ConfirmThem

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Mark Kilmer over at Redstate reviews the Sunday morning talk shows. On ABC's This Week, host George Stephanopoulos spoke with Senators Jon Kyl (R-Arizona) and Joe Biden (D-Delaware). Stephanopoulos brought up David Broder's compromise: give the judges up-or-down votes provided that the President makes no more recess appointments and the Senate leadership allows for extensive floor debate on each nominee. Biden dismissed this out of hand. Meanwhile, Sen. Mitch McConnell was on Face the Nation with Bob Schieffer, and McConnell said they now have the votes to change the rule.

UPDATE ON MCCONNELL: Reuters reports as follows....

"There's no doubt in my mind, and I'm a pretty good counter of votes ... that we have the votes we need," Senate Majority Whip Mitch McConnell of Kentucky told CBS's "Face the Nation." Sen. Christopher Dodd, a Connecticut Democrat appearing with McConnell, said conservative Republicans including former Senate leader Bob Dole "have urged the Republican leadership today to think long and hard about doing what they want to do."

Actually the former Senate leader made a few additional remarks as well.

UPDATE ON BIDEN: A transcript of Senator Biden's remarks is below the fold, with a few of my comments.

The following transcript is from sundaymorningtalk.com:

STEPHANOPOULOS: Senator Biden, we only have a few seconds left. Let me just ask you a quick question. David Broder of The Washington Post floats a possible compromise this morning. He says, "The Democrats should allow these seven to get an up-or-down vote in return for a promise from President Bush to have no recess appointment and a promise from the Republican leadership to allow each one of these seven to be debated extensively." Is that good enough for you?

BIDEN: No, but I think we should compromise and say to them that we're willing to --- of the seven judges --- we'll let a number of them go through, the two most extreme not go through and put off this vote and compromise. Let me read what the American Enterprise says: "Judicial activism will have to be deployed. It is plain that the idea of judicial deference is a dead-end street for conservatives." That's what this is all about. This is about ensuring that we have judicial activists. The filibuster has always been available to stop extremes.

STEPHANOPOULOS: Senator Biden...

BIDEN: These seven are in that category.

Earlier in the interview, Biden had said this:

BIDEN: Factually, let's put in perspective what we're talking about here, George. The president of the United States has sent up 215 judicial nominees. We have confirmed 205 of the 215. And the fact is, seven of the 10 that were stopped, three had to do with a Michigan fight. Seven of the 10 that were stopped are Justices like Justice Janice Brown of the Supreme Court of the state of California who says, she calls the Supreme Court decisions in 1937 the decisions of a socialist revolution in 1937. She talks about needing to do away with the New Deal. She raises questions as does the leading architect, the leading supporter at the American Enterprise Institute of the constitutionality of the Social Security system and so on.

I wonder if it would kill Senator Biden or the other liberal Senators to just once talk about the percentage of appellate judges they have confirmed, instead of mixing in the lower level judges too. Anyway, Biden's quote about deploying "judicial activism" is from a recent article by Jeffrey Rosen in the New York Times Magazine. Rosen says he's worried about future conservative judicial activism, which is highly ironic given that Rosen has defended liberal views that are extremely activist, such as the idea of using the Ninth Amendment to protect judicially enforceable natural rights (see 100 Yale Law Journal 1073). In any event, Biden's reliance upon Rosen's article is misplaced, as a reason for opposing Justice Brown's nomination. Brown denies that she is a judicial activist, and the leading case cited to prove she is a judicial activist (the San Remo Hotel case) proves no such thing. Moreover, I am not aware of any remarks by Justice Brown about the New Deal that aren't completely in line with what FDR's own friends and admirers said.

"Senate Democrats Receive Adult Advice" says Power Line. Apparently, they do not intend to heed it.