

As you may recall, a large group of people wrote a letter to Senator Lindsey Graham a few days ago, urging him to not block a hearing and committee vote for 4th Circuit nominee William J. Haynes. Hot of the presses (so to speak) is Senator Graham's response.

Others have also recently urged that Haynes be given a fair hearing and a committee vote, including the Wall Street Journal and Power Line.

By the way, in other nomination-related news, rumor has it that the top female contenders on the administration's short list for a Supreme Court vacancy would be Priscilla Owen, Maura Corrigan, Janice Rogers Brown, and Diane Sykes. I'll be having more about the Boyle nomination later today.

UPDATE: The Post and Courier in Charleston, South Carolina has an editorial today urging the Senate to get moving with the Haynes nomination.

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Posted at 11:05am on Jun. 9, 2006 On Wetlands/Rapanos and Clement

By Quin

After reading more than 200 pages (maybe more than 250) of decisions and briefs on the Rapanos and Carabell cases, I am delighted today to launch (or maybe it is be launched by the Examiner) a new, monthly column for the DC Examiner called "Quin-essential cases" -- on the subject, of course, of important court cases (and important judicial battles). On this case in particular, clearly the "conservative" jurisprudential side is that of the landowners vs the overweening reach of the Feds as the Feds expand the meaning of the Commerce Clause beyond all recognition. (A host of conservative legal leaders filed amicum briefs on behalf of the Landowners; my original version of the column twice quoted a brief by Ed Meese and John Eastman, but the two quotes were edited for space reasons.)

Meanwhile, it's worth noting that Solicitor General Paul Clement, of course, filed on behalf of the Government (the "bad guys" in this case) here; because Clement is such a favorite on this site, and so often mentioned as a favorite possible Supreme Court choice, let me add to my column a few comments on Clement's performance in this case.

First, it should be noted that sometimes a Solicitor General is forced to argue a side about which he isn't enthusiastic. It is widely understood, for instance, that Ted Olson disagreed with the wishy-washy Bush administration position on the Michigan affirmative action cases (Grutter), but Gonzalez overruled him. So while Clement may or may not have fully supported the government's position in Rapanos, there's no absolutely sure way to know and thus it is probably not fair to hold his "position" against him.

What IS able to be judged is the impressiveness (or lack thereof) of his briefs from the standpoint of the effectiveness and persuasiveness of its writing and legal reasoning. Here, I must admit to being quite impressed with the Government's presentation of its arguments even as I disagreed with it. Clement did a superb job of making his case, and I urge anybody interested to look up the cases for yourself and see. (They can be found on this eco-group's web site.)

One thing I particularly noticed when I was reading the Rapanos filings is that the Rapanos lawyers kept making a big deal of the fact that the Rapanos "wetlands" at most had a mere "hydrological connection" to any navigable waterway, and that such a mere hydrological connection should not suffice -- yet in Clement's brief, he barely addressed/barely defended the "hydrological connection" argument that seemed so central to the case as put forth by the Rapanos lawyers. I thought it seemed very, very, very odd -- as if CLement was almost conceding defeat by failing to refute what seemed like such a key point.

I should have known better.

When I read the briefs in Carabell, I realized (I think) what Clement was doing. As it turns out, the Carabell lawyers' arguments make much of the fact that the Carabell wetlands have NO proven "hydrological" connection to a navigable waterway. None at all. Which means that if Clement had argued in Rapanos that the key factor was the hydrological connection, he could not turn around in Carabell to argue, as he did, that what was important was a wetland's "adjacency" to a tributary of a navigable waterway.

In other words, had he risen to the bait in Rapanos, he would have left himself open to defeat in Carabell. Instead, he found other arguments that put him in the best position to win both cases.

It was really good stuff. (Many cursewords from Quin here.) I hate it when a good guy makes a bad argument brilliantly. ("Bad" in the sense not of being ineffective, but in the sense of being on the wrong side from me!)

Anyway, I fervently hope the landowners win and the government (and Clement) loses in these cases. But the cases serve only to reinforce my admiration for Clement's abilities.

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Posted at 9:30pm on Jun. 8, 2006 A Nice Treat

By Dave II

Today, I got a treat when I received a nice email from Judge Leslie Southwick in response to my post a few days ago about his nomination to the federal district court in Mississippi. He said he had read my earlier post (reprinted below), and offered me a few more biographical facts about himself. Upon my request, the judge has given me permission to add those facts to the blog and attribute them to him. I'd like to thank the judge for taking the time to communicate with me and his graciousness in giving me permission to post some more facts about his legal experience. It's very cool to know that a member of the judiciary has read the site. The updated facts follow the original post below.

Leslie Southwick has been nominated to replace William Henry Barbour, a Reagan appointee. Leslie Southwick is currently a judge on the Mississippi Court of Appeals, an intermediate appellate court beneath the Mississippi Supreme Court. He received a J.D. from the University of Texas in 1975, and then clerked for the Presiding Judge of the Texas Court of Criminal Appeals (stateââ‚â„¢s highest court on criminal cases). He followed that clerkship up with Judge Charles Clark (Nixon appointee) on the Fifth Circuit. He was in private practice in Jackson from 1977-1989 before joining the Justice Department, as a Deputy Assistant Attorney General in the Civil Division. His bio at the Mississipi Supreme Court doesnââ‚â„¢t say when he joined the Court of Appeals, but I gotta say that looks like a stellar resume. Iââ‚â„¢m surprised heââ‚â„¢s just being nominated for a District judgeship. Going by the dates he graduated law school, Iââ‚â„¢d guess heââ‚â„¢s in his mid-fifties.

UPDATE: Judge Southwick has informed me that he joined the Mississippi Court of Appeals in 1995, and that he is indeed 56. I can only say that with ten years appellate experience he sounds even more like an outstanding nominee, and I look forward to his swift confirmation.

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Posted at 8:41pm on Jun. 8, 2006 Whelan, Burr, and Dole on Judicial Nominations

By AndrewHyman

Over at Bench Memos, Ed Whelan continues to reveal the backgrounds and biases of the ABA committee that's charged with rating judicial nominees.

And Senator Specter isn't the only Senator writing letters to the White House these days. North Carolina's two Senators, Elizabeth Dole and Richard Burr, have written to request that more North Carolinians be nominated for the Fourth Circuit Court of Appeals. Of course, Judge Boyle is a North Carolinian, and perhaps the Senate will one day give him a vote. In a few days, it will be one full year that Judge Boyle has languished on the Senate Calendar, without ever having been given a cloture vote, much less an up-or-down vote. At least someone like William Myers was accorded a cloture vote, so that all Senators were forced to go on record, and citizens have been able to hold those Senators accountable. If anyone out there knows the answer, I'm curious whether any other nominee in American history besides Judge Boyle has waited nearly a year on the Senate Calendar, without having received a cloture vote.

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Posted at 5:13pm on Jun. 8, 2006 4 New District Judges Confirmed (Updated)

By Dave II

This post has been updated at 7:58 to note who the new judges are replacing.

Today is just a great day it seems. Zarqawi has been killed, the Iraq government is complete, and today the Senate defeated the Hawaii Government bill. But wait there's more! The Senate confirmed FOUR District Court judges. Some of these judges had been waiting years. Just as the Senate cleared the District judges from its calendar, the Senate Judiciary Committee sent Andrew Guilford (California District nominee) to them. The only downside is that North Carolina District nominee Frank Whitney was held over. Still, today is a good news day.

Let's break it down by nominee judge below!

Two New Jersey Judges and two Michigan Judges were confirmed today.

First, Noel Lawrence Hillman (nominated 01/25/06), 49, was confirmed to the U.S. District Court for the District of New Jersey by 98-0. Hillman replaces William Bassler, a G.H.W. Bush appointee. Of all the nominees confirmed today, Hillman is the only one who can't complain. He was nominated less than 5 months ago, while his fellow nominees have all been waiting for years. Hillman graduated from Seton Hall Law School and has been in the United States Attorney's Office since 1992. For the past five years, he has been Chief of the Public Integrity Section at the Department of Justice. Hillman also clerked for Judge Maryanne Trump Barry when she was on the U.S. District Court.

Second, Peter Sheridan (nominated 11/05/03), 56, was confirmed to the U.S. District Court for the District of New Jersey 98-0. He replaces Stephen Orlofsky, a Clinton appointee (nice). Sheridan graduated from Seton Hall Law School, and has many years of experience both in government and private practice. From 1993-94 he was Executive Director of the State Republican Committee.

Sean Cox (nominated 9/10/04), 48, was confirmed to the U.S. District Court for the Eastern District of Michigan by voice vote. He replaces Lawrence Zatkoff, a Reagan appointee. Cox graduated from the Detroit College of Law and has many years of experience in private practice. Since 1996, he has been a state trial judge in Michigan.

Thomas Ludington (nominated 9/12/02), 46, was confirmed to the U.S. District Court for the Eastern District of Michigan by voice vote. He replaces Paul Gadola, a Reagan appointee. Judge Ludington has been a state trial judge in Michigan for the past several years. At nearly 4 years, he was the longest waiting District Court nominee that I'm aware of from the Bush administration. Today his wait came to an end.

Next week the Senate Judiciary Committee will hold a hearing on judges, but no word just who yet. If the Senate makes any plans for confirmation of some of the Circuit judges on its calendar, I will update as usual.

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Posted at 4:24am on Jun. 8, 2006 Hewitt and Bashman on the Relative Power of Judges

By AndrewHyman

Many people believe that a DC Circuit Court judgeship is more important than a circuit court judgeship in one of the regional circuits, because a DC Circuit judge has jurisdiction over matters that arise in so many federal agencies. Hugh Hewitt is one of those who view a DC Circuit judgeship as especially powerful and significant, and that view is supported by the large number of DC Circuit judges who eventually wind up on the Supreme Court. Hugh talked about vacancies in the DC Circuit yesterday, with Senators Sessions and Cornyn.

A related question is the relative importance and power of trial court judges as compared to appellate judges. It's a timely topic, because US district court judges seem to be more easily confirmed nowadays in the Senate, and US district court judges also seem more frequently to be the subject of "deals" between the political parties. Below the fold is a discussion of the relative power of trial judges versus appellate judges, from the blog How Appealing --- way back in 2002.

Howard Bashman said:

In my view, the most powerful member of the federal judiciary (non-Justice O'Connor category) is the federal district judge. He or she is the sole decisionmaker at the federal trial court level, and as the sole decisionmaker a district judge wields power that federal appellate judges seldom if ever possess.... [An appellate judge] has no power to "make law" unless at least one other judge on a three-judge panel agrees with her. And, in cases where her vote is dispositive because another judge has dissented, the chances of en banc or U.S. Supreme Court review grow much larger. Generally, however, federal appellate court nominations receive much closer scrutiny from the Senate, the public, and the press than do nominations to serve on the federal district court. Does the perception that a seat on a federal appellate court is more important than a seat on a federal trial court make sense? Maybe not.

A commenter responded to Bashman:

The main difference between the two is that the trial judge is more powerful in deciding a given case -- thus changing life for those parties -- but the appellate judges are far more powerful in deciding the broader legal and ideological issues that change society. Generally, there is a spectrum between "power to change the world" and "power to have the de facto last word on the parties before me," and the players in the confirmation battles care about changing the world.

Click on the two links above for more thoughts on the topic. Also, keep in mind that a U.S. district court judge often acts in a kind of appellate capacity, regarding matters that have been removed from state court. But I still think that each U.S. court of appeals judge has a far greater impact on society than a single U.S. district court judge has, and that's why I care much more about getting appeals court judges confirmed.

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Posted at 9:34pm on Jun. 7, 2006 New Nomination, Confirmations Coming Tomorrow

By Dave II

First things first. Tomorrow, Republicans intend to bring four District judges up for a vote. That's very good news because those vacancies sorely need to be filled. Currently, there are only four District Court judges on the Senate's Executive Calendar, and they are: Sean Cox and Thomas Ludington of Michigan, and Peter Sheridan and Noel Hillman of New Jersey. Three of these nominees have waited a very long time: Ludington was first nominated in 2002, Cox in 2003, and Sheridan in 2004. Obstruction by the Democrats from Michigan and New Jersey is to blame.

Also, today the White House nominated a new District Court Judge. Today's nominee is Gregory Kent Frizzell.

Gregory Frizzell is an Oklahoma District Judge in Tulsa County. I don't know anything else about him, so I invite our intrepid members to please pass along anything you know or find in the comments.

Frizzell is set to replace Sven Holmes, a Clinton appointee. Always good to see Bush replace one of his predecessor's judges. Originally, Jerome Holmes was nominated to this seat, but the White House changed its mind and nominated him to the Tenth Circuit instead. Looks like that worked out for Frizzell.

UPDATE: Here is an article about the nomination. Frizzell is 49, got his J.D. from University of Michigan, and clerked for U.S. District Judge Thomas Brett.

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Posted at 9:38am on Jun. 7, 2006 WSJ, Hecht, and Sasser on Judicial Nominations

By AndrewHyman

The Wall Street Journal has a subscription-only article today titled "A Different Judicial Battle." Here's how it starts:

The Senate is back in session, and we'll soon see if Republicans are serious about confirming President Bush's nominees for the appeals courts. Majority Leader Bill Frist kept his promise to confirm Brett Kavanaugh to the D.C. Circuit before Memorial Day, after he'd waited three years for a vote.

So who's next? Mr. Frist wanted to move Fourth Circuit nominee Terrence Boyle by Memorial Day too, but no go. A federal judge in North Carolina, Mr. Boyle has the honor of waiting longer than any appeals-court nominee in history for a floor vote.

Meanwhile, here's a recent letter in support of the Boyle nomination from Jonathan Sasser, an attorney who has practiced before him. And, the Washington Post reports about Texas Supreme Court Justice Nathan Hecht's support of the Miers nomination. Some new stuff about the Haynes nomination is below the fold.

UPDATE: Paul Mirengoff has some further thoughts about the Haynes nomination, here and here. Courtesy of Third Branch News, here is some more of the WSJ article mentioned above:

Democrats .... are distorting a couple of Judge Boyle's civil rights decisions and making conflict-of-interest allegations that add up at worst to minor infractions....

William "Jim" Haynes II, another stalled Fourth Circuit nominee.....was named on September 29, 2003, had a hearing two months later, and was voted out of committee in March 2004. But don't blame this delay only on Democrats. Two Republicans -- Senators John McCain and Lindsey Graham -- are also causing the holdup.

Mr. Haynes is the Pentagon's general counsel, and his transgression is to have offered legal advice on the treatment of detainees in the war on terror. The big point of contention is his role in Defense Secretary Donald Rumsfeld's decision in December 2002 to allow "coercive" interrogation techniques against al Qaeda detainees at Guantanamo.

The Pentagon says Mr. Haynes offered legal analysis; his critics distort this to say he was instrumental in forging a policy that could be used to justify "torture." But there is no evidence that anyone condoned torture, and it was the CIA, not the Pentagon, that used "waterboarding" that critics cite as the most coercive sanctioned technique.

In any case, Mr. Rumsfeld rescinded his decision within six weeks after Pentagon lawyers took their concerns to Mr. Haynes, who then took them to Mr. Rumsfeld. Even if you believe the "coercive" techniques policy was a mistake, its reversal was due in no small part to Mr. Haynes, who did his duty of providing legal analysis. Mr. Haynes met with Senator McCain for an hour last month and agreed to answer written questions about the issue.

Senator McCain's anger over the Air Force's tanker deal with Boeing also unfairly extends to Mr. Haynes. As general counsel, Mr. Haynes had the job of reviewing and, in some cases, redacting the small library's worth of documents the Senator demanded. A McCain spokeswoman tells us that the Senator has not made a decision about whether to support the nomination.

It's hard to see how opposing Mr. Haynes would achieve anything except win the Senators some fleeting praise in the establishment media. It wouldn't impress GOP primary voters in Mr. Graham's home state of South Carolina, an important Presidential primary state in 2008 and home to many Haynes supporters. In defeating Mr. Haynes, Mr. McCain would mainly be validating those critics who want to punish anyone associated with the war in Iraq. Is this how a President McCain would treat his appointees who come under political fire for offering honest counsel?

There are 18 vacancies on the appeals-court bench -- 10% of the total -- and not many weeks left to fill them before election-year campaigning makes judicial confirmations next to impossible. Seven nominees are currently waiting for a hearing or vote. With Republicans in danger of losing Senate seats, if not their majority, now is the time to honor one of their campaign pledges from 2004 by confirming Mr. Bush's judicial nominees.

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Posted at 10:52pm on Jun. 6, 2006 2 New District Court Nominees

By Dave II

Tonight, the White House made two new nominations to the U.S. District Court. They are Marcia Morales Howard to the Middle District of Florida, and Leslie Southwick to the Southern District of Mississippi. We break it down by nominee below the fold!

Marcia Morales Howard has been nominated to replace Harvey Schlesinger, a G.H.W. Bush appointee. Howard is currently a Magistrate Judge for the Middle District of Florida, and has been since 2003. She got her J.D. from the University of Florida, and was in civil private practice for 13 years prior to her appointment as a U.S. Magistrate. Going by the dates she graduated from undergrad and law school, I'm guessing she's about 40.

Leslie Southwick has been nominated to replace William Henry Barbour, a Reagan appointee. Leslie Southwick is currently a judge on the Mississippi Court of Appeals, an intermediate appellate court beneath the Mississippi Supreme Court. He received a J.D. from the University of Texas in 1975, and then clerked for the Presiding Judge of the Texas Court of Criminal Appeals (state's highest court on criminal cases). He followed that clerkship up with Judge Charles Clark (Nixon appointee) on the Fifth Circuit. He was in private practice in Jackson from 1977-1989 before joining the Justice Department, as a Deputy Assistant Attorney General in the Civil Division. His bio at the Mississipi Supreme Court doesn't say when he joined the Court of Appeals, but I gotta say that looks like a stellar resume. I'm surprised he's just being nominated for a District judgeship. Going by the dates he graduated law school, I'd guess he's in his mid-fifties.

Sounds like two great nominees by the White House. No Circuit Court nominees just yet.

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Posted at 10:21pm on Jun. 6, 2006 White House Renews Push for Nominees as Conservatives Write Letter to Graham

By AndrewHyman

The Hill has an article tomorrow by Alexander Bolton on the judicial nomination situation. Here are some excerpts:

White House officials are making a concerted effort to cooperate with outside conservative groups to support and defend President Bushââ‚â„¢s nominees to the federal bench, and they are also planning to work more closely with the Senate on confirming the nominees.

The greater focus on judges comes in the wake of privately expressed criticism from conservative leaders that the White House and the GOP-controlled Senate were doing little to defend high-profile nominees such as William ââ‚Å“Jimâ₝ Haynes and Terrence Boyle, both picked for the 4th U.S. Circuit Court of Appeals, from attacks by liberals.

....

[T]he Department of Justice is crafting a memo on Boyleââ‚â„¢s conduct as a judge, and activists close to the White House such as Edward Whelan, president of the Ethics and Public Policy Center who authored a recent article in the conservative Weekly Standard, are stepping up their advocacy on behalf of the judicial nominees.

ââ‚Å“I sense that,â₝ said Sen. Jeff Sessions (R-Ala.), a member of the Senate Judiciary Committee, when asked yesterday if he noticed more effort by the White House to support the judicial nominees. He added that he met with Boyle and a White House aide Monday in a meeting he said he assumed was set up by the administration.

....

ââ‚Å“Weââ‚â„¢ve got to get moving faster on judicial nominees,â₝ said DeMint, who added that Frist has told him judicial nominees are a priority. A White House official said that several of the nominees have sat in the Senate for a long time and that the administration is asking senators to make a decision about whether to confirm them or not, whether to ââ‚Å“fish or cut bait.â₝

The greater cooperation between the White House and conservative groups comes several weeks after White House political adviser Karl Rove and counsel Harriet Miers told conservatives in a private meeting that they would begin sending more judicial nominees to the Hill. But so far few nominees have been sent. The White House official said that to the extent there is a push on judges it is an effort to wrap up background checks on judicial nominees and send them to the Senate more quickly. The effort is a direct recognition that the window of opportunity for getting nominees confirmed in the Senate may be closing as Election Day and the end of the 109th Congress approaches.

Sen. Lindsey Graham (R-S.C.), a member of the Judiciary Committee, has come under heavy fire from conservatives for blocking Haynesââ‚â„¢s nomination. Yesterday, nearly 80 prominent conservative leaders including David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman of Coalitions for America; Manuel Miranda, chairman of the Third Branch Conference; and Saul Anuzis, chairman of the Michigan Republican Party, delivered a letter to Graham rebuking him for ââ‚Å“effectively blockingâ₝ Haynesââ‚â„¢s nomination in the Judiciary Committee.

....

Graham defended himself yesterday by saying that he is not blocking Haynes in committee and arguing that the conservative leaders who signed the letter do not represent all conservatives. But Graham refused to say whether he would cast a crucial vote to pass Haynes out of committee.

The full text of the letter to Senator Graham is below the fold.

National Coalition to End Judicial Filibusters

Senator Lindsey Graham

290 Russell Senate Office Building

Washington, DC 20510

June 6, 2006

Re: The Nomination of Jim Haynes

Dear Senator Graham:

We represent a coalition of organizations that cares deeply about putting constitutionalist judges on the federal courts. We are writing to express our concern about your lack of support for the nomination of William "Jim" Haynes to the U.S. Court of Appeals for the Fourth Circuit, effectively blocking him in committee.

With the recent resignation of Judge J. Michael Luttig, and Terrence Boyleââ‚â„¢s seemingly endless confirmation delay ââ‚“ also, rumor has it, with Republican acquiescence ââ‚“ the Fourth Circuit needs principled constitutionalists more than ever. In addition, Judge Widener has notified the President he will retire upon his replacement's confirmation. So, the Haynes nomination affects the lives of two public servants.

But our concerns go beyond the Fourth Circuit. In particular, we believe your opposition to Mr. Haynes in the Judiciary Committee is damaging to the principle that judicial nominees with majority support are entitled to an up or down vote on the Senate floor, and blurs the line between the GOPââ‚â„¢s treatment of nominees and the Democratsââ‚â„¢ minority-obstructionist tactics. Some have even suggested your non-hold/hold amounts to a "silent filibuster" of Jim Haynes.

Despite the American Bar Association twice giving Haynes its highest rating, his nomination has languished in the Senate for nearly three years. Having already been approved by the Judiciary Committee in 2004, his re-approval should be little more than a formality. Instead, your objection to him has prevented even a vote in committee.

In fact, Brett Kavanaugh's recent confirmation amounts to the only strong constitutionalist confirmed to an appellate court since the confirmations immediately following the Gang of Fourteen deal more than a year ago. This is an odd result, given an enhanced Senate Republican majority.

We understand that you and Senator McCain have concerns about the Bush Administrationââ‚â„¢s policies on prisoners captured in the War on Terror, and about Mr. Haynesââ‚â„¢s role in implementing those policies at the Defense Department. However, Jim Haynes has had the obligation to defend the legal rights of his client, the Defense Department, and to follow the legal advice of the Justice Department.

Jim Haynes did a difficult job at a difficult time and deserves our nationââ‚â„¢s thanks for his service. Instead, he has faced years of delay, denigration, and stealth tactics that deny him even the courtesy of understanding the reasons for delay.

As a former Air Force lawyer, you know how misleading it can be to conflate U.S. military and legal policy with the personal opinions and preferences of the attorneys implementing those policies. Such tactics have been used in past by Senate Democrats and their allies to smear President Bushââ‚â„¢s nominees, a practice you have rightly criticized. Policy disputes with the administration should not carry over to the Senate's consideration of qualified judicial nominees.

We have fought hard to establish the principle that judicial nominees with majority Senate support are entitled to an up or down vote. While we respect your concerns about Jim Haynes, the bases for those concerns simply do not warrant throwing aside such an important principle.

By all reports, your withholding of support for Haynes is all that stands between him and passage out of the Judiciary Committee. If you wish to send the Bush Administration a message on Jim Haynes, that is your right, but we ask you do so by voting against the nominee on the Senate floor.

For now, we ask that you allow him to proceed through committee to an up or down vote before the entire Senate.

Sincerely,

Paul Weyrich, Coalitions for America

Carl Herbster, AdvanceUSA

Donald E. Wildmon, American Family Association

David Keene, American Conservative Union

Bill Donohue, Catholic League

Richard A. Viguerie, ConservativeHQ.com

Fr. Frank Pavone, Priests for Life

L. Brent Bozell III, Conservative Victory Committee

James J. Fotis, Law Enforcement Alliance of America

Connie Mackey, FRC Action

Tom McClusky, Family Research Council

Jan Larue, Concerned Women for America

Rev. William Owens, Coalition of African American Pastors

Rick Scarborough, Vision America Action

James L. Martin, 60 Plus Association

Mathew D. Staver, Liberty Counsel and Liberty University School of Law

George Landrith, Frontiers of Freedom

Dr. James H. Broussard, Citizens Against Higher Taxes

Sean Rushton, Committee for Justice

Kay Daly, Coalition for a Fair Judiciary

Manuel Miranda, Third Branch Conference

Wendy Long, Judicial Confirmation Network

Tom Fitton, Judicial Watch

Jeffrey Mazzella, Center for Individual Freedom

Michael Krempasky, ConfirmThem.com

Phillip L. Jauregui, Judicial Action Group

Rabbi Aryeh Spero, Caucus For America and host of "Talking Sense".

Andrea Lafferty, Traditional Values Coalition

Raymond J. Tittmann, Catholics for the Common Good

Austin Ruse, Culture of Life Foundation

Joe Cella, FIDELIS

Colin A. Hanna, Let Freedom Ring, Inc.

Amy Ridenour, Americans for the Preservation of Liberty

Kenneth Boehm, National Legal and Policy Center

Larry Cirignano, CatholicVote.org

Jeffrey H. Ballabon, Center for Jewish Values

Steven Mosher, Population Research Institute

Jim Boulet, Jr., English First

Mark Williamson, Foundation Restoration Ministries / Federal Intercessors

C. Preston Noell III, Tradition, Family, Property, Inc.

William Greene, RightMarch.com

Thomas A. Glessner, National Institute of Family and Life Advocates (NIFLA)

Chuck Muth, Citizen Outreach

Dr. Patricia McEwen, Life Coalition International

Mychal Massie, Project 21

Jonathon Moseley, Esq., Legal Affairs Council

Tracy E. Ammons, Christian Citizens of America

Jason Wright, Institute for Liberty

Maurine Proctor, Family Leader Network

Gary Palmer, Alabama Policy Institute

Dr. Randy Brinson, Redeem the Vote

John Stemberger, Florida Family Policy Council

Michael N. Duff, United Families of Idaho

Peter LaBarbera, Illinois Family Institute

Micah Clark, American Family Association of Indiana

Dr. Don Racheter, Public Interest Institute (IA)

David Crowe, Restore America (OR)

Kent Ostrander, The Family Foundation (KY)

Gene Mills, Louisiana Family Forum

Judge Darrell White (Retired), Louisiana Family Forum Action

Douglas P. Stiegler, Association of Maryland Families

Mike Franco, Western Massachusetts Republicans

Kristian M. Mineau, Massachusetts Family Institute

Saulius "Saul" Anuzis, Michigan Republican Party

Karen Testerman, Cornerstone Policy Research (NH)

Len Deo, New Jersey Family Policy Council

Rev. Russell Johnson, Ohio Restoration Project

Diane Gramley, American Family Association of Pennsylvania

Robert R. Galbreath Jr., Citizens for a Constitutional Republic

Christopher Carmouche, GrassTopsUSA

Robert Regier, South Dakota Family Policy Council

Kelly Shackelford, Liberty Legal Institute (TX)

Ted Brown, Young Republican Federation of Virginia

Dr. Ken Hutcherson, Antioch Bible Church, Redmond, WA

Julaine K. Appling, The Family Institutue of Wisconsin

Jeffrey Lord, author, The Borking Rebellion

Jill Stanek, (OH)

Robert McConnell (DC)

James Hochberg (HI)

John C. Eastman, Professor of Law (CA)

Lillian Bevier , University of Virginia Law School

Chris Dickson, radio host, "The Dickson/Chappell Report" (IN and OH)

Adam McManus, radio host, "Take A Stand" (TX)

Martha Zoller, Jacobs Media Corp., radio host, WDUN, (Southeast}

Tamara Scott, radio host (IA)

Janet Parshall, nationally syndicated radio host

cc: Senator First, McConnell, Santorum, Kyl, Hutchison, Dole, Stevens, Specter, Hatch, Grassley, DeWine, Sessions, Cornyn, Brownback, Coburn.

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Posted at 3:44pm on Jun. 6, 2006 Shepherd is conservative

By Quin

I've been promising y'all some word on Eighth Circuit nominee Bobby Shepherd for a couple of weeks now, figuring that, since I used to work in Arkansas, I would be able to dig up some good sources. Well, in addition to Bar Association folks raving about his intellect and integrity (sometimes, but not always, a good indicator, and occasionally a bad one), I FINALLY have the first word from somebody I KNOW without a doubt to be a solidly conservative legal guy, who reports as follows: "Do not know him well. I do know he is solidly conservative."

Again, I am asking y'all to trust the people I trust, but I think my record so far on knowing whose judgment to trust on nominees is a good one. So far, then, based on this initial thin reed combined with various reports of Shepherd's intelligence and diligence, etc., I see no problem at all with the nomination.

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Posted at 3:36pm on Jun. 6, 2006 New District Court Judge Confirmed

By Dave II

Today, the Senate confirmed Renee Marie Bumb to be a federal judge on the U.S. District Court for the District of New Jersey. The vote was 89-0. Bumb is Bush's seventh appointment to the New Jersey District Court. To put this in context, Clinton appointed seven judges to this court, only five of whom are still serving, and Bush has two more ready to be confirmed.

Renee Bumb is 46 years old, and got her law degree from Rutgers. She clerked for current Chief Judge Garrett Brown on the District Court in New Jersey, and was an associate for three years at Riker, Danzig, Scherer, Hyland & Peretti. Since 1991, she has been an Assistant United States Attorney for the District of New Jersey, so she has served during three consecutive Presidential administrations.

Bumb replaces William Walls, Clinton's first appointment to the New Jersey District Court. Sounds like progress to me!

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Posted at 2:30pm on Jun. 6, 2006 Boyle's Waited Almost a Year on Floor, Meets with Senators

By AndrewHyman

Human Events reports:

U.S. Appeals Court nominee Terrence Boyle, who has waited since the first President Bush to be confirmed to the 4th Circuit, met today with Senate Majority Leader Bill Frist's (R.-Tenn.) chief of staff.

I understand that he also had other recent meetings on the Hill too. Judge Boyle was approved by the Senate Judiciary Committee last June 16, so it's been almost a year without any kind of floor vote --- not even a cloture vote that would put all Senators on record. Boyle was originally nominated for this Fourth Circuit position by President George H.W. Bush in 1991, but was not given a hearing by the Democratically-controlled Judiciary Committee at that time. Now, the Republican-controlled Senate ought to proceed with the nomination, unless it wants to deny Judge Boyle what it was not willing to deny nominees like Miguel Estrada (i.e. a cloture vote). The Frist meeting is a good sign that things are moving forward. Links about Judge Boyle are over at the right-hand-side of the confirmthem home page. Give Boyle an up or down vote!

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Posted at 7:11am on Jun. 6, 2006 Haynes in WaPo

By AndrewHyman

The Washington Post has a piece today about 4th Circuit nominee William Haynes. Excerpt below the fold.

The conservative group Committee for Justice has launched a telephone and e-mail campaign against ... Sen. Lindsey O. Graham (S.C.). Last week, some retired military lawyers came to Graham's defense, sending letters to the Judiciary Committee that call Haynes unfit for a lifetime appointment to the appellate court.

Haynes's "unwillingness to listen to others caused him to preside over the DOD legal system during the time of its greatest debacle in memory, the abuse of detainees by military personnel around the world," wrote John D. Hutson, a retired rear admiral who was a senior Navy lawyer. Donald J. Guter, who held the same rank, wrote that he doubted Haynes would have the independence or judgment to oppose unwise policies being pushed by his superiors.

Among those praising Haynes in letters to the committee is Bernard D. Meltzer, a retired law professor and former assistant trial counsel in the trials before the International Military Tribunal in Nuremberg. Meltzer wrote that he got to know Haynes while consulting with the Pentagon and that "I was impressed by his informed and sensitive concern for the rights and legitimate interests of those who might be tried before a military commission."

Why not give him a hearing to air all the new accusations? His previous hearing was on November 19, 2003.

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Posted at 9:04pm on Jun. 5, 2006 Bartlett and Mirengoff on Judicial Nominations

By AndrewHyman

The Senate's confirmation of Brett Kavanaugh's nomination to the D.C. Circuit Court of Appeals shows the emptiness of the liberals' previous threats to filibuster qualified judicial nominees who will strictly interpret the Constitution.

---Dan Bartlett, Counselor to the President

If Senator Graham ... feels that Haynes is unfit to serve on the Fourth Circuit by virtue of his legal memos (or for any other reason) that's fine. But let's have the debate and the vote.

---Paul Mirengoff of Power Line

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Posted at 1:48pm on Jun. 5, 2006 Fourth Circuit

By AndrewHyman

Power Line says:

[T]he administration deserves great credit ..... for many of its court of appeals selections. But at least one court of appeals, the Fourth Circuit, has been ill-served by this administration. Three current judges on that court were nominated by Bush. Only one, Dennis Shedd, can be considered a restrained judicial conservative.

Several contenders for the Luttig seat are listed here.

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Posted at 2:06pm on Jun. 4, 2006 Sunday Open Thread

By AndrewHyman

Below the fold is some fodder for discussion.

From an an article in the Washington Post:

No longer content with bashing Democrats for their obstruction of President Bush's judicial nominees, a coalition of conservative groups is now turning its attention to a prominent Republican -- Sen. Lindsey O. Graham (S.C.).

From an Associated Press article:

Chief Justice John Roberts said last fall he would like to see the Supreme Court take up more cases. So far, however, his arrival has had the opposite effect.

From Ed Whelan at Bench Memos:

Based on interviews of administration officials whom Brett Kavanaugh spoke with at the time, my article reveals the real story of what Marna Tuckerââ‚”the new D.C. Circuit member on the ABAââ‚â„¢s judicial-evaluation committeeââ‚”tried to do to Kavanaughââ‚â„¢s nomination, and of ABA committee chairman Steven Toberââ‚â„¢s complicity. Rank partisan bias, public lies, failure to follow its own proceduresââ‚”all that and more characterize what Tucker and Tober did.

Confirmthem previously mentioned those ABA characters here. Also, here's a little bit more info about Bobby E. Shepherd:

U.S. Magistrate Judge Bobby E. Shepherd of El Dorado stands to make a little history if the U.S. Senate confirms his nomination to fill a vacancy on the 8th U.S. Circuit Court of Appeals in St. Louis. It would mark only the second time that anyone has pole-vaulted directly from a federal magistrate judgeship into a circuit judgeship.

....

In 1998, Barry G. Silverman was a magistrate judge in Arizona when he moved up to his current position with the 9th U.S. Circuit Court of Appeals. Carelli said his officeââ‚â„¢s research shows that in 1999, former U.S. Magistrate Judge Charles R. Wilson became a judge on the 11th U.S. Circuit Court of Appeals. But Wilsonââ‚â„¢s term as a federal magistrate judge had ended five years earlier, when he became the U.S. attorney for the Middle District of Florida, a job he held from 1994 through 1999. Both former magistrates who became circuit judges were nominated to the federal appellate courts by President Clinton.

....

Shepherd has issued about 1,500 substantive opinions in Social Security cases and nearly 400 substantive opinions involving prisoners. It could not be determined what percentages of his opinions have been affirmed or overturned.

....

Both of the stateââ‚â„¢s U.S. senators, Democrats Blanche Lincoln and Mark Pryor, have expressed strong support for Shepherd. Spokesmen for each of the senators said last week that they have heard only positive feedback about Shepherd from the Arkansas legal community and so far have heard no complaints about his nomination.

UPDATE: Earlier this week, John Kerry called several Supreme Court justices "idiots." Patterico has details about that idiocy.

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Posted at 8:58pm on Jun. 3, 2006 "Roberts: 'The hard part is coming up'"

By feddie

CNN has this report on the high-profile cases left to be decided by SCOTUS this term, with a little something extra at the end of the article on the possibility of a justice retiring this summer:

The Supreme Court has shown a surprising degree of unanimity and harmony since Chief Justice John Roberts took over last fall.

But recent signs of tension and a rush to finish the courtââ‚â„¢s work by monthââ‚â„¢s end could fray the justicesââ‚â„¢ tenuous show of unity.

. . . .

Among the big cases to be decided: a major test of presidential authority over planned military tribunals of suspected foreign terrorists . . . . One involves capital punishment and last-minute appeals. A Tennessee inmate wants to press his contention that new DNA evidence will clear him of murdering a young woman two decades ago . . . . Politics is the other major issue. The justices must try and craft a rule dealing with the 2002 Texas congressional map created by GOP state lawmakers . . . . A separate case asks whether Vermont may restrict how much statewide candidates can spend in political campaigns.

. . . .

In a year that saw Chief Justice William Rehnquist pass away after a third of a century on the bench and Oââ‚â„¢Connor leave after a quarter century as the first woman justice, there there has been little talk of another pending retirement.

Court sources say the justices as a group are very pleased with Robertsââ‚â„¢ leadership, and no retirement is expected.

Insider, what say you?

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Posted at 8:33pm on Jun. 3, 2006 "Ripples From Two Court Choices"

By feddie

I thought CT's readers would be interested in George Will's latest column. Here's a taste:

Last Tuesday Justice Anthony Kennedy, writing for the court and joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, noted that the court has held that government "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." But the Ceballos case was not about conditioning employment; it was about whether government employees are constitutionally exempt from discipline related to speech made in the conduct of their official duties. (The federal government and most states already have statutes protecting whistle-blowers.)

. . . .

Ceballos's case was originally argued after Justice Sandra Day O'Connor announced her retirement but before she was replaced by Alito. It was then reargued, which suggests that without Alito the court was split 4 to 4. If so, the addition of Alito enabled the court to prevent the 9th Circuit's approach from pulling the nation's courts even more deeply than they already are into supervising American life.

What were the Roberts and Alito confirmation battles about? That.

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Posted at 1:54pm on Jun. 3, 2006 It's A Saturday Open Thread

By krempasky

Enjoy. And don't forget the advertisers - they keep the lights on.

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Posted at 4:17pm on Jun. 2, 2006 Who Is Bobby Shepherd?

By Dave II

Back on May 18th, Andrew wrote a post announcing that the White House had nominated Bobby E. Shepherd to replace Morris Sheppard Arnold on the Eighth Circuit Court of Appeals. At the time all anyone seemed to know was that Shepherd was a U.S. Magistrate Judge and had graduated from the University of Arkansas Law School. Almost immediately, there was a firestorm from some of our commenters who didn't feel that Shepherd was "distinguished" enough for the promotion. Recently, the Justice Department website has put his resume online, so now we can all find out a little more about him.

Shepherd is 55 and is a lifelong Arkansan. He graduted from Ouachita Baptist University before studying law at University of Arkansas. He was in the Army Reserve from 1973-1981. He was in private practice with various firms, including a couple he apparently founded, for 14 years before becoming a trial judge in Arkansas. After two years on the state bench, he became a U.S. Magistrate Judge for the Western District of Arkansas in 1993. For the past 13 years, he has been ruling from that bench, and now he is very likely to be promoted to the Court of Appeals for the Eighth Circuit and will become President Bush's seventh appointee(!) to that court.

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Posted at 11:36am on Jun. 2, 2006 Clement impressive in person

By Quin

At the extremely impressive swearing-in ceremony for Brett Kavanaugh yesterday in the Rose Garden -- Bush was impressive, Kavanaugh was impressive, and the turnout of conservative heavyweights was impressive, including John Ashcroft, Kenneth Starr, Janice Rogers Brown, and a host of other top names -- I had the good fortune to speak with, and then sit next to during the whole ceremony, Solicitor General Paul Clement. Oddly enough, he was two years behind me at Georgetown as an undergrad, but we didn't know each other and didn't even know OF each other. (See Quin's ego deflate: I thought I was pretty well known on campus. It was a nice lesson in humility.) Anyway, all along on this wonderful site I've read people singing Clement's praises without myself ever having direct or even close second-hand discussions with or about him with somebody whose judgment I trust. Well, now I see why there has been such a groundswell of praise for him. It's not like we had the chance to discuss legal/jurisprudential philosophy or anything, so I can only assume he is as solid a conservative on that score as people here think he is, but.... I did come away with two VERY strong impressions. One, of course, is Clement's obvious intelligence. All of us know, I think, almost immediately, when we meet somebody who has a sharp and discerning mind. Clearly, Clement is one of those somebodies. Two, I was struck by Clement's pleasant personality. He just seemed like a good guy. Not a glad-hander, not an ingratiating fake, not an egomaniac... just a decent human being. Obviously, brief impressions can be wrong, but the impressions were strong. All of which leads me to believe all the praise for him is likely to be on target.

Oh, and one other thing: I told him that if he ever needs an ego boost, he should read ConfirmThem and he wouldn't have to scroll down very far, at any time, to see a compliment aimed his way. He smiled. He seemed familiar with our little site.

Good guy.

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Posted at 12:09am on Jun. 2, 2006 New Michigan Judges Imminent

By Dave II

According to this article in the Grand Rapids Press, the White House will soon announce four new nominees to the U.S. District Court in Michigan, the state with the most and and the longest-standing vacancies. (Sean Cox and Thomas Ludington were nominated earlier and are awaiting Senate confirmation.)

But only two of them are worth getting excited about. That's because the other two are Democrats.

In a deal that mirrors the Susan Wigenton deal struck with New Jersey Democrats several months ago, the White House will nominate two Democrats and two Republicans in exchange for Michigan Senators Carl Levin and Debbie Stabenow ending their obstruction of all Michigan nominees. That means that in the end, a total two Democrats and four Republicans will take the bench.

I feel for the White House on this one. They've held out a long time, but now they're being forced to make the same type of deals that Clinton made near the end of his second term. Of course, the key difference here is that Bush has the largest Republican Senate majority in 55 years, one that could easily have solved this problem for him, and Clinton was faced with a majority opposition. But Bush is getting about as much support for his nominees from this Senate as Clinton did in 98-2000, so I don't know what choice the White House really has here.

The article also states that the Michigan Deal will allow the White House to fill the two remaining Sixth Circuit vacancies. If both of those are going to good conservatives, then I will have few complaints. A few District judgeships are small potatoes compared to cementing a conservative takeover of one of the most important Courts of Appeals. It's just a travishamockery that it has come to this with a Republican Senate.

Hat Tip to the excellent How Appealing.

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Posted at 8:03pm on Jun. 1, 2006 Congratulations, Judge Kavanaugh

By aurel

Congratulations to Brett Kavanaugh! He was sworn in today as a judge on the U.S. Court of Appeals for the District of Columbia by Justice Kennedy, for whom he once clerked. He was first nominated by the President on July 25, 2003.

PS: The first decisions of Judge Kavanaugh have already come in -- and judicial conservatives will be pleased....

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Posted at 3:28am on Jun. 1, 2006 Taking a Few Days Off

By AndrewHyman

Things are pretty slow now in the judicial nomination drama, so I'll be focusing for a few days on earning a livelihood, although others may be blogging here (and we'll at least have open threads).

In case anyone's interested, I recently revised Wikipedia's entry for the Ninth Amendment (look fast before someone changes it some more).

By the way, in case you missed it, Associated Press reported on Tuesday that, Supreme Court Justice Announces Retirement.

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Posted at 2:09am on May 31, 2006 Tuesday/Wednesday Stuff

By AndrewHyman

Not a whole lot going on lately regarding judicial nominations. The Senate's in recess, which means there's even less action than usual. Regarding Judge Boyle, the ABA still has not withdrawn his well-qualified rating, as they did for Judge Payne --- it will be interesting to see if the ABA does so or not.

Meanwhile, there's an in-depth post over at Redstate titled, "Justice McConnell Will Not Overturn Roe."

Also, earlier this month, we overlooked a thoughtful article titled, "Judicial Selection and Confirmations: A Time To Consider Reforms." The author is Makan Delrahim, former Chief Counsel and Staff Director of the U.S. Senate Judiciary Committee and former senior official at the U.S. Department of Justice, appointed by President Bush.

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Posted at 8:57am on May 30, 2006 Amusing Headline

By AndrewHyman

In the New York Post: HILLARY'S SEXGATE FOE WINS FIGHT FOR JUDGE JOB!

In other news, Patterico had a serious post yesterday about the Gang of 14 Deal. I've copied some of it, and pasted it here:

[D]idnââ‚â„¢t that Gang of 14 capitulation deal bring us Alito and Roberts? No. As I have said before, they would have been confirmed anyway. And if we had deployed the nuclear option, we would have gotten all the judges we already got ââ‚” plus Estrada, Kuhl, Saad, and the judges who look like they are getting thrown under the bus now.

I think it's incorrect to say that Alito would have been confirmed without the Gang of 14 Deal, but it did require more than the Gang of 14 Deal. It also required a willingness to enforce that Deal by "going nuclear" if necessary. The Deal is meaningless if it isn't enforced, and if it isn't backed up by a credible prospect of the constitutional/nuclear/Byrd option. The problem now seems to be that the Deal is not being enforced. Gang Member Senator Daniel Inouye of Hawaii recently opposed cloture on "Hillary's sexgate foe" Brett Kavanaugh without bothering to claim any "extraordinary circumstance." Likewise, some Senators are reluctant to proceed with the Terrence Boyle nomination, even though there's no credible claim of an "extraordinary circumstance." If the Deal isn't enforced, then it ought to be scrapped.

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Posted at 2:31pm on May 29, 2006 Ineffective Leaders Missing Winning Opportunity

By Marshall Manson

Like so many others here and elsewhere, I simply canââ‚â„¢t understand why the pace of nominating and confirming federal appeals court judges has ground to a halt.

From a political standpoint, it simply doesnââ‚â„¢t make any sense. At a time when conservatives are angry at the White House and Congress, pushing the ball forward on judicial nominations is a straightforward way for the President and Senate Republicans to begin to attempt to get things back on track ââ‚“ if thatââ‚â„¢s even possible.

Political watchers have seen over and over the potency of the judicial confirmation issue on the stump. Remember Tom Daschle? Ask Senator Thune about the importance of Democrat obstruction in his victory.

But the lack of effective leadership, both from the White House and in the Senate, means that too few nominations have been made and too few confirmations pushed through. Itââ‚â„¢s time for that to change.

Holding up judicial nominations makes no objective political sense. Even if you hold votes and lose some ââ‚“ and you shouldnââ‚â„¢t ââ‚“ the risk is worth the reward, either by having more good judges on the bench or by reinvigorating a winning issue.

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Posted at 7:39am on May 29, 2006 Kerry Blogs About Wallace and Boyle

By AndrewHyman

On Friday, the Massachusetts Senator said this:

Soon we will be asked to vote on the nominations of Terrance Boyle [sic] to the Fourth Circuit and Mike Wallace to the Fifth Circuit. Boyleââ‚â„¢s nomination is opposed by an unprecedented group of at least 30 law enforcement associations, and Michael Wallaceââ‚â„¢s nomination received the first ABA rating of unanimously ââ‚Å“not qualifiedâ₝ since President Reagan. If we are to stop the ideological court-packing that is taking place under this Administration, if we are to stop this culture of cronyism and protect the integrity and independence of our federal courts, we need to stand strong against these nominees, you need to speak out, write to your senators and your newspapers. Force a debate. But the real answer? We donââ‚â„¢t have enough Democrats in the Senate. Want to end the cronyism? Win the Senate this November.

Regarding the very questionable ABA rating of Michael Wallace, the ABA Journal has an article about it, and hereââ‚â„¢s a snippet:

Thomas J. Meskill, a judge for the New York City-based 2nd U.S. Circuit Court of Appeals, who was confirmed in 1975 after a unanimous "not qualified" ABA rating, says a nomineeââ‚â„¢s fate depends on how much support he or she has in the wake of such a rating. "I think a lot depends on the zeal of the appointing authority, whether itââ‚â„¢s the president or the senator pushing the nomination," says Meskill, who was governor of Connecticut when his nomination was submitted by President Nixon and then resubmitted by President Ford after Nixon resigned. "I had the good fortune of having that support."

As of now, it looks like Wallace will have the same kind of support that Meskill had, especially if the ABA fails to come up with a compelling justification for its unusual rating. Judge Terrence Boyle will continue to have strong support too. The positions of law enforcement groups were well known before the ABA unanimously rated Judge Boyle as ââ‚Å“well qualified,â₝ and before Judge Boyle was approved by the Senate Judiciary Committee. Although some police organizations have criticized Judge Boyle, I donââ‚â„¢t find much merit in those criticisms.

Incidentally, as Hugh Hewitt and others have noted, discussion of this administration's "court packing" is historically illiterate. "Court packing" was Franklin Roosevelt's plan to convince Congress to add additional seats on the Supreme Court, so that Roosevelt could fill them. Senator Kerry should know better.

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Posted at 12:59pm on May 27, 2006 Supreme Court Speculation

By aurel

Consider this a Memorial weekend open thread. Speculate, for example, on this:

The administration also got reenergized on the judicial front, shepherding Brett Kavanaugh through to confirmation to the D.C. Circuit Court of Appeals. If a Supreme Court seat comes open in a month, the administration seems prepared, with (sources say) a short list of well vetted and well qualified conservative candidates.

---Bill Kristol, The Weekly Standard, June 5, 2006 issue.

Remember that Kristol was the first to publicly suggest that it would be Justice O'Connor, not Chief Justice Rehnquist, who would resign in the Summer of 2005.

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Posted at 7:15pm on May 26, 2006 Kavanaugh and Wigenton Confirmed

By Dave II

Today, the Senate confirmed two judges: Brett Kavanaugh to the D.C. Circuit Court of Appeals, and Susan Davis Wigenton to the U.S. District Court for the District of New Jersey. One of them is cause for the most celebration since Alito's confirmation; the other for the most shrugging of shoulders since Milan Smith was confirmed. Let's break it down by nominee judge!

Update Below! 11:45PM

Brett Kavanaugh, nominated July 25, 2003 to the D.C. Circuit, was finally confirmed today just shy of three years. Once one of the longest stalled nominees, he will now be one of the most influential judges. At 41, he is not just young for a Circuit judge, but is now the youngest in the nation. He is universally regarded as brilliant and steadfastly conservative. A two-time graduate of Yale, with clerkships with Judge Stapleton of the Third Circuit and Justice Kennedy at the Supreme Court, Kavanaugh has worked briefly in private practice at Kirkland Ellis, and was part of Ken Starr's Office of Independent Counsel. He has been with the Bush White House from the beginning, first as Associate Counsel, and since 2003 as Staff Secretary.

Kavanaugh joins fellow Bush judges Janice Rogers Brown and Thomas Griffith on the D.C. Circuit, where he now tips the party divide on the court 7-3 in favor of the Republicans, with two vacancies left. Kavanaugh replaces retired Judge Laurence Silberman, a respected Reagan appointee. As everyone knows, the D.C. Circuit is a court with unique power, second only to the Supreme Court in influence, and it must therefore be monitored and guided by the most brilliant, steadfast, and originalist of judges. Its jurisdiction over the lion's share of civil cases involving the federal government makes it uniquely influential over public policy involving the Administration and every federal agency. It also hears the majority of cases involving the War on Terror. With the confirmation of Brett Kavanaugh, it appears that Bush has indeed picked the right man for the job. Kavanaugh should be another William Pryor, another Janice Rogers Brown, and another John Roberts--a great judge who can help straighten out the Art. III branch and return it to its proper and modest role of resolving "cases and controversies."

If Kavanaugh's confirmation was in the tradition of William Pryor and Janice Rogers Brown, the other judge today was confirmed in the tradition of Milan Smith: a judge beloved by Democrats and insiders, but not many others. Susan Davis Wigenton was supposedly nominated by Bush to the District Court in New Jersey at the request of New Jersey Democrats and in exchange for the confirmation of his other District Court nominees and Michael Chagares to the Third Circuit. (That's what the news reports all suggested.) Today, she's been confirmed, but the rest have not. Her fellow nominees, the Republican carrots on the Democratic stick, still await confirmation. This outcome is probably beyond the understanding of any reasonable person . . . but unfortunately not beyond the understanding of anyone who has followed this timid and lazy 109th Congress. The other nominees, Sheridan, Hillman, and Bumb will wait a little while longer and will hopefully get confirmed soon, along with Milan Smith's less-fortunately-connected brethren on the Ninth, Sandra Ikuta and Randy Smith.

Wigenton replaces John Bissell, a Reagan appointee. Unfortunately, her confirmation is probably nothing to be excited about.

UPDATE: MarkN has pointed out to me in the comments that the Senate Executive Calendar includes an unanimous consent agreement for the vote on Renee Bumb to the New Jersey District Court early on June 6th. That makes me feel better!

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Posted at 7:09pm on May 26, 2006 Frist and Human Events on Judicial Nominations

By AndrewHyman

Senate Majority Leader Bill Frist blogged today about the Kavanaugh confirmation, and here's an excerpt:

The Senate has a constitutional duty to provide advice and consent to the President on his nominees ...and then give a fair up-or-down vote on each. I am extremely pleased to report that this morning we did our job and the Senate confirmed the nomination of Brett Kavanaugh to the D.C. Circuit Court and of General Michael Hayden as the Director of the CIA.

Judge Kavanaugh has sterling credentials and broad legal experience as a prosecutor, an appellate lawyer, and a highly trusted advisor to President Bush. I am confident that his service on the nation's most important Circuit Court will be dedicated to the strict interpretation of the law and of our Constitution -- and not to the liberal, activist ideological agenda. Judge Kavanaugh is the 45th circuit judge nominated by President Bush and confirmed by the Senate. President Bush's nominees have the highest confirmation rate of any president since Ronald Reagan.

However, there is some concern about where we go from here, and Human Events is reporting that today "Frist ducked a question about stalled nominees Terrence Boyle and William Haynes, saying he was still waiting for advice from Judiciary Chairman Arlen Specter (R.-Pa.) on how to proceed." That Human Events article includes quotes about the Kavanaugh confirmation from Tony Perkins (Family Research Council), Curt Levey (Committee for Justice), Manuel Miranda (Third Branch Conference), and Jan LaRue (Concerned Women for America).

Regarding the present vacancy rate in the appellate courts, I believe it's 8.9% (16 vacancies out of 179 judgeships). That compares to 4.2% when Jimmy Carter left office and Democrats controlled the Senate (6 vacancies out of 144 judgeships), and that Carter-era vacancy rate was despite creation of 35 new appeals court judgeships while he was president. It really is unfortunate that we're having so much difficulty getting up-or-down votes for nominees who have been approved by the Judiciary Committee, like Terrence Boyle. Why hasn't Boyle gotten a cloture vote so that every Senator will go on record?

UPDATE: Here's a May 23 chart showing the current appeals court vacancies. Hat Tip: RNLA.

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Posted at 5:53pm on May 26, 2006 Statement on Kavanaugh; Fourth Circuit Contenders

By AndrewHyman

President's Statement on Senate Confirmation of Brett Kavanaugh to the U.S. Court of Appeals:

I applaud the Senate's vote to confirm Brett Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit. Brett Kavanaugh is superbly qualified for the Court of Appeals and will be a brilliant, thoughtful, and fair-minded judge. I appreciate his distinguished service in the Executive Branch for the last five years, as Associate Counsel and then Senior Associate Counsel to the President, and since July 2003 in the vital role of Staff Secretary. I congratulate Brett and his family on today's confirmation and thank him for his continued service to the law and our Nation.

Again, congratulations to Mr. Kavanaugh and to his family. Meanwhile, the Virginia Bar Association is floating seven names for Judge Luttig's seat on the Fourth Circuit. They're listed below the fold, along with three others previously mentioned.

D. Arthur Kelsey, a judge on the Virginia Court of Appeals from Suffolk;

Walter DeKalb Kelley Jr., U.S. District Court judge in Norfolk;

State Supreme Court Justice G. Steven Agee;

State Supreme Court Justice Donald W. Lemons;

Thomas E. Albro, a Charlottesville lawyer;

Glen E. Conrad, a U.S. District judge for Virginia's Western District; and

John G. Douglass, a law professor at the University of Richmond.

Also being touted for the Luttig seat are Solicitor General Paul Clement, law professor Caleb Nelson, and U.S. District Judge Henry Hudson.

Hat Tip: How Appealing and BoBo.

UPDATE: The Virginia State Bar has added the following names to the list:

State Circuit Court Judge Patricia Lee West of Virginia Beach;

State Circuit Court Judge Christopher W. Hutton of Hampton;

Court of Appeals of Virginia Judge Elizabeth A. McClanahan;

Attorney E. Duncan Getchell Jr. of Richmond;

Law professor Ronald Rotunda of George Mason University;

U.S. District Judge Rebecca Beach Smith;

U.S. District Judge James R. Spencer; and

U.S. Magistrate Judge Pamela Meade Sargent.

That's enough! No more! I don't want to do any more hyperlinks for this seat! Luttig, look what you have done.

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Posted at 12:23pm on May 26, 2006 Hey, it's not a judge

By krempasky

But in other good news - General Hayden was just confirmed to head the CIA. The vote was 78-15, so despite the gnashing of teeth, sackcloth and ashes - looks like the Democrats generally folded on this one.

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Posted at 11:15am on May 26, 2006 Rejoicing Over Kavanaugh

By Quin

As the journalist who has almost certainly been focusing on and strongly supporting Brett Kavanaugh's nomination long than anybody else (for just one example from almost three full years ago, see here), especially on this site but also in editorials and columns for the Mobile Register and the American Spectator, probably dozens and dozens of times -- and as someone who has taken up the nomination in public and in private with individual senators, personally -- I am, of course, rejoicing today that justice for Kavanaugh has finally been done. He will make an excellent, excellent judge, and I heartily applaud him. There will be time later (very soon, but not in this post) to take up the cause of other nominees, but for now, we all should accept that this is good news indeed, that Frist and Specter did well to push Kavanaugh through, that Frist lived up to his word to get it done by Memorial Day... and that the Constitution is protected by one more judge who will serve a long time while construing the Constitution itself rather than reading into it his own policy preferences.

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Posted at 10:34am on May 26, 2006 Kavanaugh Confirmed

By AndrewHyman

The final vote on the Kavanaugh nomination was 57-36. We congratulate you, Mr. Kavanaugh.

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Posted at 10:14am on May 26, 2006 Final Kavanaugh Vote Likely Today or Tomorrow

By AndrewHyman

The 67-30 cloture vote yesterday means 30 more hours of debate are allowed. All GOP Senators voted for cloture, along with twelve Democrats: Biden (D-DE), Byrd (D-WV), Carper (D-DE), Feinstein (D-CA), Kohl (D-WI), Landrieu (D-LA), Lieberman (D-CT), Lincoln (D-AR), Nelson (D-FL), Nelson (D-NE), Obama (D-IL), and Pryor (D-AR). That includes 12 of the Gang of 14 members. Daniel Inouye evidently perceived "extraordinary circumstances," and voted against cloture. Senators Salazar (a Gang member), Rockefeller, and Conrad didn't vote.

Meanwhile, as we mentioned yesterday, Hugh Hewitt has reported that a new DC Circuit nominee may be announced soon, and her name is Debra Livingston. She would be the second D.C. Circuit nominee in a row who clerked for a judge having a socially liberal record (in her case, Judge J. Edward Lumbert). I don't yet see anything in her writings to indicate a conservative judicial philosophy, and there's some indication to the contrary. She is a vice-Dean at Columbia Law School, and her main selling point seems to be support for the President's anti-terrorism policies.

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Posted at 12:43am on May 26, 2006 White House Nominates Two Judges to the D.C. Court of Appeals

By Dave II

NOT the D.C. Circuit Court of Appeals. We're still waiting for those nominees.

The D.C. Court of Appeals is the equivalent of a state supreme court for the District of Columbia. It is not an Article III court. It consists of nine judges appointed by the President for 15 year terms. Tonight, the President nominated two new judges. Let's break it down by nominee!

Anne Blackburne-Rigsby will replace Judge Frank Schwelb, a Reagan appointee, who is retiring. Blackburne-Rigsby is currently a judge on the D.C. Superior Court, and was apparently appointed to that court by Clinton. (Presidents make appointments from a field of three nominees recommended by a selection board. This is supposed to weed out political favoritism and such.)

Phyllis D. Thompson will replace John Terry, who I imagine is a Reagan or G.H.W. Bush appointee, who is retired. Thompson is an attorney at the law firm of Covington & Burling, and she graduated from George Washington Law School in D.C.

The court currently has only 8 active members, so the appointment of these two judges will restore it to 9 judges and a 5-4 majority of Republican-appointed judges. Blackburne-Rigsby and Thompson will be the third and fourth judges appointed to the court by Bush.

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Posted at 7:42pm on May 25, 2006 Cloture on Kavanaugh 67-30

By AndrewHyman

Lots of speeches will be made before the final vote, and perhaps those speeches will shed some light on the fate of other nominees who have been pending for years.

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Posted at 3:07pm on May 25, 2006 Ikuta Moves to the Floor

By Dave II

Sandra Segal Ikuta was voted unanimously out of the Senate Judiciary Committee today, so she is now eligible for confirmation. I will update with more in a few hours.

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Posted at 2:55pm on May 25, 2006 Livingston Rumored for D.C. Circuit

By AndrewHyman

Hugh Hewitt reports that the nominee may be Debra Livingston.

Hat Tip: Gray Temples.

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Posted at 10:20am on May 25, 2006 No Votes on Nominees

By AndrewHyman

Bloomberg has a report today, titled "Senate May Bypass a Battle Over Bush's Federal Court Nominees," by James Rowley. Here is an excerpt:

Brett Kavanaugh, 41... is scheduled to be confirmed to an appeals court judgeship today. Republicans, in turn, probably will put aside two other controversial nominees, Terrence Boyle and William Haynes II....While Karl Rove, Bush's top political adviser, has told Republican activists and senators the president will nominate another two dozen federal judges, only non-controversial choices probably will be confirmed.

In other words, not only will nominees be denied up-or-down votes, but they'll be denied even cloture votes that put all Senators on record. It's disgraceful, and is much worse than what happened to nominees like Estrada, Kuhl, and the others. At least they got votes. The failure of some GOP Senators to insist that nominees at least get cloture votes is now threatening to diminish the quality of future nominees, and is making it impossible for voters to hold those Senators accountable.

UPDATE: This is especially misguided for nominees who have been approved by the Judiciary Committee. Are Senators afraid that Judge Boyle might get 60 votes? Or afraid that he might get 50 votes? Or just afraid to vote? The so-called ethics violations that Boyle has been accused of are essentially phony, in the sense that his actions were common, inadvertent, and harmless. That's not to say he shouldn't have done better. But, the Judicial Code of Conduct generally states that a "judge should ... comply with the law...." If violating the Code of Conduct is an "ethical violation," then every judge who has ever gotten a parking ticket is unethical. The true ethical lapse is to leave Judge Boyle's nomination languishing without a vote, and without even bringing his nomination to the floor for two seconds of debate.

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Posted at 11:19pm on May 24, 2006 The Prego Constitution for conservatives

By feddie

Is it just me, or does anyone else notice a disturbing trend among conservative politicians: relying on broad provisions of the Constitution in very specific cases without any jurisprudential basis. I am thinking specifically of the Bush Administrationââ‚â„¢s claim that ââ‚Å“the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agentsâ₝ vis-a-vis his Commander-in-Chief power, and Speaker of the House Haster and former Speaker Gingrichââ‚â„¢s contention that the FBIââ‚â„¢s recent raid of Representative Jeffersonââ‚â„¢s congressional office violated the separation of powers doctrine.

Now, it could very well be that a clever constitutional scholar can/will/has concoct(ed) a convincing argument in each of these cases that substantiates/justifies the foregoing positions. But even so, the message being sent by conservative politicians is loud and clear: Weââ‚â„¢re whores too.

Indeed, I believe the day is fast approaching when the majority of conservatives will succumb to (and even embrace) the temptation Judge Bork identified not so long ago: the complete politicization of the judicial branch (and the law).

How sad for the conservative movement. How sad for our constitutional republic.

I am with Justice Scalia: ââ‚Å“I say a pox on both their houses!â₝

(cross-posted at SA)

Update: I made a slight edit to the post to (hopefully) clarify the overall point I was trying to make. Thanks to Rob for his help in this regard.

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Posted at 10:17pm on May 24, 2006 Ikuta to get out of Committee?

By Dave II

On Thursday, the Senate Judiciary Committee will hold an Executive Business Meeting. The only judge on the agenda is Ninth Circuit nominee Sandra Segal Ikuta (nominated February 8, 2006).

Ikuta was scheduled for consideration last week, but for some reason not exactly clear, she did not escape. Maybe she was held over, maybe the Committee was just too busy to get to her. I don't know, but hopefully this time she will be moved to the floor for confirmation. Though she's considered a moderate Republican, there's no doubt she's very well qualified, and as she would replace James Browning, a JFK appointee (!), I think it's safe to say her confirmation would be a net gain for Republicans, if not a complete victory.

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Posted at 9:06pm on May 24, 2006 Updated Judicial Nominations Chart

By feddie

Courtesy of the Senate Republican Policy Committee:

Summary of Judicial Nominations in the 109th Congress

Prepared by the Senate Republican Policy Committee

(Updated as of 5/23/2006)

Overview of Judicial Nominations

50 ââ‚” The number of current vacancies on Article III courts ââ‚” 17 in the courts of appeals, and 33 in the district courts.

25 ââ‚” The number of judicial nominations pending in the Senate, including 11 court of appeals nominees and 14 district court nominees. (One of these nominations is to fill a ââ‚Å“future vacancy.â₝)

27 ââ‚” The number of vacancies for which the President has not submitted a nomination, including 8 vacancies on the courts of appeals and 19 vacancies on the district courts.

22 ââ‚” The number of judicial emergencies in the federal court system.

36 ââ‚” The number of judicial nominations confirmed during the 109th Congress, including 2 Supreme Court Justices, 9 court of appeals judges, 24 district court judges, and 1 Court of International Trade judge.

204 ââ‚” The number of Article III judges who were confirmed in the 107th and 108th Congresses, including 35 court of appeals judges and 169 district court judges.

5.9% ââ‚” Overall vacancy rate in the federal courts. (The vacancy rate for the courts of appeals is 9.5 percent (17/179), and for the district courts, it is 4.9 percent (33/674).)

Court-by-Court Summary

Supreme Court Nominees

Nominee Nomination Status of Nomination

John G. Roberts, Jr. 9/6/2005 CONFIRMED

Samuel A. Alito, Jr. 11/10/2005 CONFIRMED

Court of Appeals Nominees ââ‚” 11 nominees to fill 19 judgeships

Nominee Court Original Nomination Status of Nomination

On Floor

Terrence Boyle 4th Cir. (judicial emergency) 5/9/01 On Executive Calendar

(Reported 6/16/05)

William Myers 9th Cir. (judicial emergency) 5/15/03 On Executive Calendar

(Reported 3/17/05)

N. Randy Smith 9th Cir. (judicial emergency) 12/16/05 On Executive Calendar

(Reported 5/4/06)

Brett Kavanaugh D.C. Cir. 7/25/03 On Executive Calendar

(Reported 5/11)

In Committee ââ‚” Hearing Completed

William Haynes 4th Cir. 9/29/03 In Committee

(Hearing in 108th Congress)

Sandra Ikuta 9th Cir. (judicial emergency) 2/8/06 In Committee

(Hearing 5/2; on mark-up agenda 5/18)

In Committee ââ‚” Awaiting Hearing

Michael Wallace 5th Cir. (judicial emergency) 2/8/06 In Committee

Bobby E. Shepherd 8th Circuit 5/18/06 In Committee

Jerome Holmes 10th Cir. 5/4/06 In Committee

Neil Gorsuch 10th Cir. 5/10/06 In Committee

Kimberly Ann Moore Federal Circuit 5/18/06 In Committee

Vacancies without Presidential Nominations

(awaiting nominee) 3rd Cir. (judicial emergency) Vacant since 1/31/06

(awaiting nominee) 3rd Cir. (judicial emergency) Vacant since 7/9/05

(awaiting nominee) 4th Cir. (judicial emergency) Vacant since 8/31/00

(awaiting nominee) 4th Cir. (judicial emergency) Vacant since 5/11/06

(awaiting nominee) 6th Cir. (judicial emergency) Vacant since 1/1/00

(awaiting nominee) 6th Cir. (judicial emergency) Vacant since 1/25/06

(awaiting nominee) D.C. Cir. Vacant since 11/3/05

(awaiting nominee) D.C. Cir. Vacant since 9/29/05

Confirmed Nominations

Michael A. Chagares 3rd Cir. 1/25/06 CONFIRMED

Priscilla Owen 5th Cir. 5/9/01 CONFIRMED

Richard Griffin 6th Cir. 6/26/02 CONFIRMED

David McKeague 6th Cir. 11/8/01 CONFIRMED

Susan Nielson 6th Cir. 11/8/01 CONFIRMED

Milan Smith 9th Cir. 2/14/06 CONFIRMED

William Pryor 11th Cir. 4/9/03 CONFIRMED

Thomas Griffith D.C. Cir. 5/10/04 CONFIRMED

Janice Rogers Brown D.C. Cir. 7/25/03 CONFIRMED

U.S. Court of International Trade

Nominee Nomination Status of Nomination

Leo Maury Gordon 11/10/2005 CONFIRMED

District Court Nominees ââ‚” 14 nominees to fill 33 judgeships

Nominee Court Original Nomination Status of Nomination

On Floor

Renee M. Bumb D. New Jersey 1/25/06 On Executive Calendar

(Reported 5/4)

Noel L. Hillman D. New Jersey 1/25/06 On Executive Calendar

(Reported 5/4)

Susan D. Wigenton D. New Jersey 1/25/06 On Executive Calendar

(Reported 5/4)

Peter Sheridan D. New Jersey (judicial emergency) 11/5/03 On Executive Calendar

(Reported 5/4)

Thomas Ludington E.D. Michigan (judicial emergency) 9/12/02 On Executive Calendar

(Reported 5/11)

Sean Cox E.D. Michigan (judicial emergency) 9/10/04 On Executive Calendar

(Reported 5/11)

In Committee ââ‚” Hearing Completed

None

In Committee ââ‚” Awaiting Hearing

Andrew J. Guilford C.D. California 1/25/06 In Committee

(Hearing scheduled 5/24)

Frank Whitney W.D. North Carolina 2/14/06 In Committee

(Hearing scheduled 5/24)

Philip Gutierrez C.D. California 4/24/06 In Committee

Valerie Baker C.D. California 5/4/06 In Committee

Vanessa L Bryant D. Connecticut 1/25/06 In Committee

Daniel Porter Jordan S.D. Mississippi (judicial emergency) 4/24/06 In Committee

Gustavo Antonio Gelpi D. Puerto Rico 4/24/06 In Committee

Francisco A. Besosa D. Puerto Rico 5/16/06 In Committee

Vacancies without Presidential Nominations

(awaiting nominee) C.D. California Vacant since 12/8/04

(awaiting nominee) S.D. California Vacant since 9/14/04

(awaiting nominee) E.D. Michigan (judicial emergency) Vacant since 9/29/00

(awaiting nominee) W.D. Michigan (judicial emergency) Vacant since 9/1/05

(awaiting nominee) W.D. Michigan (judicial emergency) Vacant since 1/1/06

(awaiting nominee) W.D. Michigan (judicial emergency) Vacant since 6/13/05

(awaiting nominee) S.D. Mississippi (judicial emergency) Vacant since 2/4/06

(awaiting nominee) S.D. Mississippi (judicial emergency) Vacant since 3/20/06

(awaiting nominee) E.D. New York Vacant since 3/1/06

(awaiting nominee) N.D. New York Vacant since 3/13/06

(awaiting nominee) E.D. North Carolina Vacant since 12/31/05

(awaiting nominee) W.D. North Carolina Vacant since 12/1/05

(awaiting nominee) M.D. North Carolina Vacant since 12/31/05

(awaiting nominee) M.D. North Carolina Vacant since 4/3/06

(awaiting nominee) N.D. Ohio Vacant since 2/14/06

(awaiting nominee) N.D. Oklahoma Vacant since 3/14/05

(awaiting nominee) W.D. Pennsylvania Vacant since 1/31/04

(awaiting nominee) E.D. Virginia Vacant since 12/31/05

(awaiting nominee) W.D. Wash. (judicial emergency) Vacant since 3/9/05

Confirmed Nominations

Michael R. Barrett S.D. Ohio 12/16/05 CONFIRMED

Timothy C. Batten N.D. Georgia 9/28/05 CONFIRMED

Joseph F. Bianco E.D. New York 7/28/05 CONFIRMED

Tim Burgess D. Alaska 7/28/05 CONFIRMED

Brian M. Cogan E.D. New York 1/25/06 CONFIRMED

Robert Conrad W.D. North Carolina 4/28/03 CONFIRMED

Paul Crotty S.D. New York 9/7/04 CONFIRMED

Aida Delgado-Colon D. Puerto Rico 10/25/05 CONFIRMED

Jim Dever E.D. North Carolina 5/22/02 CONFIRMED

Krisi DuBose S.D. Alabama 9/28/05 CONFIRMED

Thomas M. Golden E.D. Penn. (judicial emergency) 1/25/06 CONFIRMED

Thomas E. Johnston SD West Virginia 9/28/05 CONFIRMED

Virginia Kendall N.D. Illinois 9/28/05 CONFIRMED

Stephen G. Larson C.D. California 12/15/05 CONFIRMED

Henry Mattice, Jr. E.D. Tennessee 7/28/05 CONFIRMED

Gray H. Miller S.D. Texas 1/25/06 CONFIRMED

Brian Sandoval D. Nevada 3/1/05 CONFIRMED

Patrick J. Schiltz D. Minnesota 12/14/05 CONFIRMED

J. Michael Seabright D. Hawaii 9/15/04 CONFIRMED

John Smoak N.D. Florida 6/8/05 CONFIRMED

Gregory Van Tatenhove E.D. Kentucky 9/13/05 CONFIRMED

Eric Vitaliano E.D. New York 10/6/05 CONFIRMED

Keith Watkins M.D. Alabama 9/28/05 CONFIRMED

Jack Zouhary N.D. Ohio 12/14/05 CONFIRMED

Compilation by the Senate Republican Policy Committee based on data from the Judicial Conference, the Senate Judiciary Committee, and the Department of Justice Office of Legal Policy.

(LvKayDaly)

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Posted at 1:51pm on May 24, 2006 "Where Are the Nominees?"

By feddie

Professor Jonathan Adler asks a question that I've been wondering about myself: "There have been several hints that the administration plans to put forward a large slate of judicial nominees, but where are they?"

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Posted at 1:12pm on May 24, 2006 Levey, Frist, and Melber on Judicial Nominations

By AndrewHyman

Curt Levey has just written an article titled "Judged Guilty by Association," for Real Clear Politics, raising an interesting point:

What do Ken Starr, Jesse Helms, the Defense Department under Donald Rumsfeld, and the mining industry have in common? They are people and institutions liberals love to hate. They are also the current and former employers of the four U.S. Courts of Appeal nominees subject to Democratic obstruction in recent months: Brett Kavanaugh, Terrence Boyle, William Haynes, and William Myers respectively. This connection is no coincidence. Senate Democrats and their allies on the Left have plenty of pent up rage against the likes of Starr, Rumsfeld, and Helms, but little opportunity to inflict pain on them. Judicial nominees, on the other hand, provide easy targets for sublimated anger. The result is a farce that denies an up or down vote to exceptionally qualified nominees, while demeaning the judicial confirmation process and setting a dangerous precedent.

â₦.

It does not have to be this way. Consider Bill Clinton's nominations of Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. Ginsburg had been general counsel of the American Civil Liberties Union, and Breyer once worked for Sen. Ted Kennedy. Republicans love to hate the ACLU and Sen. Kennedy - and they must have been tempted to pay the Democrats back for the way Robert Bork and Clarence Thomas had been treated - but they resisted playing the guilt by association card....[A]n up or down vote on Boyle, Haynes, Myers, and Kavanaugh would be an important step towards restoring the integrity and effectiveness of the confirmation process.

Meanwhile, the Senate Majority Leader, Dr. Bill Frist, has posted a blog entry about one of the nominees that Levey mentioned:

Simply put, Brett Kavanaugh ââ‚“ like all nominees ââ‚“ deserves an up or down vote. Heââ‚â„¢s waited long enough. I am committed to ensuring he gets the fair up or down vote he deserves before Memorial Day.

Finally, for now, Ari Melber has posted a retrospective piece about the Gang of 14 Deal, which was signed a year ago yesterday. For those who follow such things, yesterday was also the five-year anniversary of Jim Jeffords' departure from the GOP. Anyway, Melber's piece about the Deal is posted at the blog of Arianna Huffington, who describes herself as a "former right-winger who has evolved into a compassionate and progressive populist." Way to describe oneself while sliming one's opponents! Melber's piece conforms to that theme:

[T]he extremism and partisanship was only coming from one side. Republicans were trying to destroy a sacrosanct rule in American government. Democrats were trying to protect the status quo. The Gang of 14 popped up in between those positions, not in the middle of a political spectrum, but in between the status quo and a Right Wing power grab.

Nowhere in Melber's piece is there any glimmer of recognition that the Democrats in the Senate had been employing the filibuster rules in an unprecedented manner. There was thus a conflict between the Senate's writen rules on the one hand, and Senate precedent and tradition on the other hand. It's unfortunate to see so many words spent by Melber on distorting what happened a year ago.

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Posted at 12:51am on May 24, 2006 District Court Nominees Get Hearing on Wednesday

By Dave II

Turns out my tipster last night was right. The Senate Judiciary Committee is scheduled to hold a hearing on District Court nominees Andrew Guilford and Frank Whitney at 2PM on Wednesday. Although the agenda lists other witnesses "TBA," that likely means Senators or other witnesses on behalf of Guilford and Whitney, not other judges. Fifth Circuit nominee Michael Brunson Wallace is being skipped over again for a hearing. It is clear at this point that getting him confirmed will mean a tremendous fight.

More about Guilford and Whitney below the fold ...

Andrew Guilford , 55, was nominated on January 25, 2006 to fill a vacancy left by Dickran Tevrizian , a Reagan appointee, on the United States District Court for the Central District of California. Guilford is a graduate of UCLA Law and, since 1975, has worked at Sheppard Mullin in California.

Frank Whitney , 46, was nominated on February 14, 2006 to fill a vacancy left by H. Brent McKnight , a previous Bush appointee, on the United States District Court for the Western District of North Carolina. Whitney is currently the U.S. Attorney for the Eastern District of North Carolina. He graduated from University of North Carolina at Chapel Hill, and has worked in private practice, including Kilpratrick Stockton, and an earlier stint at the U.S. Attorneys Office during both Bush Administrations and the Clinton Administration. Since 1982, Whitney has been in the Army Reserves. North Carolina currently has five District vacancies, so his help on the bench is sorely needed.

Guilford has been rated unanimously "Well Qualified," but Whitney has only been rated unanimously "Qualified." This despite Whitney having the more diverse experience, though Guilford has been practicing a few years longer than Whitney. To me, this smacks of ABA prejudice against government and public service. I may be wrong, but that's the only difference between the two that just jumps out.

The White House did not nominate any new judges tonight. The Senate Judiciary Committee will hold an Executive Business Meeting on Thursday, though the agenda is not yet out. Ninth Circuit nominee Sandra Ikuta is likely to be part of it though.

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Posted at 10:56pm on May 23, 2006 Did You Ever Have To Make Up Your Mind?

By AndrewHyman

The Hill reports:

Sen. Lindsey Graham (R-S.C.), who sits on the Judiciary Committee and is close to Sen. John McCain (R-Ariz.), is blocking a nominee to the federal bench whom Grahamââ‚â„¢s friend opposes, Senate sources sayâ₦.Graham yesterday denied placing a secret hold on Haynes, but he declined to say whether he supports Haynesââ‚â„¢s nomination. Senate sources say, however, that Graham is the reason Haynes has remained bottled up in the Judiciary Committee. ââ‚Å“Iââ‚â„¢m going to take them one at a time,â₝ Graham said, referring to the slow procession of judicial nominees through the chamberâ₦.Graham has had plenty of opportunity to mull Haynesââ‚â„¢s nomination. Its two and a half years in the Senate make it one of the longest-stalled nominations.

Meanwhile, Kate Oââ‚â„¢Beirne has a summary of the current nomination logjam in National Review (via the Committee for Justice). Her piece mentions --- you guessed it --- Senator Graham:

Boyleââ‚â„¢s nomination was finally approved by the Judiciary Committee on a party-line vote last year, but members of the Gang of 14 are now declining to support him, owing to ethics charges recently raised by a left-wing outfit. In early May, the Center for Investigative Reporting claimed that Boyle has ruled in nine cases involving companies whose stock he owned. Harry Reid called this report ââ‚Å“the clincher,â₝ and it was trumpeted in the online magazine Salon. Democratic members of the Gang of 14 demanded another hearing for Judge Boyle while Sen. Lindsay Graham, a GOP member of the gang, refused to say whether Boyle still had his support.

Judge Boyle is in an awkward position, because it would arguably violate ethical standards for him to respond to media inquiries. Texas Supreme Court Justice Nathan Hecht was reprimanded today for just such conduct:

[T]he efforts of Justice Hecht in promoting his friend's candidacy by responding to media inquiries and assisting the White House in its efforts to convince powerful special interest groups to support her candidacy, constituted an improper use of his office and position to promote Miers' private interest.

Hat Tip: How Appealing.

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Posted at 10:45pm on May 23, 2006 Mr. President, Nominate this man

By aurel

Paul D. Clement (40), the 43rd Solicitor General of the United States, is one of the most accomplished judicial conservatives of his generation. A fine jurist with a stellar resume, a brilliant and respected advocate --who has argued over 30 cases before the Court--, a man of undoubted integrity and a genial demeanor. Given his past ties to Ken Starr, John Ashcroft and of course George W. Bush, Clement ought to be radio-active to Democrats, but instead he is respected on both sides of the aisle -- and liked by the camera. According to Legal Affairs, Clement seems like "one of the few members of the Bush Administration who has left each position he has filled more respected by Democrats than when he started."

His resume is extremely impressive, and reassuring for judicial conservatives: a summa cum laude graduate of Georgetown, who holds a master's degree in economics from Cambridge University, a magna cum laude graduate of Harvard Law School, where he was Supreme Court editor of the law review. He clerked for Judge Silberman of the D.C. Circuit and Justice Scalia, spent some time in private practice and as general counsel for a U.S. Senate subcommittee before joining the Bush Administration in the office of Solicitor General in 2001.

Even now, at the age of 40, his would be not an implausible candidacy for the Supreme Court. But, like it or not, if there is to be a third vacancy, for political reasons Bush is very unlikely to pick his third white male in a row. With a few years of judicial experience behind him, however, Clement would be a compelling, indeed unstoppable, nominee in the next Republican administration (the ideal candidate, perhaps, to succeed Justice Scalia when that sad time comes?).

In sum, if the President really cares about the courts, getting his trusted Solicitor General on the federal bench should be one of his highest priorities.

It's not as easy as it may seem. Time is running out, the majority in the Senate is under threat, and after the mid-term elections, the Democrats will use any tactic available to stop Clement (as Republicans ran the clock on the nomination of Elena Kagen, now dean of the Harvard Law School, to the D.C. Circuit). Clement must not only be on the federal bench before Bush leaves office, but to accomplish this goal, he must be nominated at the earliest opportunity.

A simple process of elimination tells us to which seat. Clement is a Wisconsin-native. But the Seventh Circuit has no openings and both of Wisconsin's senators are liberal Democrats. Once Brett Kavanaugh is confirmed the only openings on the D.C. Circuit are the 11th and 12th seats that Republicans have argued are "traditionally" not filled because the D.C. Circuit's case load isn't heavy enough. Nominating Clement for one of those "extra" seats would immediately give the Democrats a very potent argument to derail the nomination, indeed arguably creating "extraordinary circumstances".

And so Mike Luttig's unexpected resignation comes to the rescue. Luttig's former seat on the Fourth Circuit is a "Virginian" seat. Clement, helpfully, is a resident of Virginia. Both of Viriginia's Senators are Republicans--one is running for President, the other is a member of the Gang of Fourteen. Two other nominations to the Fourth Circuit have run into difficulties. Luttig's departure is Clement's golden opportunity.

Mr. President, please nominate your loyal Solicitor General to the Fourth Circuit. Do so without delay. It may be his only chance.

PS: And wouldn't it be nice, Mr. President, to nominate Miguel Estrada as Clement's replacement as Solicitor General? The Democrats wouldn't filibuster him for that position, so you could appoint the first Hispanic SG as you earlier appointed the first Hispanic White House Counsel and Attorney General.

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Posted at 7:28pm on May 23, 2006 "Reid: No Filibuster on Kavanaugh"

By feddie

Ed Whelan over at NRO's Bench Memos has the details:

In his comments, Reid claimed that majority leader Frist could have done things ââ‚Å“the easy wayâ₝ and gotten a time agreement, but that Frist instead wanted to ââ‚Å“appeal to the right wing.â₝ But Reidââ‚â„¢s own comments indicate that he wouldnââ‚â„¢t have agreed to a vote until after the Memorial Day recess, and itââ‚â„¢s far from clear that Reid, who doesnââ‚â„¢t have much clout with his fellow Democrats, would even have been able to obtain their consent to that schedule. In short, Senate Democrats made it necessary for Frist to file a cloture petition in order to enable a vote on Kavanaugh.

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Posted at 12:40pm on May 23, 2006 Salon on Boyle, and The Hill on Wallace

By AndrewHyman

As you may recall, Will Evans of Salon.com has been writing about alleged ethical improprieties by Fourth Circuit nominee Terrence Boyle. We previously discussed this whole issue, here. Now, Evans is out with another piece. Here's the part that I find most interesting:

Boyle .... has reportedly issued his own explanation of the ethics conflicts to the Department of Justice....According to the Washington publication CongressDaily on May 11, Republican Sen. Susan Collins of Maine said, "I have serious concerns about the conflict-of-interest charges," adding that she had requested more information from the White House. A spokesman for Collins said that as of last Friday, Collins had not received any further information.

Hopefully, the White House will be communicating with Senator Collins.

In other developments, The Hill has an article about the ABA rating of Fifth Circuit nominee Michael Wallace. Confirmthem previously mentioned that controversy here.

UPDATE: Ed Whelan is all over the latest Salon piece.

Hat Tip: BoBo for The Hill article.

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Posted at 8:26pm on May 22, 2006 Cloture Filed on Brett Kavanaugh

By Dave II

Senate Majority Leader Bill Frist just now filed a cloture motion on the nomination of D.C. Circuit nominee Brett Kavanaugh. Frist said he doesn't know exactly when the up-or-down vote on Kavanaugh will occur just yet, but he hopes to work out an agreement with Reid. The cloture motion ensures that a vote will occur this week even if Reid doesn't agree to anything.

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Posted at 7:58pm on May 22, 2006 Programming Note

By AndrewHyman

I'd also like to welcome another new blogger, who has occasionally commented here in the past. Aurel is a corporate lawyer at a large New York firm, a graduate of Harvard Law School and Oxford University, and is also a member of the Federalist Society. Welcome.

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Posted at 11:02am on May 22, 2006 Not Much News This Morning

By AndrewHyman

According to the Washington Post:

This weekâ₦.The full Senate will take up Bush's controversial nominee for the U.S. Court of Appeals for the D.C. Circuit, Brett M. Kavanaughâ₦.

UPDATE: C-Span has just posted a television program about two people on our list of possible SCOTUS prospects: Judge Edith Brown Clement, and Solicitor General Paul Clement. The program looks at the SG's life and career, followed by a commencement address by Judge Edith Clement at Ave Maria Law School in Michigan.

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Posted at 1:42am on May 22, 2006 Programming Note

By AndrewHyman

Welcome to a new blogger, Dave II. You may have already come across his Judge Report over at Redstate. Dave is from the Houston area, and he recently graduated from law school at Catholic University. We want Dave to speak freely, without worrying that his words will come back to haunt him someday, so we have agreed with the idea that what happens at confirmthem stays at confirmthem.

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Posted at 11:57pm on May 21, 2006 Ruling on Narrow Grounds

By Carol Platt Liebau

This piece from the AP discusses Chief Justice Roberts' speech to Georgetown Law School's graduating class. In a nutshell, he noted that consensus among the justices was easier to obtain -- and the rule of law was best served -- if cases are decided on the narrowest possible grounds (the narrowest grounds that actually address the questions presented).

As all of us here noted during his confirmation, it sounds like the Chief Justice understands the difference between adjudicating and legislating.

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Posted at 8:02pm on May 21, 2006 Dinh on Giving D.C. Representation in Congress

By AndrewHyman

Viet Dinh has been widely considered as a potential circuit court nominee, or even a Supreme Court nominee. Eugene Volokh has a recent post discussing Dinh's role in the ongoing efforts to give the residents of Washington D.C. voting representation in Congress. In fact, legislation is now pending in Congress to accomplish this feat without a constitutional amendment, and Dinh has written in support of the idea. He's provided a very good writing sample, although Dinh doesn't quote one of the critical provisions in the U.S. Constitution that (to my mind) defeats this proposal. The Fourteenth Amendment says:

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.

I don't see how this could be consistent with Congress choosing whether or not the District of Columbia should have a representative in Congress. What do you think? Did Dinh purposely not mention this constitutional provision, because he knew it's a killer? Note that Dinh did vaguely allude to this constitutional provision at footnote 78 of his brief (while citing this case). Suppose the Constitution didn't contain any provision like this; would Congress have power to bestow upon D.C. voters as much influence in the House of Representatives as California or Texas has? I don't think so, and therefore it's hard to see where Congress gets the power Dinh claims it has.

If Congress wants to give residents of Washington D.C. representation in Congress, without going to the trouble of amending the Constitution, then Congress can simply return some land to Maryland and/or Virginia, or grant full statehood to D.C.

UPDATE: The House Committee on Government Reform has voted 29-4 in favor of the bill to give Washington D.C. voting representation in the House of Representatives.

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Posted at 3:24am on May 21, 2006 Viguerie on the Judiciary

By AndrewHyman

Richard A. Viguerie has an opinion piece in Sunday's Washington Post, and he touches upon the issue of judicial nominations:

[S]ix of nine previous Republican appointees to the Supreme Court turned out to be liberals or swing voters. And none of Bush's Supreme Court nominees had a significant paper trail as a conservative legal scholar. That sends a message to conservative lawyers and judges: If you want to be on the Supreme Court someday, hide your conservatismâ₦.[I]n the Senate, Republicans have let key judicial nominees languish, even when Bush has nominated conservatives for lower courts. Would a strong Senate leader such as LBJ have let his party's nominees fail for lack of a floor vote?

Even Fortas got a cloture vote, for Peteââ‚â„¢s sake. Let's hope that the full Senate votes on all of the pending nominees.

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Posted at 7:52pm on May 20, 2006 Four in Running for Luttig Seat

By AndrewHyman

Four people are reportedly being considered to succeed Judge Luttig (so far):

U.S. Sens. George Allen and John Warner are angling to have a vacancy on the 4th U.S. Circuit Court of Appeals filled by one of the commonwealth's own, but it does not yet appear as if any Southwest Virginians are in the mix. According to state bar associations, four names had been floated for the spot by Friday: U.S. District Judge Walter Kelley of Norfolk, U.S. District Judge Henry Hudson of Richmond, University of Richmond law professor John Douglass and Charlottesville lawyer Tom Albro.

How about Caleb Nelson? Meanwhile, Brett Kavanaugh reportedly remains on track for confirmation next week to the DC Circuit:

Brett Kavanaugh survived the former KGB torture technique of forcing nominees to listen to the unrelated, incoherent ramblings of ... Dem Senators, and will likely be confirmed.

At least Senator Reid isn't on the Judiciary Committee.

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Posted at 2:42am on May 20, 2006 It's Saturday, and We're Still Blogging About Judicial Nominations

By AndrewHyman

On Thursday, Bruce Hausknecht posted an article titled Poor Judgment? Here's a piece:

If Republicans manage to lose control of the Senate, whatever is left of the hope for judges in the mold of Scalia and Thomas will become a distant memory. So it's crucial that you call your senators and encourage them to push now for the confirmation of pending nominees, especially the four holdovers from last year. While you're at it, let the president know that you haven't forgotten his campaign promise on judges, and that if he'll nominate them, you'll help him fight for the good ones who still hold the Constitution in awe. There's too much at stake to do anything less. Write your two U.S. senators and urge them to support the confirmation of President Bush's appeals-court nominees Terrence Boyle, William Myers, William "Jim" Haynes and Brett Kavanaugh.

Senators' contact info is linked at the right side of our confirmthem home page, under the "Action" category. Would it kill the Senate to at least have a cloture vote for someone like Judge Boyle?

Meanwhile, Harold C. Hutchison says:

[T]he White House might be a little displeased with the base. That displeasure is probably not helped when there is still constant sniping at Miers from ConfirmThem.com.

Unfortunately, we bloggers at confirmthem cannot control some of the harsh things that a few of our commenters say. Anyone can comment here, and the commenters' views often don't reflect the views of anyone but themselves.

On a somber note, I also want to mention the passing of a very highly regarded judge, Edward Becker of the Third Circuit. A while back, we discussed a C-Span interview he gave:

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.

It is most unfortunate, and unfortunate as well that this fine judge has left the scene.

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Posted at 3:41pm on May 19, 2006 What Do Judge Boyle and 63 U.S. Senators Have in Common?

By AndrewHyman

Harry Reid has called them all racists. Here's today's baseless slur against the 63 Senators, and here's this month's baseless slur against Judge Boyle. This is the same Harry Reid, of course, who has called Alan Greenspan a ââ‚Å“hack,â₝ called Clarence Thomas an ââ‚Å“embarassment,â₝ accused Judge Janice Rogers Brown of wanting to go back to the days of the ââ‚Å“Civil War,â₝ and called the President of the United States a ââ‚Å“loser.â₝

Hat Tip: Patterico.

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Posted at 2:38pm on May 19, 2006 Shepherd Stories

By AndrewHyman

Further to this post, some news articles about Bobby E. Shepherd are in the comments.

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Posted at 1:51pm on May 19, 2006 Try again

By Quin

Try this again. Also, there is this story.

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Posted at 1:46pm on May 19, 2006 Minor Stuff on Shepherd

By Quin

Here's one story where Morris Arnold and company reversed Magistrate Judge Shepherd, for what it's worth. Still trying to find out more about the nominee....

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Posted at 12:58pm on May 19, 2006 Bush, Tapscott, and Warner on Judicial Nominations

By AndrewHyman

President Bush spoke on Wednesday about this subject:

Ours is a political party that understands we need to have people on the bench who understand the difference between legislating and being a good judge. (Applause.) I was proud to nominate Chief Justice John Roberts and Justice Sam Alito, and I want to thank the United States Senate for passing -- for confirming these two good men. (Applause.)

I've also successfully appointed 44 Courts of Appeal judges, which is about 25 percent of all the federal Appeal Court judges in our nation. I'm going to continue working with members of the Senate to make sure my judges get a timely hearing, and I'm going to continue nominating good, conservative judges who will interpret the law and not legislate from the bench. (Applause.)

Go W. Yesterday, Mark Tapscott yawned:

Supreme Court appointments are important but they aren't the most important consideration in these matters. Elevating the Court to such prominence is a sort of conservative echo of the liberals' dependance upon the federal judiciary to impose decisions that ought instead be made in Congress.

That's right, just let the left do what they want with the judiciary, because to stop them would be to play their game. Geesh.

Also, yesterday, the Washington Post had an article titled, "Bush Moves To Name Appellate Judge in Va." Senator Warner wants to make sure the seat goes to a Virginian. How about Caleb Nelson?

Hat Tip: RNLA Blog for the Bush speech.

UPDATE: Note that Carol recently quoted the full Tapscott statement.

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Posted at 1:30am on May 19, 2006 Many Thanks

By Carol Platt Liebau

In the comments to this post below, Quin quite rightly notes that he -- and other bloggers at ConfirmThem -- were very fair to me in the unhappy days when we found ourselves at odds over the proper course for the Miers nomination. I very much appreciated the way I was treated by him and other bloggers on this site, and to quote Jane Austen, "In future, I hope we shall be always of one mind.''

In fairness, I'd just point out that in an update to this post, Hugh Hewitt notes that the remarks to which Quin takes exception were intended to tweak -- not ConfirmThem bloggers -- but rather some of the commenters on the site.

One more point: However much all of us here -- and elsewhere in the conservative movement -- may disagree on some matters, it's worth remembering that we certainly disagree much more profoundly with the left. I'd trust my most vociferous and insulting anti-Miers critics to run the country and pick judges infinitely more than I'd trust the lefties in America. Ultimately, we're all on the same team.

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Posted at 10:56pm on May 18, 2006 Two New Appeals Court Nominees

By AndrewHyman

President Bush made a couple appeals court nominations today. No surprise that Kimberly Ann Moore was nominated to the Federal Circuit. This has been expected since March. Here's her George Mason University faculty bio. The Federal Circuit has jurisdiction to decide specialized types of cases, especially patent cases.

Also nominated today was Bobby E. Shepherd for the Eighth Circuit. Shepherd has been a Magistrate Judge in Arkansas since 1993, but I don't know much more than that.

Hat Tip to Dave and Bobo, for this nomination info. You may also be interested to know that the full Senate quietly debated and approved Boyle this week. Yup. More below the fold.

S. Res. 478

Whereas charge-coupled device (commonly referred to as "CCD'') technology revolutionized imaging equipment and has significantly affected society by improving quality of life and the technological capabilities of everyday tools and equipment;

Whereas the CCD is widely used in technology, including digital cameras, video recorders, space-based telescopes, satellites, and medical imaging devices;

Whereas Willard S. Boyle of Halifax, Nova Scotia, and George E. Smith of New Barnegat, New Jersey, have advanced society through their development of the CCD while working at the Murray Hill, New Jersey, Bell Labs site in 1969; and

Whereas Mr. Boyle and Mr. Smith have been awarded the 2006 Charles Stark Draper Prize by the National Academy of Engineering and inducted into the Nation Inventors Hall of Fame for their invention; Now, therefore, be it

Resolved, That the Senate commemorates the development of the charge-coupled device.

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Posted at 8:04pm on May 18, 2006 A Brake, Not an Accelerator

By Carol Platt Liebau

Over at Tapscott's Copy Desk, Mark has been pounding away at the President and congressional Republicans, seeming not-at-all upset about the prospect of GOP losses in November if it ultimately restores a more conservative cast to Congress as a whole, and even discounting the potential impact on the Supreme Court.

Mark Tapscott has recently become a friend. Upon meeting him, it's obvious that he's a wonderful guy, and incredibly smart, too. But here, I must respectfully disagree.

On the topic of the relevance of the upcoming elections to the Supreme Court, he's written:

Adding a third Bush appointee of the same quality as Roberts/Alito would probably insure a working conservative majority for a generation.

Second, Supreme Court appointments are important but they aren't the most important consideration in these matters. Elevating the Court to such prominence is a sort of conservative echo of the liberals dependance upon the federal judiciary to impose decisions that ought instead be made in Congress.

But here's the thing. In the wake of the Miers debacle, is the President more or less willing to make the Gonzalez nomination with Republicans in the majority, or with Democrats there? If conservatives did want to object to a Supreme Court nomination, they're obviously in a stronger position to do so with the GOP in control. If there's anyone who cares even less about what conservatives think than John McCain, it's got to be Harry Reid.

In fact, putting the Democrats in the majority may actually facilitate the nomination and ultimate confirmation of AG Gonzalez. As a rumored "moderate" and a qualified jurist of Latino ethnicity (which means Dems would be afraid of losing Latino votes through opposing him), the nomination could be reasonably justified as the most likely to get through a Judiciary Committee chaired by Patrick Leahy.

Second, Mark faults other conservative commentators for "elevating" the importance of the Supreme Court to the point where they become an "echo of the liberals dependance upon the federal judiciary to impose decisions that ought instead be made in Congress." Let's be clear. It's wrong to use the Supreme Court as a way of contravening or avoiding the electoral process. The problem is that liberals have done it, still do it, and will continue to do it.

Adherents of judicial restraint are needed on the Court, not to enact conservative policies, but to stop the egregious judicial activism that too often rises from places like the Ninth Circuit. Failing to secure the right majority on the Court could eventually mean that people like Stephen Reinhardt are effectively drafting federal law on matters like the right to die, abortion and other similar matters (if a non-conservative majority rubber stamps his reasoning in these controversial cases, or refuses to take them up).

In short, a solid Court is needed -- not as an accelerator for the implementation of judge-made conservative law, but as a brake on the left's attempts to impose judge-made liberal laws.

Cross posted at CarolLiebau.blogspot.com.

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Posted at 4:53pm on May 18, 2006 Hugh, Sc*** It

By Quin

Having finally gotten around to reading Hewitt's rant, I've gotta say this: Most of us who posted here were far more civil towards Miers (and I was pretty harsh on her) than Hewitt is here towards Miers's critics. His name-calling is contemptible, as in here: Not that it matters much to the Tapscottian Caucus and their even more radical Bainbridist revos. "Off with their heads," and "verdict first, trial later" are the chants coming from the anti-GOP virtual mobs on the right. (Well, not quite. They only want an election night drubbing to remind the Republican electeds of their SACRED DUTY to stop Alaskan bridge spending.)

These are the days of the conservative Jacobites, demanding a return to Reagan's principles

And here: face-painted-blue Bainbridgists are assembling. And this is a total non sequitur: This is of a piece with the grumblers elsewhere. Hardly a post goes by at ConfirmThem.com where someone doesn't denounce the president for the Miers nomination, though every time they do they buy again into the left's vision of the Court and its members as high priests with vast duties undoable except by the select. I am buying into no such thing. Instead, by opposing Miers, I was opposing somebody who showed no inclination or ability to stand athwart the leftist judges who act like high priests, etc.

Memo to Hewitt: Get over it, fella. We were right, and we won, and the country is far better for it. Leave it alone. Stop hurling insults.

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Posted at 4:10pm on May 18, 2006 Boyle on Free Speech of Police and Other Public Employees

By AndrewHyman

The Richmond Times-Dispatch has an article today stating:

U.S. District Judge Terrence W. Boyle of North Carolina, nominated for the 4th Circuit, has come under fire from the former head of the Virginia Fraternal order of Police. Dan Blake, past state president of the Virginia FOP, wrote Warner Monday that he could not support Bush's nomination of Boyle, and that he was basing his views on court decisions concerning law enforcement officers in North Carolina.

Indeed, some law enforcement groups have been objecting for years to the Boyle nomination, and those objections were taken very seriously (as they should have been) by GOP Senators before they unanimously voted Judge Boyle out of Committee last year. The primary issue here is whether Judge Boyle has improperly sided with public employers who fire their employees for things the employees say after work. From what I've seen, however, Judge Boyle does not have a bad attitude in this regard.

Off-the-job free speech by public employees continues to be a controversial and unsettled area of the law. Just last month, there was a major decision in the Second Circuit on this subject (see article titled "District Court Reversed: Giuliani Was Justified in Firing Public Safety Officials for Racially Offensive Conduct"). As far as Judge Boyle's decisions in this area are concerned, I unfortunately don't have time or resources to fully investigate the matter, but I did do some brief nosing around today. I have not studied the Senate hearing record, because it's not yet available online, nor have I looked up cases cited by Judge Boyle's supporters. But I have looked up cases listed by his detractors.

One of the main cases cited by Boyle's detractors is Edwards v. City of Goldsboro, 981 F.Supp. 406 (E.D.N.C. 1997). That decision was subsequently appealed to the Fourth Circuit (see Edwards v. City of Goldsboro, N.C., 178 F.3d 231 (4th Cir. 1999)). The case involved a police officer who was suspended for teaching an extracurricular class on firearm safety. Lefty senators and lefty groups (along with some police groups) assert that Judge Boyle rejected the police officer's free speech claim because the officer's speech was not on a matter of "public concern." But I looked at Boyle's opinion in the case, and I don't see any mention about whether the firearm safety course involved a matter of "public concern." The Fourth Circuit opinion mentions that "public concern" test, but Boyle's opinion does not. The Fourth Circuit explained that public concern is part of the "Pickering Balancing Test," which also was not mentioned in Judge Boyle's opinion. That makes me suspect that the parties did not brief it for the trial court, and so I'm dubious about the criticisms of Judge Boyle in this regard. In any event, Judge Boyle said in his opinion that the issue was the extra-curricular employment and supplementary salary of the police officer, and Boyle went on to explain that the officer certainly did have a constitutional right to say the same things as a volunteer. Maybe that's why the police officer belatedly tried to amend his complaint to assert that his teaching job included expression of some personal views about firearms safety that were not necessary parts of the course he was paid to teach (the 4th Circuit seems to have ignored the volunteer vs. employee distinction).

A year later, in Godon v. North Carolina, Judge Boyle ruled in a similar case. An employee of a state-run boot camp for young people sued the state, saying she was fired for complaining about discriminatory treatment of the female and black people at the boot camp. The boot camp countered that Godon's firing had nothing to do with her complaints, so this was primarily a question of fact. The boot camp claimed that she was fired due to infractions such as allowing female cadets to sleep together. A description of the case can be found in Godon v. North Carolina Crime Control & Pub. Safety, No. 99-2509, 2000 U.S. App. LEXIS 30148 (4th Cir. 2000), which remanded the case for additional factfinding. Judge Boyle was not saying that the employee could be fired due to things she may have said or not said. He was saying that she could be fired due to the other infractions.

I'm not sure whether Edwards and Godon ever got their jobs back. Anyway, all of these issues about free speech of public employees were considered by the Judiciary Committee, and by the American Bar Association as well. Judge Boyle received a "well qualified" rating from the ABA, and approval by the Committee.

UPDATE: On a somewhat related note, the U.S. Supreme Court decided the case of Garcetti v. Ceballos on May 30, 2006. The Court decided thst employee speech has less constitutional protection than citizen speech. See here.

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Posted at 1:08pm on May 18, 2006 Hugh, Please Distinguish Between Bloggers and Commenters

By AndrewHyman

Hardly a post goes by at ConfirmThem.com where someone doesn't denounce the president for the Miers nomination...

Anyone can comment about our blog posts, and we obviously don't necessarily endorse what is said in the comments.

UPDATE: Thank you for your update, Hugh.

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Posted at 2:16am on May 18, 2006 Lithwick's Dalliance With the Truth

By AndrewHyman

Today, Dahlia Lithwick's namecalling starts with her title: "Pack Rats: It's not a good idea to start stacking the federal bench." And her article (in Slate) doesn't fail to deliver as promised in the title .

Social conservatives ... don't much care about the president; they just think the next few months may be their last chance to cram a huge boatload of NUT JOBS into the courts before the doors to the White House and Congress slam shut....These groups want the president to launch a full-scale feud over his judicial appointments, inviting a filibuster from Democrats, which can then be answered by (be still my heart) the so-called nuclear option. Once the nuclear button has been pressed, they figure, it'll be a clear shot for even their CRAZIEST WING NUTS to the bench....But the Bush administration should think carefully before launching this war. Because it will never, ever be able to give these groups what they want. (Something the Bushies should already know from the absolutist resistance they're getting on immigration reform). They will fail in the attempt to suck up, and that will alienate this group come election time....For one thing, the president has no idea what even his most loyal JUDICIAL MONKEYS may do in the futureââ‚”so even in the best of circumstances, he can't give his supporters the kind of certainty they want.

Giddy at having taken Harriet Miers out of the running for a Supreme Court seat, conservative groups no longer need to trust Bush's judicial picks. They want to seat their own. And these groups don't want moderates, or minimalists, or mere callers of "balls and strikes." If, as they say, they represent the "values voters," they want only FIRE BREATHING Roy Moore types. They are more interested in confirming Judge Terrence Boyle to the Fourth Circuitââ‚”despite PESKY recent allegations that Boyle saw fit to buy stock in General Electric while presiding over a case in which GE was a party. (GE won.)

"Pesky" is about the only accurate word in her article. Calling Judge Terrence Boyle a "nut job" and a "wing nut" and a "judicial monkey" and a "fire breather" is absurd. Such conservatives don't get rated "well qualified" by the ABA, nor would they be supported at this site. Unethical attacks by people like Lithwick should not slow down Judge Boyle's confirmation. In fact, they should speed it up. This is what happens when nominees are left hanging defenseless, like pinatas, for years on end.

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Posted at 6:43pm on May 17, 2006 Paging Senator Graham

By AndrewHyman

Several of Judge Boyle's former clerks would please like to have a few words with you, Senator Graham. Before you meet with them, Ed Whelan has just posted a must-read column over at National Review titled, "Partisan Ethics: Some perspective on the charges against Judge Boyle." Whelan concludes:

Democrats have displayed no real interest in judicial ethics but instead seek to use ethics charges as a partisan club against President Bushââ‚â„¢s judicial nominees. Yet as soon as Salonââ‚â„¢s allegations surfaced, a number of Senate Republicans, showing a disturbing penchant for abject surrender, seemed all too ready to abandon Judge Boyleââ‚â„¢s nomination. In the absence of any genuinely serious ethics issues, any Republicans who run from the Boyle fight will demonstrate their own lack of fitness for office.

The entire Judiciary Committee ought to read Whelan's piece, before the business meeting tomorrow (Sandra Ikuta's nomination is on the agenda).

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Posted at 2:04pm on May 17, 2006 What Bush Should Do

By Quin

This is more broadly political than merely being about judges, but I do mention the judicial wars several times in this column, so I thought y'all might find it of interest. When the fight is about judges, conservatives win.

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Posted at 12:44pm on May 17, 2006 Open....

By AndrewHyman

Thread.

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Posted at 10:20pm on May 16, 2006 Pressure Groups Apply Pressure

By AndrewHyman

The Hill reports about efforts to get the Senate leadership to vote on more judicial nominations. Senator McConnell is quoted regarding the timing of a Boyle vote: ââ‚Å“I donââ‚â„¢t think it would be between now and the [Memorial Day] break.â₝ Hmm. Perhaps after the break?

Meanwhile, Hugh Hewitt elicits a promise from Senator Frist to get a Kavanaugh vote by Memorial Day.

And, the Family Research Council asks, What About Boyle?

UPDATE: Gerry Smith of the Herald-Sun in Chapel Hill has a report titled, " Boyle waits for 4th Circuit spot." An excerpt:

Todd Gaziano, of the conservative Heritage Foundation, said Boyle has been a "political football" since his nomination in 1991. "Vote him up or vote him down," Gaziano said.

The ABA website, by the way, continues to rate Judge Boyle as "well-qualified."

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Posted at 7:45pm on May 16, 2006 Hammond and Gold on the Constitutional Option

By AndrewHyman

Jonathan Allen reports in The Hill about a conservative named Mike Hammond, who opposes the constitutional/nuclear/Byrd option:

ââ‚Å“Most of us feel that it is functionally impossible to separate filibusters of judges from filibusters of nominees from filibusters of legislation.â₝ Several respected conservatives who share Hammondââ‚â„¢s view declined to discuss the topic on the record for fear of upsetting powerful senators and interest groupsâ₦.Hammond and others worry that in their zeal to seat more judges, conservatives ultimately could lose a powerful tool that has been used, and would surely be used again, to frustrate the legislative priorities of liberal Democratic majoritiesâ₦.

Many Republican senators ....base their arguments on a paper co-written by former Senate aide Martin B. Gold in the Harvard Law Review in support of the maneuver. But critics note the paper does not seek to draw a distinction between judicial nominations and other matters.

I believe that Hammond is mistaken. Last year, Hammond wrote an essay available here, opposing the ââ‚Å“nuclear option," on behalf of certain gun rights advocates. The law review article by Gold and Gupta is available here.

In his essay last year, Hammond called the nuclear/constitutional/Byrd option the ââ‚Å“non-continuing-body optionâ₝ (as if it doesnââ‚â„¢t have enough names already). According to Hammond, this option has no ââ‚Å“precedent in Senate procedure. Furthermore, it is impossible to invoke â₦ without effectively abolishing the legislative filibuster as well.â₝ But in reality, as the Gold article explained, there were ââ‚Å“three times in 1975 that the Senate would go on record supporting the constitutional option.â₝ And Tom Currie of MSNBC also explained: ââ‚Å“on Feb. 20, 1975, by a vote of 51 to 42, the Senate lowered the threshold for ending a filibuster from two-thirds of those senators present (67 if all 100 were in the chamber) to 60 senators.â₝

Hammond says it's "functionally impossible to separate filibusters of judges from filibusters of nominees from filibusters of legislation." This is an odd assertion, given that the constitutional option was supported in 1975 and yet did not put us on a slippery slope to completely eliminating all filibusters. Moreover, if the constitutional option were used now to RESTORE traditional nomination procedures, that would be very different from the feared use of the constitutional option to someday radically CHANGE traditional legislative procedures. The former is no precedent for the latter.

Hammond's notion that the Senateââ‚â„¢s rules necessarily carry over from one Congress to the next, and bind the next Congress, is patently absurd. If it were true, then the Senate today could pass a rule requiring that all later amendments to the rules have to be unanimous. Thatââ‚â„¢s obviously not what the framers of the Constitution meant when they said that the Senate ââ‚Å“may determine the Rules of its Proceedings.â₝ Hammond's wrong, and Gold's right.

UPDATE: I'd like to add these thoughts, that came via a little birdy, after I wrote this post. :-) If Sen. Frist doesn't credibly push the constitutional option, then there is no incentive for negotiated compromise. Without that compromise, the filibuster reigns supreme. If the filibuster reigns supreme, then people like Owen, Brown, Pryor, Kavanaugh, et al. won't serve on circuit courts, and people like Alito et al. won't get to the Supreme Court.

Having conveyed those thoughts, I'd add that it would be nice if we could avoid this nuclear brinksmanship time after time. Indeed, the moment may be approaching when there will have to be one or more actual votes on the constitutional option.

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Posted at 5:16pm on May 16, 2006 "Dole Expresses Strong Support for Judge Terrence Boyle"

By AndrewHyman

Here's a press release that just showed up on the Senator's web site:

May 11th, 2006 - Washington, D.C. - U.S. Senator Elizabeth Dole today made the following statement regarding the nomination of Judge Terrence Boyle to the U.S. Court of Appeals for the Fourth Circuit:

ââ‚Å“Judge Boyle is a distinguished judge and dedicated public servant, and he is eminently qualified to serve on the federal appellate court. I strongly support his nomination.

ââ‚Å“There is no doubt that these frivolous allegations have emerged at a strategically determined time, in a desperate partisan attempt to distract attention from the merits of Judge Boyleââ‚â„¢s nomination. Judge Boyle has an excellent reputation for fairness and integrity that will not be tarnished by this partisan politicking.

ââ‚Å“Judge Boyle deserves an up or down vote by the full Senate. His more than 20 year record as a judge has been thoroughly reviewed by the Senate Judiciary Committee, the American Bar Association, and the White House ââ‚“ and all have found him to be well qualified to serve as a federal appellate judge. Judge Boyleââ‚â„¢s experience, integrity, competence and temperament far exceed what is expected for an appellate nominee.â₝

Here are details about those frivolous allegations.

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Posted at 4:10pm on May 16, 2006 In the Trivia Department

By AndrewHyman

1) When was the last time the GOP had a three-fifths majority of the full Senate?

2) Which two former U.S. Senators said the following in March of 2005, before the Gang of 14 was created?

ââ‚Å“In short, barring some extraordinary circumstances, we believe the Senate should be able to vote on almost all of any president's judicial appointments.â₝

3) What historic event occurred in the Senate on February 20, 1975?

Answers below the fold.

1) The last time the GOP held 60% of the full Senate was in 1923. The division was 59 Republicans to 37 Democrats. See here. Note that "three -fifths" is the supermajority now specified in Senate Rule 22 to overcome a filibuster.

2) On March 20, 2005 there was a Wall Street Journal opinion piece by former Senators Malcolm Wallop and James McClure discussing "extraordinary circumstances." Here's a link.

3) The so-called "nuclear option" or "constitutional option" was employed. As Tom Curry of MSNBC describes, "on Feb. 20, 1975, by a vote of 51 to 42, the Senate lowered the threshold for ending a filibuster from two-thirds of those senators present (67 if all 100 were in the chamber) to 60 senators."

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Posted at 11:29am on May 16, 2006 Boyle Update

By AndrewHyman

The Washington Post has an update about the Boyle nomination (I've highlighted a couple sections):

Boyle, a federal district judge in North Carolina, has been waiting for a confirmation vote to the Richmond-based 4th Circuit appellate court since 1991, and Senate Majority Leader Bill Frist (R-Tenn.) can call for such a vote whenever he chooses. But Boyle, who has a COMPARATIVELY HIGH rate of being reversed by higher courts, has drawn strong Democratic opposition, and the long wait has not helped.

Salon.com recently raised allegations of a conflict of interest in Boyle's stock holdings. Conservative activists have grown frustrated at what they consider a lackluster bid by the White House and others to refute the charges, a task that has fallen mainly to Boyle's former law clerks.

The Committee for Justice, a group that backed the Supreme Court confirmations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., hosted yesterday's conference call in hopes of drawing more attention to the law clerks' letters of support. But SENATE JUDICIARY COMMITTEE CHAIRMAN ARLEN SPECTER (R-PA) HAS INDICATED HE IS LOOKING FOR A MORE COMPREHENSIVE AND OBJECTIVE RESPONSE TO THE SALON.COM REPORT.

Evidently WaPo may not be the place to look for a comprehensive and objective report; Judge Boyle's reversal rate is 7.5 percent, and thus is below the national average of 9.7 percent, according to the Administrative Office of the Courts. More info about Judge Boyle's reversal rate is here, courtesy of the Republican National Lawyers Association (RNLA). As far as the amount of "plain errors" that Boyle has made, George Washington University law professor Jonathan Turley (hardly a conservative) has said that Boyle "earned a high number of reversals for 'plain error' but the situation isn't extreme enough to justify a filibuster... particularly given his 'well qualified' ABA ranking."

The recusal allegations are also insubstantial. The oversight was harmless, and did not affect the outcome of any cases. The financial interest involved was very small, and many other judges (on circuit courts as well as the Supreme Court) have done a lot worse on this score than Judge Boyle has done. The White House has repeatedly said that, "Judge Boyle has never intentionally participated in any matter in which he should have recused himself, nor has there been any suggestion that Judge Boyle knowingly overlooked any conflict or used his office for private gain." What I'd like to know is what the Senate Judiciary Committee is doing to ensure a comprehensive and objective response to those bogus, last-minute recusal allegations against Judge Boyle.

ADDENDUM: The White House has explained as follows:

In a ââ‚Å“handful of cases,â₝ the spokesman said, ââ‚Å“it appears that recusal was warranted,â₝ but those cases were not caught by the courtââ‚â„¢s checking system for possible conflicts of interest or by the judgeââ‚â„¢s staff. ââ‚Å“These are mistakes that happen to many judges,â₝ Jones said. Boyle, he added, ââ‚Å“has an excellent reputation for fairness and integrity. That shouldnââ‚â„¢t be destroyed by mistakes in a tiny fraction in the thousands of cases in which he has sat.â₝

The Senate ought to be concerned about its own fairness and integrity if it refuses to allow even a cloture vote on this nominee.

ADDENDUM #2: Jack Betts, senior political reporter for the Charlotte Observer (which is the largest newspaper in North Carolina) comments:

[T]hereââ‚â„¢s way too much finger-pointing and not enough voting. No wonder the public is disgusted with both parties. Iââ‚â„¢ve sat in Boyleââ‚â„¢s courtrooms in Raleigh and in Elizabeth City and watched him handle three high-profile matters ââ‚“ a campaign finance regulation case, the dispute over ownership of North Carolinaââ‚â„¢s copy of the Bill of Rights and the proposed Navy Outlying Landing Field in northeastern North Carolina ââ‚“ and Iââ‚â„¢ve noticed a couple of things: He knows more about the cases than the lawyers arguing before him. He gets at the truth. And he surprises people with his independent rulings.

I say itââ‚â„¢s time to vote.

Aye.

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Posted at 1:34am on May 16, 2006 Whelan and Brownback on Judicial Nominations

By AndrewHyman

Today (Tuesday) the Senate will confirm Milan Smith as a Ninth Circuit judge. This will end a period of more than eleven months during which only one sitting Appeals Court judge has been confirmed by the Senate. Although the Senate did confirm two Supreme Court justices, I hope they'll really get rolling with circuit court judges. There's now a double digit vacancy rate in the circuit courts, and many of those are emergency vacancies. And, really, should we be all that excited about Smith's confirmation today? Ed Whelan isn't:

PRESIDENT BUSH RECENTLY NOMINATED MILAN D. Smith Jr. to fill a longstanding vacancy on the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit, which covers nine western states, is a notorious bastion of liberal judicial lawlessness. So the White House should be looking to fill the vacancy with an outstanding jurist who is learned in questions of federal constitutional and statutory law and who is prepared to dedicate two decades or more to the arduous task of helping to transform that court.

Unfortunately, Smith hardly fits the bill. A Los Angeles-area attorney, Smith, 64, has specialized for nearly four decades in real estate transactions--a specialty that has little bearing on the questions that occupy federal courts. In his one term as a member of a state antidiscrimination commission, he "distinguished himself" by "his time-management skills," says one of his supporters. He recently explained his decision to step down from the commission by implying disdain for his fellow party members: "I'm a Republican, but I'm a Republican with a heart."

Quin Hillyer's not jumping for joy either. If the Senate gets around to voting on a really solid, originalist judge, then it may be necessary to insist on a simple, traditional majority vote. Senator Brownback said on May 9 that there may be sufficient support in the Senate to guarantee a majority vote on judicial nominees:

HH: Are the votes there, Senator Brownback, to invoke the Constitutional Option, meaning you need at least fifty Republican votes plus the vote of the Vice President to rule that in fact, filibusters of judicial nominees are out of order. Do you have fifty?

SB: I believe we do. I have not seen a whip count in recent times, but back when we were looking at the Supreme Court nominees, we did have the votes at that time.

I hope so. Nominees like Brett Kavanaugh and Terrence Boyle are honorable people who have been waiting an inordinate amount of time for a simple up or down vote in the Senate.

UPDATE: The nomination of Milan Smith for the Ninth Circuit has been confirmed by a vote of 93-0. Sincere congratulations.

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Posted at 10:33pm on May 15, 2006 Immigration

By AndrewHyman

Due to popular demand, this thread is for discussion of immigration, which I suppose may affect the next elections, which may in turn affect the confirmation of judges. Please don't comment any more about this tenuously related subject in other threads! Use this thread instead. Below the fold are the President's speech, plus the news briefing that preceded it. Thanks.

As Prepared for Delivery

Good evening. I have asked for a few minutes of your time to discuss a matter of national importance ââ‚“ the reform of Americaââ‚â„¢s immigration system.

The issue of immigration stirs intense emotions ââ‚“ and in recent weeks, Americans have seen those emotions on display. On the streets of major cities, crowds have rallied in support of those in our country illegally. At our southern border, others have organized to stop illegal immigrants from coming in. Across the country, Americans are trying to reconcile these contrasting images. And in Washington, the debate over immigration reform has reached a time of decision. Tonight, I will make it clear where I stand, and where I want to lead our country on this vital issue.

We must begin by recognizing the problems with our immigration system. For decades, the United States has not been in complete control of its borders. As a result, many who want to work in our economy have been able to sneak across our border ââ‚“ and millions have stayed.

Once here, illegal immigrants live in the shadows of our society. Many use forged documents to get jobs, and that makes it difficult for employers to verify that the workers they hire are legal. Illegal immigration puts pressure on public schools and hospitals ... strains state and local budgets ... and brings crime to our communities. These are real problems, yet we must remember that the vast majority of illegal immigrants are decent people who work hard, support their families, practice their faith, and lead responsible lives. They are a part of American life ââ‚“ but they are beyond the reach and protection of American law.

We are a Nation of laws, and we must enforce our laws. We are also a Nation of immigrants, and we must uphold that tradition, which has strengthened our country in so many ways. These are not contradictory goals ââ‚“ America can be a lawful society and a welcoming society at the same time. We will fix the problems created by illegal immigration, and we will deliver a system that is secure, orderly, and fair. So I support comprehensive immigration reform that will accomplish five clear objectives.

First, the United States must secure its borders. This is a basic responsibility of a sovereign Nation. It is also an urgent requirement of our national security. Our objective is straightforward: The border should be open to trade and lawful immigration ââ‚“ and shut to illegal immigrants, as well as criminals, drug dealers, and terrorists.

I was the governor of a state that has a twelve-hundred mile border with Mexico. So I know how difficult it is to enforce the border, and how important it is. Since I became President, we have increased funding for border security by 66 percent, and expanded the Border Patrol from about 9,000 to 12,000 agents. The men and women of our Border Patrol are doing a fine job in difficult circumstances ââ‚“ and over the past five years, we have apprehended and sent home about six million people entering America illegally.

Despite this progress, we do not yet have full control of the border, and I am determined to change that. Tonight I am calling on Congress to provide funding for dramatic improvements in manpower and technology at the border. By the end of 2008, we will increase the number of Border Patrol officers by an additional 6,000. When these new agents are deployed, we will have more than doubled the size of the Border Patrol during my Presidency.

At the same time, we are launching the most technologically advanced border security initiative in American history. We will construct high-tech fences in urban corridors, and build new patrol roads and barriers in rural areas. We will employ motion sensors â₦ infrared cameras â₦ and unmanned aerial vehicles to prevent illegal crossings. America has the best technology in the world ââ‚“ and we will ensure that the Border Patrol has the technology they need to do their job and secure our border.

Training thousands of new Border Patrol agents and bringing the most advanced technology to the border will take time. Yet the need to secure our border is urgent. So I am announcing several immediate steps to strengthen border enforcement during this period of transition:

One way to help during this transition is to use the National Guard. So in coordination with governors, up to 6,000 Guard members will be deployed to our southern border. The Border Patrol will remain in the lead. The Guard will assist the Border Patrol by operating surveillance systems â₦ analyzing intelligence â₦ installing fences and vehicle barriers â₦ building patrol roads â₦ and providing training. Guard units will not be involved in direct law enforcement activities ââ‚“ that duty will be done by the Border Patrol. This initial commitment of Guard members would last for a period of one year. After that, the number of Guard forces will be reduced as new Border Patrol agents and new technologies come online. It is important for Americans to know that we have enough Guard forces to win the war on terror, respond to natural disasters, and help secure our border.

The United States is not going to militarize the southern border. Mexico is our neighbor, and our friend. We will continue to work cooperatively to improve security on both sides of the border ... to confront common problems like drug trafficking and crime ... and to reduce illegal immigration.

Another way to help during this period of transition is through state and local law enforcement in our border communities. So we will increase federal funding for state and local authorities assisting the Border Patrol on targeted enforcement missions. And we will give state and local authorities the specialized training they need to help federal officers apprehend and detain illegal immigrants. State and local law enforcement officials are an important resource ââ‚“ and they are part of our strategy to secure our border communities.

The steps I have outlined will improve our ability to catch people entering our country illegally. At the same time, we must ensure that every illegal immigrant we catch crossing our southern border is returned home. More than 85 percent of the illegal immigrants we catch crossing the southern border are Mexicans, and most are sent back home within 24 hours. But when we catch illegal immigrants from other countries, it is not as easy to send them home. For many years, the government did not have enough space in our detention facilities to hold them while the legal process unfolded. So most were released back into our society and asked to return for a court date. When the date arrived, the vast majority did not show up. This practice, called ââ‚Å“catch and release,â₝ is unacceptable ââ‚“ and we will end it.

We are taking several important steps to meet this goal. We have expanded the number of beds in our detention facilities, and we will continue to add more. We have expedited the legal process to cut the average deportation time. And we are making it clear to foreign governments that they must accept back their citizens who violate our immigration laws. As a result of these actions, we have ended ââ‚Å“catch and releaseâ₝ for illegal immigrants from some countries. And I will ask Congress for additional funding and legal authority, so we can end ââ‚Å“catch and releaseâ₝ at the southern border once and for all. When people know that they will be caught and sent home if they enter our country illegally, they will be less likely to try to sneak in.

Second, to secure our border, we must create a temporary worker program. The reality is that there are many people on the other side of our border who will do anything to come to America to work and build a better life. They walk across miles of desert in the summer heat, or hide in the back of 18-wheelers to reach our country. This creates enormous pressure on our border that walls and patrols alone will not stop. To secure the border effectively, we must reduce the numbers of people trying to sneak across.

Therefore, I support a temporary worker program that would create a legal path for foreign workers to enter our country in an orderly way, for a limited period of time. This program would match willing foreign workers with willing American employers for jobs Americans are not doing. Every worker who applies for the program would be required to pass criminal background checks. And temporary workers must return to their home country at the conclusion of their stay.

A temporary worker program would meet the needs of our economy, and it would give honest immigrants a way to provide for their families while respecting the law. A temporary worker program would reduce the appeal of human smugglers ââ‚“ and make it less likely that people would risk their lives to cross the border. It would ease the financial burden on state and local governments, by replacing illegal workers with lawful taxpayers. And above all, a temporary worker program would add to our security by making certain we know who is in our country and why they are here.

Third, we need to hold employers to account for the workers they hire. It is against the law to hire someone who is in this country illegally. Yet businesses often cannot verify the legal status of their employees, because of the widespread problem of document fraud. Therefore, comprehensive immigration reform must include a better system for verifying documents and work eligibility. A key part of that system should be a new identification card for every legal foreign worker. This card should use biometric technology, such as digital fingerprints, to make it tamper-proof. A tamper-proof card would help us enforce the law ââ‚“ and leave employers with no excuse for violating it. And by making it harder for illegal immigrants to find work in our country, we would discourage people from crossing the border illegally in the first place.

Fourth, we must face the reality that millions of illegal immigrants are already here. They should not be given an automatic path to citizenship. This is amnesty, and I oppose it. Amnesty would be unfair to those who are here lawfully ââ‚“ and it would invite further waves of illegal immigration.

Some in this country argue that the solution is to deport every illegal immigrant ââ‚“ and that any proposal short of this amounts to amnesty. I disagree. It is neither wise nor realistic to round up millions of people, many with deep roots in the United States, and send them across the border. There is a rational middle ground between granting an automatic path to citizenship for every illegal immigrant, and a program of mass deportation. That middle ground recognizes that there are differences between an illegal immigrant who crossed the border recently ââ‚“ and someone who has worked here for many years, and has a home, a family, and an otherwise clean record. I believe that illegal immigrants who have roots in our country and want to stay should have to pay a meaningful penalty for breaking the law â₦ to pay their taxes â₦ to learn English â₦ and to work in a job for a number of years. People who meet these conditions should be able to apply for citizenship ââ‚“ but approval would not be automatic, and they will have to wait in line behind those who played by the rules and followed the law. What I have just described is not amnesty ââ‚“ it is a way for those who have broken the law to pay their debt to society, and demonstrate the character that makes a good citizen.

Fifth, we must honor the great American tradition of the melting pot, which has made us one Nation out of many peoples. The success of our country depends upon helping newcomers assimilate into our society, and embrace our common identity as Americans. Americans are bound together by our shared ideals, an appreciation of our history, respect for the flag we fly, and an ability to speak and write the English language. English is also the key to unlocking the opportunity of America. English allows newcomers to go from picking crops to opening a grocery â₦ from cleaning offices to running offices â₦ from a life of low-paying jobs to a diploma, a career, and a home of their own. When immigrants assimilate and advance in our society, they realize their dreams ... they renew our spirit ... and they add to the unity of America.

Tonight, I want to speak directly to Members of the House and the Senate: An immigration reform bill needs to be comprehensive, because all elements of this problem must be addressed together ââ‚“ or none of them will be solved at all. The House has passed an immigration bill. The Senate should act by the end of this month ââ‚“ so we can work out the differences between the two bills, and Congress can pass a comprehensive bill for me to sign into law.

America needs to conduct this debate on immigration in a reasoned and respectful tone. Feelings run deep on this issue ââ‚“ and as we work it out, all of us need to keep some things in mind. We cannot build a unified country by inciting people to anger, or playing on anyoneââ‚â„¢s fears, or exploiting the issue of immigration for political gain. We must always remember that real lives will be affected by our debates and decisions, and that every human being has dignity and value no matter what their citizenship papers say.

I know many of you listening tonight have a parent or a grandparent who came here from another country with dreams of a better life. You know what freedom meant to them, and you know that America is a more hopeful country because of their hard work and sacrifice. As President, I have had the opportunity to meet people of many backgrounds, and hear what America means to them. On a visit to Bethesda Naval Hospital, Laura and I met a wounded Marine named Guadalupe Denogean. Master Gunnery Sergeant Denogean came to the United States from Mexico when he was a boy. He spent his summers picking crops with his family, and then he volunteered for the United States Marine Corps as soon as he was able. During the liberation of Iraq, Master Gunnery Sergeant Denogean was seriously injured. When asked if he had any requests, he made two ââ‚“ a promotion for the corporal who helped rescue him â₦ and the chance to become an American citizen. And when this brave Marine raised his right hand, and swore an oath to become a citizen of the country he had defended for more than 26 years, I was honored to stand at his side.

We will always be proud to welcome people like Guadalupe Denogean as fellow Americans. Our new immigrants are just what they have always been ââ‚“ people willing to risk everything for the dream of freedom. And America remains what she has always been ââ‚“ the great hope on the horizon â₦ an open door to the future â₦ a blessed and promised land. We honor the heritage of all who come here, no matter where they are from, because we trust in our countryââ‚â„¢s genius for making us all Americans ââ‚“ one Nation under God. Thank you, and good night.

END

And here is the press briefing that took place this evening before the remarks:

THE WHITE HOUSE

Office of the Press Secretary

________________________________________________________________

Embargoed For Release

Until 8:01:30 P.M. EDT

Monday, May 15, 2006

PRESS BRIEFING

ON THE PRESIDENT'S SPEECH ON IMMIGRATION

BY

TONY SNOW,

DAN BARTLETT, COUNSELOR TO THE PRESIDENT,

FRAN TOWNSEND, ASSISTANT TO THE PRESIDENT

FOR HOMELAND SECURITY AND COUNTERTERRORISM,

AND JOEL KAPLAN, ASSISTANT TO THE PRESIDENT

AND DEPUTY CHIEF OF STAFF FOR POLICY

Room 450

Dwight D. Eisenhower Executive Office Building

4:24 P.M. EDT

MR. SNOW: Quick note on the ground rules. This is an on-the-record briefing, but it is embargoed until the time of the delivery of the speech.

What we're going to do is Dan is going to give you an outline about how the speech came together and what the President hopes to accomplish; why the speech is being delivered now and the path forward. Fran, of course, will give an overview of border security. Joel, then, will talk about all the comprehensive portions of comprehensive reform, and he'll walk through temporary worker program, interior enforcement and the like.

With that, I'll hand it over to Dan.

MR. BARTLETT: The President decided almost a month ago that, strategically, this was going to be an important speech for him to deliver at the right time in the debate. We've been working on the speech for a couple weeks now. I can recall talking to him and talking to the speech writers during the California trip out West, when the President was out there for that weekend, already looking at language, working on the structure of the speech and looking at different concepts.

What was really the breakthrough, as far as timing, was last week's agreement between the leadership -- the Democrat and Republican leadership in the Senate to have the debate go forward. As you know, that starts this week, so on the eve of this debate we felt it was an important time for the President to articulate to the American people where he stands on the big issues, what are some other steps we can take on the key components of the President's strategy on comprehensive immigration reform.

The speech, itself, is broken down accordingly. First will be discussion about border security, which Fran will go into more detail about. The strategy remains the same, as far as having increased manpower complemented by vast improvements in our technological capability along the border. Like I said, Fran will go into some of the details about our long-term commitment to increasing our presence on the border, and then some immediate steps we're going to take as we build up those capabilities.

Secondly is the interior enforcement. You've heard the President talk considerably about this. This is a critical component of comprehensive reform, and to have effective enforcement. Right now we're putting many businesses in an untenable position to try to be verifiers of documents that are oftentimes forged. What the President will argue tonight and call for is tamper-proof cards and other measures to make sure that we can help employers verify the status of anybody who would be serving in a temporary worker program.

Then the onus not only comes on having a tamper-proof card, but also on -- it becomes incumbent upon employers to meet their requirements on the laws of the land.

Third, the President will argue the need for a temporary worker program. He will talk about how he views this in the context of how it can help better enforce our borders, how it can help bring a more rational system in which we match willing worker with willing employer. He will talk about the benefits that will come from such a plan of having a temporary worker program going forward.

He then will turn to the issue of the current illegal immigration population in our country, the 11 million or 12 million that are here. He will strongly state that he believes that an automatic path to citizenship is amnesty and it's something that he will vigorously oppose.

But he will also talk about really forging a rational middle ground when it comes to the specifics from it being illogical to think that we could massively deport 12 million illegal immigrants at one time; that we ought to have an approach that doesn't look at this as a monolithic population, but one in which there are realities we ought to take into consideration as we forge a piece of legislation to deal with the illegal immigrants that are already here. Fourth -- that is the fourth point.

And then fifth, he will talk about assimilation and the responsibilities of every citizen of our country and those who want to be citizens of our country, and that is basically the fact that you do have to meet the requirements of a citizen. That means learning English, assimilating, be law abiding, and other aspects of what has made America unique and the fact that people from all walks of life can come together under one fabric of the United States of America and do so in a way that we've out-performed any other country in the world when it comes to assimilation. And those are important values and principles that the President will articulate.

So those are the five components of the speech that he will articulate tonight. Right now we're looking at, roughly, 17 minutes in length. It could be a little more, a little less, but right now that looks about it at the point of delivery.