ConfirmThem

Justice Stevens is a true soldier in the cause of liberalism, and he knows that the odds favor Obama as the next President. (Thanks, President Bush)

So he will bide his time, enjoying good health and the admiration of the media. No more SC vacancies before '09.

This Stephens fellow, at nearly two millenia of age, must be a sight to behold! :D

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

The ABA (quite conveniently) issued a WQ rating for Paul Gardephe today, just in time for the Senate Judiciary Committee's hearing tomorrow.

http://www.abanet.org/scfedjud/ratings/ratings110.pdf

http://judiciary.senate.gov/hearing.cfm?id=3401

On 4/29, Bush nominated Gardephe of New York and Clark Waddoups of Utah. Gardephe (a bluestate nominee) gets his ABA rating today, six weeks after his nomination. Now let's see how fast Waddoups (a redstate nominee) gets his ABA rating.

Based upon this six week pace, Glen Conrad should get his ABA rating by 6/19. That is just enough time for him to get confirmed by 6/27, the time the Senate is supposed to adjourn for the July 4th break.

The Dems may want to confirm Glen Conrad before July 1st for two reasons. First, to better spin the judicial confirmation wars. They can say,

"While we couldn't confirm three circuit court nominees in the month before Memorial Day because of Republican obstruction, taken with Agee's confirmation in May, we have more than made up for it with three circuit court confirmations in June."

Secondly, they can then start the month of July off with a firm resolve not to confirm any more Republican judicial nominees because of the Thurmond Rule. If they confirm Glen Conrad in July, it might give the Republicans an opening to say,

"If you are willing to confirm noncontroversial nominee Glen Conrad after the beginning of the Thurmond Rule, why don't you confirm noncontroversial nominees Keisler, R. Conrad and Matthews as well?"

The Dems may not want to allow that type of Republican spin.

Mike McConnell, Janice Rogers Brown, or Miguel Estrada. We gotta go for it.

Then there is no way Keisler, R. Conrad or Matthews get confirmed. The Dems will claim that there is not enough time for the SJC to prepare for both a SCOTUS hearing and the hearings of three "controversial" appellate nominees.

BTW, I don't think there will a retirement this summer. Neither Stevens nor Souter appear to have any allegiance to George W. Bush or the present Republican Party, and Ginsburg would never allow a Republican to name her successor.

you're too much fun! Just when things were somewhat languishing at this site, you spice it up. Regrettably, I agree with BoBo and Manassas. But, if there is one, I agree with Damico that we must go for it--whomever the go for it nominee is. It's a no lose proposition. While I certainly would hope Bush would get his nominee confirmed, it would be delicious to hand McCain such a tasty campaign issue.

The only thing that would make this month even better would be a return visit from... Insider! That's even less likely than a SCOTUS vacancy.

they are ready for such an eventuality, however unlikely the possibility might appear?

Decisions about retirement are affected by more than cold calculations regarding how the current political climate may result in a nominee of one judicial philosophy or another. Stevens seems to like his job. What's not to like? The work is interesting. The hours are reasonable (summer vacation!). And he has 4 super-bright minions to take the edge off. Plus, retirement at his age leaves him without much to do except wait for death. As long as he can do the job, I don't see him hanging up his robes.

I have heard recurring stories about how Justice Souter doesn't like DC and yearns for the simplicity of his rural New Hampshire home (he was mugged once while jogging on the Mall). That would be a more plausible reason for a retirement than anything I've heard about Stevens.

if there is a retirement. And Quin is right to note that a vacancy in the final months of the Bush presidency will riase a new set of considerations. Does Bush make a conventional pick, or does he choose someone with an expectation that it's going to be a political battle? Or does he choose someone who the Democrats might have difficulty turning down?

For example, Edith Clement would put Mary Landrieu in a tough spot.

Janice Rogers Brown might put Obama himself in a tough spot. And a superbly qualified nominee from a state where a Democratic senator is running for re-election might put said legislator in a corner if the Senate refused to hold confirmation hearings.

Finally, what if the President nominated a Senator under these circumstances? I don't think it's been done since Truman. But would the Senate snub one of their own? If you were a Senator, would you want to cross a colleague offered the chance of a lifetime? Payback for that kind of dirty trick might itself last a lifetime.

I still believe that Pratter is more likely to be confirmed than is R. Conrad or Matthews. Insignificant Casey Junior is probably blue-slipping not on his own but as a tool of Reid and Leahy. He would release his blue slip on Pratter quickly on a signal from Reid and Leahy.

I still do not believe that Senate Democrats in the end will stiff Specter on Pratter and Short. What is more likely is some kind of a deal whereby Republican sacrifice Matthews, R. Conrad and the others in trade for confirming Pratter and G. Conrad. I suspect that the Democrats would agree to this after a lot of pressure.

The key is Keisler, who I believe will be the focal point of controversy and negotiations. Democrats will fight hard to exclude him and Republicans must fight just as hard to include him with Pratter and G. Conrad on the CCA confirmation list. I would wholeheartedly support such a deal if Keisler is included. I think Keisler could be the confirmation fight of the summer.

Red Oakster's post suggested the possibility that Bush might choose a Senator to fill a vacancy if one arises this year. I was thinking along those lines this morning, too. Though I have heard no one "in the know" suggest this, it seems that in light of Senatorial courtesy, picking a Senator would be the most potent way to blunt the inevitable resistance to confirming a candidate in an election year. One candidate would be John Cornyn of Texas, who was a trial court judge and state Supreme Court Justice, then Texas Attorney General, before winning his Senate seat. It would be impossible for the dems to claim with a straight face that he was not qualified.

The only catch is that he is up for reelection this year in Texas, and the dems are pushing hard statewide and in the urban areas (Dallas and Houston especially) to knock some Republican officerholders out of office. Having Cornyn just below McCain at the top of the ticket is important for down-ballot races in Texas.

Bobo -- I would gladly trade a dozen CCA vacancies for another SCOTUS nominee even if its just a Kennedy or Alito type of guy rather than a Roberts / Scalia / Thomas type.

Classic -- This administration READY? You have been paying attention to the snail's pace of CCA judges, belated finding of the veto pen, and the Harriett Myers blunder.

Lonestar -- No legislators! That's how Earl Warren started.

Now, as for the main article -- I agree with Quinn that its a possibility IF administration hasn't been secretly been bugging him about it (suppossedly Stevens was miffed that Clinton did so).

Prior to Obama, I was pushing for JRB with the idea that the Dems wouldn't want to filet an African American just prior to the election.

Now, with the disgruntled Hillary voters, I think it would be better to go with a white woman and reinforce to female swing voters that the Dems have it in for them.

Karen Williams was my favorite way back when (during the pre-alito guessing), but I suspect that Sykes might be the name or even Batchedler if a deal is worked out with the Dems (Batchedler's age would make her a less than ideal candidate but perhaps one that the Dems could handle).

http://afjjusticewatch.blogspot.com/2008/06/gop-conniption-over-judges-c...

"Clearly, Senate GOPers are gearing up for an election year row over judges. They are practically salivating over the thought of another vacancy on the Supreme Court. Recent posts on both the American Spectator Blog and ConfirmThem have suggested that Bush should be ready to nominate a new justice on the off chance that 'Justice Stephens [sic], in his late 1980s [sic]…wants to go out the way he came in, under a Republican president.'"

"Senate Republicans are continuing their procedural strong-arm tactics in an effort to force confirmation votes on the president’s most controversial circuit court nominees. In this morning’s session of the Senate Judiciary Committee, Republican members invoked Rule XXVI, aka "the two-hour rule” to cut short the first of a series of hearings on the importance of the United States Supreme Court.

This is the second time in two days committee Republicans have used the tactic; they employed it yesterday to cut short a Judiciary Committee hearing on torture. Senator Sheldon Whitehouse (D-RI) reportedly observed that he regretted the rule was invoked again today, and referred to the machinations as "an embarrassment on the part of my institution."

By invoking the rule – which states that no committee may conduct business after the full Senate has been in session for two hours without unanimous consent – committee Republicans have almost managed to call off hearings scheduled for today on four of President Bush’s own district court nominees. What’s that saying about cutting off your nose to spite your face?"

NOTE: As I warned yesterday, McConnell needs to be very careful that when he invokes the "two hour" rule that he not interfer with judicial nomination hearings or committee votes. Otherwise, he gives the Dems the ability to charge Republicans with obstructing their own judicial nominees.

Please don't lump Alito in with Kennedy. Alito has proven to be a principled and committed conservative jurist, though perhaps not an originalist. Roberts as well appears not to be an originalist per se, but he and Alito are committed to the text and to judicial restraint, and I think they are excellent justices. They in no way resemble Kennedy as justices, and it is silly to suggest so.

That being said, I would prefer - and I believe others here would as well - appointments to the Court of originalists/textualists. So, for me, that means Michael McConnell, Frank Easterbrook, Janice Rogers Brown, Maura Corrigan, J. Michael Luttig, and others committed to text and to original understanding.

Nominations

Helene N. White, of Michigan, to be United States Circuit Judge for the Sixth Circuit

Raymond M. Kethledge, of Michigan, to be United States Circuit Judge for the Sixth Circuit

Stephen Joseph Murphy III, of Michigan, to be United States District Judge for the Eastern District of Michigan

The Senate Judiciary Committee will hold a hearing on the Federal Judgeship Act of 2008 on Tuesday, June 17, 2008. Senator Feinstein will preside.

http://judiciary.senate.gov/hearing.cfm?id=3417

Does anyone know how it went today?

http://judiciary.senate.gov/member_statement.cfm?id=3401&wit_id=2629

"As I said last week, with cooperation from across the aisle, the Senate is prepared to confirm four circuit court judges and 11 district court judges before the July 4 recess, bringing the total confirmed this year to 15 lifetime appointments. That compares most favorably to the 17 district court judges confirmed during the entire 1996 session, a session in which the Republican Senate majority refused to confirm a single one of President Clinton’s circuit court nominations."

NOTE: This statement implicitly is saying that Glen Conrad will NOT be confirmed before the Senate breaks June 27. The four confirmed circuit court nominees will be Haynes, Agee, Kethledge and White. I still think the Dems will confirm Glen Conrad in July to divert attention away from their obstruction of Keisler, Robert Conrad and Matthews.

Absolutely no politicians ever again on SCOTUS. Esp. if their resumes may or may not be superior to Al Gonzales', and if they have plenty of tasty soundbites in their past about how physical attacks on judges & their families may be due to their decisions.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

At present, there are seven already confirmed district court nominees of 2008:

1) James Randal Hall, of Georgia

2) Stanley Thomas Anderson, of Tennessee

3) John A. Mendez, of California

4) Brian Stacy Miller, of Arkansas

5) Mark S. Davis, of Virginia

6) David Gregory Kays, of Missouri

7) Stephen N. Limbaugh, Jr., of Missouri.

The four remaining nominees likely to be confirmed on or before June 27th are:

1) William T. Lawrence, of Indiana

2) G. Murray Snow, of Arizona

3) Stephen Joseph Murphy III, of Michigan

4) David J. Novak, of Virginia.

I wonder, though, about Novak. His nomination seems to be taking an unusually long amount of time to process. There isn't, however, anyone with an ABA rating and an appropriately timed hearing who could presently replace him as a confirmed nominee.

Courtesy of Bench Memos,

http://www.latimes.com/news/local/la-me-kozinski12-2008jun12,0,6220192.s...

"9th Circuit's chief judge posted sexually explicit materials on his website

Alex Kozinski, who is presiding over an obscenity trial in L.A., admits he posted sexually explicit photos and videos. He says he didn't think the public could see the site, which is now blocked."

Courtesy of How Appealing,

http://www.nysun.com/national/judge-who-ruled-against-pledge-of-allegian...

"A prominent federal appeals court judge, best known for joining in an opinion holding unconstitutional the recitation of the Pledge of Allegiance in public schools, was hospitalized today after having difficulty breathing, officials said.

Judge Stephen Reinhardt, 77, a staunchly liberal voice on the 9th Circuit Court of Appeals, was traveling by plane to Washington when he took ill, a spokesman for the court said in an e-mailed statement. Oxygen was administered to Judge Reinhardt and the plane was diverted to Las Vegas, where he was admitted to Desert Springs Hospital, the spokesman, David Madden said."

"Judge Reinhardt's illness was disclosed this morning by the 9th Circuit's chief judge, Alex Kozinski, who called a brief recess at a trial he is presiding over at Los Angeles, a lawyer present said."

Last year Hackett and Cubsfan engaged in a protracted game of chicken over who would be the first to retire (the Court is not in the mood of "allowing" two vacancies in the same year, if they can avoid it.) Their "game" ended with neither of them retiring. The political atmosphere in DC is at this juncture so toxic, even within the Court (where CJ has done his damnest best to minimize it), that a retirement this year is not possible. Should the inconceivable occur and a vacancy actually arise, the Judiciary Democratic leadership has already vowed to filibuster any nominee that is to the right of Connie Callahan (or as the Dems pegged her in 2006, Sandy O'Connor part II.)

Expect a President Obama to name Hackett's replacement to the Court when the Court's 2008-2009 term ends. Cubsfan will likely follow on the Court's next term after that.

CJ's influence on the Court has expanded by leaps and bounds, as attested in the Court dynamics and the Court's decisions so far this term. CJ's "tradition" of gourmet goodies served in the Court's conferences is a big, big hit.

Fun factoid: Did you guys know that Cubsfan was actually in attendance at Wrigley field when the Babe called his shot in the 1932 World Series? He was 12 years old. Wow.

See you guys at the other side of the river.

Could you please check to see if this is the "real" Insider?

just someone else who took the name?

Or did I flush him/her out with my comment?

http://www.foxnews.com/story/0,2933,365698,00.html

"McConnell aides say he will make good on his threat to slow things down unless Reid keeps his word: to confirm 15 federal circuit judges before the end of President Bush's term.

Thursday, the Senate Judiciary Committee is scheduled to vote on two such nominees, Helene White and Raymond Kethledge. The nominees aren't high on the Republicans' agenda, but it's unclear what will happen in the committee at this point.

Republicans already have put off a vote once on White and Kethledge, so Thursday should see a vote on them. Republicans point to nominees like Peter Keissler [sic] — who has been waiting for years for confirmation — as their priorities, but Democrats are pushing White because she first was nominated by President Clinton during a Republican-led Senate but never received a vote."

The Supreme Court has issued a 5-4 decision in Boumediene v. Bush, holding that the Military Commissions Act of 2006 violates the habeas corpus rights of foreign detainees held at Guantanamo Bay. The decision reverses a decision of the DC Circuit.

n his dissent, Justice Scalia writes, "The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed." Justice Scalia's 25-page dissenting opinion concludes, "The Nation will live to regret what the Court has done today. I dissent."

SCOTUSblog describes the ruling as "a stunning blow to the Bush Administration in its war-on-terrorism policies."

So detainees at Guantanamo have habeas rights? Heaven help us.

What??? I don't understand the post. If it's meant to be humorous, it went over my head. Everyone here knows I don't engage in "protracted" anything, so I'm not sure why I'm mentioned. Not my style. And I'm not quite old enough to have been at Wrigley in 1932. I'm more of a 1969 vintage Cubs failure year.

INSIDER 2.0 is making reference to the nicknames that the famous commentator "Insider" used in the summer of 2006 to describe John Paul Stevens ("cubsfan") and David Souter ("Hackett") when he gave ConfirmThem false information that either one or the other or both justices would soon retire on the Supreme Court. INSIDER 2.0 is not referring to you.

Although White will pass out of committee, Specter said today that he will vote "no" on her confirmation on the Senate floor. In addition, Hatch said that he will vote "yes" in deference to the president. While I had assumed in the past that Kethledge and White would be confirmed by unanimous consent or voice vote to ensure senatorial anonymity, it now sounds that the nominees will be confirmed by roll call votes with debate. The Republicans probably want to highlight the judges issue with these confirmation debates. It may be their last chance - Sessions said today in the meeting that he doubts Reid plans to confirm the 15-17 Bush circuit court nominees he promised. He also said Leahy won't process Keisler, R. Conrad and Matthews. This is despite the fact that both Specter and Leahy said at the beginning of the meeting that they have been negotiating in good faith since last Friday to end this logjam over judges.

White passed out of committee by 11-8 with only Hatch among the Republicans voting for her. It was unusual since the committee has forgone roll call votes recently. I now wonder if the senators' previous comments on voting "yes" or "no" on White referred to the committee vote and not a full vote on the Senate floor. Both Kethledge and White were passed out of committee by voice vote.

At the end of the meeting, Leahy officially invoked the Thurmond Rule. He said that from now on only judicial nominees who were personally approved by Reid, Leahy, McConnell and Specter would be allowed committee votes.

http://www.detnews.com/apps/pbcs.dll/article?AID=/20080612/METRO/8061204...

" The Senate Judiciary Committee today voted largely by party lines to send the controversial federal judicial nomination of Helene White of Michigan to the Senate floor.

The vote was 11 to 8, with all Democrats voting for her, and all but one Republican -- Orrin Hatch of Utah -- voting against her.

Sen. Arlen Specter, the ranking Republican on the committee, raised concerns about how frequently White's opinions as a Michigan state judge were reversed by the Michigan State Supreme Court and also criticized her ability to manage a busy court docket.

Hatch also questioned White's qualifications, but said that presidents should be given great deference on their nominees.

"It's a close call," Hatch said of his decision to vote for White."

"...unlike White, Kethledge and Murphy were moved to the full floor by voice vote by Judiciary Committee members.

Carl Tobias, a law professor at the University of Richmond who specializes in federal judicial nominees, predicts the three nominees will win Senate confirmation.

"I think there will be vigorous debate on the Senate floor, but the Senate will confirm (White) and the other two," Tobias said."

Stevens also met Amelia Earhart & Charles Lindbergh as a child, when they stayed at his family's hotel. Guees I'm the real insider, oh wait, I just Google SCOTUSJ's names for recent articles.

McConnell has to shut down the Senate, and Hatch & Specter have to give press conference after press conference explaining what a fabrication this Thurmond rule nonsense is.

Will they? Of course not. Then they'll be sitting around next January with < 45 RSens, watching the steady parade of Paez's & Berzon's, wondering what happened. Spit in your own face, kiss the hand cutting your throat, Ayn Rand explained this very well. And judges are an issue Repubs always win on, too. Remarkable.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Tobias is really putting his credability on the line by predicting confirmations for White, Kethledge and Murphy. Gutsy call. I hope it works out for him.

http://www.foxnews.com/story/0,2933,366003,00.html

" The Senate Judiciary Committee confirmed two of President Bush's Circuit Court nominees Thursday, bringing the Senate closer to confirming 10 Appeals Court nominees in the last two years of this administration.

But that is not likely to appease Republicans who are angry and gradually closing down the business of the Senate in opposition to the slow pace of these particular lifetime appointments."

"Instead, Leahy, D-Vt., defiantly warned Republicans that such dilatory tactics would lead to Saturday hearings and also put his colleagues on notice, saying, "Further judges will be considered only if by consent of the two leaders of the Senate and the two leaders of this committee."

In a more ominous sign for the Republicans' goal, Leahy reminded his colleagues of the so-called "Thurmond Rule" — named for late Committee Chairman Strom Thurmond, R-S.C., who controlled the committee in the waning months of the Carter administration and fought against confirming the president's nominees."

"A number of Republicans noted that other Bush nominees have been languishing in the committee for more than a year, like Peter Keissler [sic] for the Fourth Circuit. Democrats countered that Judge White has been pending for 11 years, as she was first nominated in the late 1990s by President Clinton."

NOTE: This article is so poorly done that if I was an online news editor at FOXNews I would never have allowed it to be posted.

First, the SJC doesn't CONFIRM anybody. All they do is the preliminary vetting of the nominees for the whole Senate. This is an unbelievable error in phraseology and/or fact.

Second, the article's author shows a basic lack of knowledge over the present situation involving judges. Peter Keisler is a nominee for the D.C. Circuit, NOT the Fourth Circuit. She seems to be conflating two separate confirmation battles regarding the D.C. and Fourth Circuits.

Third, to add insult to injury, she can't even spell Keisler's last name correctly. She has done this consistently in other online articles she has written for FOXNews about judges. Who is her managing editor?

An article like this gives the Dems so much ammunition to use against both Republicans and the FOXNews team. How credible is any organization that allows such poor reporting?

http://afjjusticewatch.blogspot.com/2008/06/partisan-battle-rages-on-in-...

"Both [Kethledge and White] made it out of committee today, but the vote on Judge White was along mostly partisan lines. Raymond Kethledge received a unanimous voice vote, but eight Republicans, including Ranking Member Arlen Specter (R-PA) voted against Judge White. Committee Chair Patrick Leahy (D-VT), angered by Republican opposition to one of their own nominees, said that because she had been nominated by both a Democratic and Republican president, her nomination should have received a “consensus confirmation.”

Sen. Orrin Hatch (R-UT), who chaired the committee in 1997 when Judge White was initially nominated to the seat by President Clinton, was the only Republican on the committee to support her confirmation. His colleagues still contended that they were not given ample time to review her record before the vote. Their complaint rings hollow however, considering that after her nomination by President Clinton, her bid lagged for over three years, longer than any nominee in Senate history.

Alliance for Justice President Nan Aron said in a statement today that the actions of committee Republicans 'clearly demonstrate a desire to not only leverage the judiciary as an election-year issue, but also to pack the courts with like-minded ideologues. By applying a double standard in their assessment of nominees, Republicans turned White’s confirmation hearing into a witch hunt, despite giving repeated passes and deference to other nominees with acceptable conservative bona fides, including Sixth Circuit nominee Raymond Kethledge who was voted out of committee today by voice vote.'"

Courtesy of How Appealing,

http://abcnews.go.com/Politics/story?id=5055064&page=1

"The nation's leading gun control group filed a "friend of the court" brief back in January defending the gun ban in Washington, D.C. But with the Supreme Court poised to hand down a potentially landmark decision in the case, the Brady Campaign to Prevent Gun Violence fully expects to lose.

"We've lost the battle on what the Second Amendment means," campaign president Paul Helmke told ABC News. "Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically."

While the Brady Campaign is waving the white flag in the long-running debate on whether the Second Amendment protects an individual's right to bear arms or merely a state's right to assemble a militia, it is hoping that losing the "legal battle" will eventually lead to gun control advocates winning the 'political war.'"

http://judiciary.senate.gov/member_statement.cfm?id=3409&wit_id=2629

"One thing that has been apparent from the outset of the year is that Republicans hope, by ignoring their history of pocket filibustering more than 60 of President Clinton’s judicial nominations while they were in the majority of this Chamber, to simply erase their history. The history is clear. With respect to circuit court vacancies, Democrats have reversed course from the days during which the Republican Senate majority more than doubled them. We have lowered the 32 circuit court vacancies that existed when I became Chairman of the Judiciary Committee in the summer of 2001 to 11. Circuit vacancies have not been this low since 1996, when the Republican tactics of slowing judicial confirmations began in earnest. If we can confirm Judge White and Mr. Kethledge, we can reduce circuit court vacancies to single digits for the first time in decades.

I am sure there are some who prefer partisan fights designed to energize a political base during an election year, but I do not. I saw the story in Wednesday’s Roll Call that includes the headline “Divided GOP Settles on a Fight Over Judges” with all the discussion by Republican Senators of the politics that fuels their efforts to appeal to “conservative activists” and “ignite base voters” and find an issue that “serves as a rare unifier for Senate Republicans” and their presidential nominee."

http://pacer.ca4.uscourts.gov/opinion.pdf/067427.P.pdf

With today's Boumediene decision, the Fourth Circuit will quickly release its en banc decision in Al-Marri, affirming the original liberal opinion by Motz.

You are 100% correct. That article is completely unacceptable. We'd be in hysterics if Aron released something that pitiful. C'mon FOX, wake up.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Folks, it's time to face some cold, hard truths. The Supreme Court is lost. Today's terror ruling only confims that view. Despite the fact that 10 of the last 12 justices were appointed by Republicans, the Court is still quite liberal. Still worse, four years from now it will have a solid liberal majority thanks to Obama and Geroge W. Bush's many blunders. Mith McConnell had best get everything he can because it will be at least eight years before another Republican sniffs even a whiff of the White House.

I like your optimism! I doubt Kennedy will step down and, barring illness I don't think any of the solid 4 conservatives will retire during any Dem's term(s).

http://www.nytimes.com/2008/06/13/washington/13brfs-DEADLOCKONAP_BRF.htm...

"Deadlock on Appeals Court Judges Ends"

By NEIL A. LEWIS
Published: June 13, 2008

"The Senate Judiciary Committee split largely along party lines as it voted 10 to 8 in favor of two nominees from Michigan to the United States Court of Appeals for the Sixth Circuit, in Cincinnati. The nominees, Helene N. White, a liberal Democratic candidate originally put forward by President Bill Clinton, and Raymond M. Kethledge, a conservative Republican chosen by the Bush White House, were part of a compromise effort to break a years-long deadlock involving candidates from Michigan for the federal appeals bench. But many committee Republicans said the White House should have sought agreement from Democrats for the confirmation of additional Republican candidates. All but one of the Republicans, Senator Orrin Hatch of Utah, voted against Ms. White’s nomination, the key to the deal. The full Senate may take up the nomination before the July 4 recess."

NOTE: This article has both a biased point of view and some factual errors in it.

1) The title - "Deadlock on Appeals Court Judges Ends" - is misleading. It could be read to mean that the conflict over Peter Keisler and the Fourth Circuit nominees is also over. Another title - "Deadlock on MICHIGAN CIRCUIT Judges Ends" - might have been more accurately descriptive.

2) The vote count is wrong. The vote for White was 11-8 and NOT 10-8.

3) The statement - "But many committee Republicans said the White House should have sought agreement from Democrats for the confirmation of additional Republican candidates." - is blatantly wrong. I listened to the whole meeting yesterday, and no Republican said any such thing. I think the author meant, "But many committee DEMOCRATS said the White House should have sought FURTHER agreement from Democrats for the confirmation of additional Republican candidates."

4) The failure in the article to mention the stalled nominations of Keisler, Robert Conrad and Matthews appears to me to be a biased attempt to reinforce the false meaning of the title that ALL deadlocked nominations to the federal appeals courts are now resolved.

I was quite optimistic until the last month or so. The McCain campaign is a joke. I don't care what the polls say, he will lose handily in the fall. Given that, I think it's fair to say the Court is lost for another generation. I agree that none of the "conservative" justices will retire under Obama, but that doesn't take into account Kennedy. Outside of affirmative action, he's not all that conservative. (This is just my view, of course.) On the big, defining issues, he has generally sided with the internationalist liberals.

Given Kennedy's proclivity to move left on the important cultural issues, I shudder to think what the Court will look like in 2016. With Stevens, Ginsburg, and Souter replaced by Reinhardt style judges, the Court will be able to issue liberal rulings worthy of the Earl Warren era. To be sure, Kennedy will be there to offer some moderation, but he, much as O'Connor was, is the ultimate poll watcher. As the country continues to drift left, so to will his rulings.

I need a drink.

Editorial
Senators, start new beginning now
The Baltimore Examiner Newspaper
2008-06-13 07:00:00.0
Current rank: # 241 of 8,165

BALTIMORE -
Sens. Barbara Mikulski and Benjamin Cardin right now have power to shape the future of our nation. They can set the new direction and attitude. They can prove to America that Democratic cries for a new beginning are not just hollow party rhetoric.

And while they are at it, they can serve justice, relieve the beleaguered U.S. 4th District

Court of Appeals and put an excellent choice for judge on the bench.

They readily admit Maryland U.S. Attorney Rod J. Rosenstein would be a good judge. In fact, they say the main reason they are blocking his nomination is he does such a great job here in Maryland. The other reasons they give are patently specious.

Politics, they say, has nothing to do with keeping off the most shorthanded appeals court in the nation this Republican who clerked for Reagan Supreme Court nominee Judge Douglas Ginsburg before being hired and promoted by the Clinton Justice Department. IQ is not the issue. He graduated summa cum laude from Wharton, cum laude from Harvard and was a Law Review editor.

Now that Virginia’s senators joined hands across party lines to expedite one appointment, four vacant seats remain, still more than twice as many as any other circuit court of appeals. The partisan bickering over filling this influential bench has denied citizens of five states our full share of justice through the terms of three presidents and surely will into a fourth.

That is an outrage. If Mikulski and Cardin are playing mere politics with Maryland’s unofficial seat, they betray the people of our state. If they are waiting out the presidential election in hopes of inflicting an ideologue on the court and replacing Rosenstein with one as U.S. attorney, they should turn Democrats’ eight years of allegations against the Bush administration upon themselves.

For one thing, the 2008 election is a long way from decided. For another, even if their party’s nominee wins, he has called for a new beginning. Barack Obama asks all Americans “to believe not just in my ability to bring about real change in Washington. I’m asking you to believe in yours.”

Really? How can anybody believe in his or our ability to effect change if two of the smartest, most effective members of the Senate refuse to change?

Senators, we want change today, not seven months from now. The first thing we want you to change is putting party politics before the greater good of the people. Stop it.

Show the way. You still have time. The Senate filled the last seat only 65 days after President Bush’s nomination.

Use Rosenstein’s appointment to light a beacon on Capitol Hill that those who call for change can change themselves.

http://www.examiner.com/a-1439259~Senators__start_new_beginning_now.html

Does anyone know why neither side really mentioned the Youngstown case yesterday?

This was clearly a category one of the President acting under the authority of Congress, a situation when his power is at its "maximum":

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A [detention] executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

And yet the liberals just tossed that aside. So much for the strongest of presumptions and the widest of latitudes.

I think this is the first time in history that the Court has struck down a statute that falls under category one,

Yet neither side really mentioned it.

Can you give a brief synopsis of what this case is about and a link to the opinions?

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

http://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer

Youngstown is one of those famous cases you get in Constitutional law at law school. It had to do with Harry Truman seizing steel plants during the Korean war. He believed as a matter of necessity in a time of war that this was necessary to keep the plants making steel because there was an impending strike (I think... it has been a while since I read the case--- its cite is 343 U.S. 579 (1952)). The opinion that Helveticus is referring to is Justice Jackson's concurrence. In that opinion, which has come to be the governing opening (at least for academics and law school teachers), Justice Jackson set out a tiered standard of review of presidential actions. Based on where the presidential action fell, depended on how much deference it was given. For example, if he acted with express Congressional authority, his actions were to be given the most deference. On the other hand, when he acts on his own constitutional power and inconsistent with Congressional mandates, he has the least power.

That is the basic summary of the case, or at least what is important for Helveticus's comments. Here, President Bush was acting with the express Congressional authority from 2006 DTA. The opinion may not be as controlling at first because (1) it is merely a concurrence in a widely split court, (2) the nature of the war we are engaged in diverges sharply from that of the Korean War, and (3) the issue in the Boumediene case was not about a president seizing domestic factories, but rather dealing with alien and unlawful enemy combatants which were held on foreign soil. It is not an issue of whether the president was acting within his power, but whether the Court was acting within its own power in reviewing the case to begin with.

Thanks, I obv had heard of the "steel mills case" previously, but I didn't catch how Helveticus was tying it into Boumediene.

I used to walk past the campus law library on my way to the bar... :)

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.