ConfirmThem

For many years, Senator Leahy and others have decried the poor treatment of President Clinton's circuit court nominees who languished before the Senate. When Clinton left office, there were, by my count, 64 circuit judges in place who were nominated by him and confirmed. This includes Roger Gregory who was recess appointed by Clinton on 1/18/01 just days before he left office. While attempting to offer an olive branch, President Bush later nominated Gregory who was later confirmed. Judge Gregory was really Clinton's guy and he has been serving since 1/18/01. Thus, I count him as a Clinton nominee since Gregory started serving as a circuit judge before Clinton left office.

Many Dems complain that the sixty-four (64) circuit court judges serving when Clinton left office is far short of what is fair. But let us see how the number of current Bush circuit court judges compares to Clinton's judges if Bush were to leave office today.

Circuit Clinton Bush

DC 3 3
1st 2 1
2nd 9 5
3rd 5 5
4th 5* 2
5th 4 5
6th 5 6
7th 3 2
8th 2 7
9th 14 7
10th 4 6
11th 4 1
Fed 4 2

Total 64 52

* Includes Roger L. Gregory as an appointment of Clinton.

This chart clearly shows that Clinton will far outpace Bush in circuit court nominees serving when he leaves office. Even if the Senate confirms 2 to 3 more circuit judges this year, Clinton will have appointed 15 to 20% more circuit court judges than Bush over an eight year period.

Since the Dems are all about fairness and equal treatment, I suggest that Bush immediately nominates candidates for all the remaining circuit court positions. Then, as a sign of reaching across the aisle, Bush should allow the Dems to pick any 12 circuit court seats that they want to fill. This is the only way to bring about equilibrium. Senator Leahy, I only wish that President Bush could be treated as poorly as President Clinton.

I just posted the following under the DC hearing item, writing that it's yet another reason why we need John McCain to be elected.

D.C.'s Gun Ban Gets Day in Court
Justices' Decision May Set Precedent In Interpreting the 2nd Amendment

By Robert Barnes
Washington Post Staff Writer
Sunday, March 16, 2008; A01

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District's handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment's meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

"This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,'' said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. "And that's why there's so much discussion on the original meaning of the Second Amendment.''

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

"The case has been structured so that they have to confront the threshold question," said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. "I think they have to come to grips with that."

The stakes are obviously high for the District, which passed the nation's strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.

The law's challengers -- security guard Dick Anthony Heller is the named party in the suit -- say the measure has been an abysmal failure at cutting crime or stanching the city's homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.

The city's lawyers argue that the Second Amendment does not provide an individual right and that, even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.

The case could be a revealing test of the court headed by Chief Justice John G. Roberts Jr. Roberts came to the bench saying justices should decide cases as narrowly as possible, but last year he was part of a slim majority that made bold breaks with the court's jurisprudence in cases both recent and old, on issues such as school integration and abortion.

Clues to the justices' interpretations of the Second Amendment are scant and cryptic, and Roberts said during his 2005 confirmation hearings that the last time the court considered the issue -- in 1939 -- it "sidestepped" the fundamental questions.

That is part of the reason that the outcome -- not expected until near the end of the court's term in late June -- will be so intriguing, said Suzanna Sherry, a law professor at Vanderbilt University.

"It is very rare that the justices write on a clean slate," she said. "In some ways, it gives them great freedom."

Levy and lawyers Alan Gura and Clark Neily were able to persuade the U.S. Court of Appeals for the District of Columbia Circuit last year to do what no other federal appeals court had ever done: strike down a local gun-control ordinance on Second Amendment grounds.

The amendment says that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,'' and all but one of the circuits that had considered the issue previously had interpreted it as providing a gun-ownership right related only to military service.

But Senior Judge Laurence H. Silberman, a conservative icon, wrote for a 2 to 1 panel that the amendment provides an individual right just as other provisions of the Bill of Rights do. And because handguns fall under the definition of "arms," he wrote, the District may not ban them.

The Supreme Court's endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars -- "against my political instincts," in the words of Harvard law professor Laurence H. Tribe -- have endorsed the individual-right view.

But even fundamental rights are subject to government restrictions, and whether the justices are ready to decide on the reasonableness of the District's ban could be the crucial question of the case.

The city received an unlikely lifeline from the Bush administration, which told the court that the amendment provides an individual right but that the appeals court erred in deciding that the District's ban was automatically unconstitutional.

"If adopted by this court," Solicitor General Paul D. Clement wrote in the government's brief, "such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns."

Clement said that the District's law may well be unconstitutional, but that the case should be returned to lower courts for "application of a proper standard of review" and to permit "Second Amendment doctrine to develop in an incremental and prudent fashion."

Gun rights supporters were furious about the government's position, and Vice President Cheney went so far as to join a friend-of-the-court brief that specifically rejects the administration's view. Levy said returning the case to lower courts would be a "death knell," and his team has urged the court to apply "strict scrutiny" to any government action that would restrict gun ownership.

Said Gura: "What we want to do is take prohibition off the table."

The case is complicated by the District's secondary argument that the Second Amendment is not implicated by legislation that applies only to the District of Columbia.

The challengers have received a broad array of political support, signs of the strength of the gun rights movement: More than 31 states and a majority of the House and Senate have signed friend-of-the-court briefs.

Among the presidential candidates, Republican Sen. John McCain signed on, while Democratic Sens. Barack Obama and Hillary Rodham Clinton did not. Both Democrats have looked for a middle ground, saying they believe the Second Amendment preserves an individual right, but one that is subject to government restrictions.

That position would seem popular. A Washington Post poll shows that 72 percent of the public believes the Constitution provides an individual right, but respondents were evenly split on whether it is more important to protect the rights of Americans to own guns or to control gun ownership.

Nearly 60 percent said they would support the kind of law in question.

But nationally, it is hard to find many laws as restrictive as the one in the District, partly because of the gun rights lobby's vigilance. More than 40 state constitutions have gun ownership guarantees. Maryland's is one of the few that does not.

As a result, it is difficult to know what gun-control legislation across the country would be at risk even if the Supreme Court upheld the D.C. Circuit's decision.

Levy said the next targets will be handgun laws in Chicago and New York City, although the court has never held that the Second Amendment is applicable to states. And one legal theory is that the provision is a restriction only against the federal government.

Both sides agree that the court's decision could send a powerful message beyond the District.

Tribe, whose support of the individual right is often cited by gun rights supporters, wrote an article in the Wall Street Journal recently that said the District's law could still be upheld and urged the court to decide the case narrowly.

But he acknowledged in an interview that the justices might "jump at the opportunity" to write broadly when they finally have a chance to put their mark "on a part of the Constitution that isn't already paved over with layer upon layer of judicial precedent."

Polling director Jon Cohen and researcher Madonna Lebling contributed to this report.

Here's commentary on the hoohaw over PClem's brief: http://www.scotusblog.com/wp/uncategorized/novak-clement-cheney-and-the-...

I'll spare ya the link to Dahlia's commentary, but it's up at Slate.

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

http://www.dailynews-record.com/opinion_details.php?AID=15612&CHID=36

"Although President Bush fumbled the initial nomination, he has now nominated Virginia state Supreme Court Justice Stephen Agee for a vacancy on the U.S. Court of Appeals for the 4th District. The court is headquartered in Richmond.
The court hears cases from federal courts in Virginia, West Virginia, Maryland, North Carolina and South Carolina. It has several vacancies, and needs more judges.

Justice Agee is clearly well-qualified for the post. He has served as a justice on the state Supreme Court since 2003 and was a judge on the Court of Appeals of Virginia from 2001 to 2003.

His name was on a list of five recommended jurists sent to the White House by Virginia Sens. John Warner and James Webb last year.

However, President Bush nominated an attorney not on the list, angering Sen. Webb, who said he would block the appointment. Later, for unrelated reasons, the first nominee withdrew his name from consideration.

Since both of the commonwealth's senators have endorsed Justice Agee, there should be no obstructions to a speedy hearing before the Senate Judiciary Committee and quick vote to confirm him in the Senate."

While Agee was on the Warner/Webb approval list, the question remains is it too little, too late. It's mid-March and there hasn't been any movement on 4th Circuit in nearly five years. I think the real question here is the Dems revulsion with this issues arising from Guantanamo Bay. They will run the clock out on any appointment to the 4th Circuit.

Allyson Duncan, who was the last nominee appointed in August, 2003 may well be the last 4th Circuit Court nominee Bush will get on this circuit. Why, we can't even get a NC nominee on the 4th Cirucit with 2 Republican Senators who back him. Let's also ignore the numerous Judical Emergencies that exist on this circuit. Five, count them five, vacancies on the 4th. Where's the outrage from the other Republican Senators, especially the Republican Senators from the 4th Circuit?

I think Agee will definitely be confirmed this year. Why?

1) He has the approval of both his homestate senators. That moves his nomination ahead of those of Kethledge, Murphy, Rosenstein, Stone and Smith.

2) He is considered a moderate conservative and not a movement conservative. For that reason alone, his nomination will leap-frog those of Keisler, Conrad and Matthews.

3) By confirming him, the Dems will appear reasonable. His confirmation will allow the Dems to act guiltless in the obstruction of the other Fourth Circuit nominees - "Oh, we would have loved to confirm more Fourth Circuit nominees, but President Bush needlessly refused to work with us to nominate moderate consensus nominees who could win easy bipartisan approval."

4) The Dems NEED to confirm as many "noncontroversial" Bush judicial nominees as possible to make sure that the Republicans in future senates don't use Bush's low confirmation numbers against them to filibuster or otherwise block some of Hillary's or Obama's COA nominees.

5) The token confirmation of Agee will not stop the Dems from taking control of the Fourth Circuit if a Dem is elected president this fall, and, as I noted before, will allow them to appear nonpartisan in the process.

Consequently, there is no doubt in my mind that Agee will get his hearing soon after Pratter is confirmed and will himself be confirmed BEFORE the annual August recess.

Will we get one? I'm hesitant about the idea of immediately filling the 2nd VA seat with a W/W pick until we see how they react to the first one, and that nomination would just end up leapfrogging the 3 mentioned above.

But there might be something to be said about nominating a 2nd W/W in a few months. If Bush is going to get his unprecedented favor returned (which is doubtful), its only going to be with a 'moderate' like the W/W 4.

According to Tom Goldstein at ScotusBlog, based on the Oral Argument, the Court broke down along traditional lines and Kennedy seemed to lean in favor of the Individual rights view and with the conservatives while all the liberals favored the collective view. Good News.

Also, today's opinion on the Washington Primary was interesting. Thomas wrote the 7-2 majority and Scalia dissented joined by Kennedy. Roberts concurred, joined by Alito.

I can't think of too many cases where Scalia and Thomas wrote duelling opinions and not just came down on different sides, which they have in the past.

And Scalia's dissent went after Roberts as well in a fairly tough manner. Roberts didn't exactly hold back, either.

All in all, it was interesting to see the 5 conservatives come down in 3 different opinions and it shows that they're ont all just clones, or that they all think alike.

By all accounts, Heller appears to be shaping up as a 5-4 victory for the individual rights' view of the 2nd amendment, although even if that is true the details of the opinion will matter a great deal. I was somewhat disappointed to read that Justice Souter was the most vigourous advocate for a "militia-only" view of the 2nd amendment. Without much of a basis, I had hoped that some remaining vestige of his flinty, individualistic, live-free-or-die New Hampshire character would assert itself. I guess there isn't any left.

Courtesy of How Appealing

http://www.tennessean.com/apps/pbcs.dll/article?AID=/20080314/NEWS02/803...

"A former Corrections Corporation of America manager is accusing the company's general counsel and federal judicial nominee Gus Puryear IV of overseeing a practice that produced misleading reports about safety incidents at its prisons.

Ronald T. Jones, who until last year worked as a senior manager in quality assurance at the Nashville-based prison operator, said that Puryear directed him and other staff to classify incidents such as escapes, unnatural deaths and disturbances as less serious to make its performance look better in reports to government agency clients. Reports prepared for internal use, meanwhile, included more details about the specific incidents, Jones said."

Let's just say that it should be obvious by now that Puryear is a dead duck. His nomination and that of Honaker need to be withdrawn ASAP. But knowing the Bush administration, I doubt that they will be. Sad to see two redstate district seats in Wyoming and Tennessee go down the tubes.

I too was disappointed in Souter's questions from the bench. I thought he may join with the conservatives on this one, or at least write an acceptable concurrence/dissent.

I any eveny, it looks like we have five votes.

Kennedy was actually the strongest voice on the gun side today

He all but overruled Miller from the bench in an attempt to help Gura out.

Earlier this month, on the campaign trail in Ohio, Obama mentioned Earl Warren, who served as governor of California before becoming chief justice, as a model of the kind of justice he hoped to appoint. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said. He praised Warren for understanding that segregation was wrong because of the stigma it attached to blacks, rather than because of the precise nature of its sociological impact.

Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. (By contrast, the Roberts court is composed of nine former judges.)

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

While writing as a layman and recognizing the pride of place of SCOTUS blog, I will say that having heard the last few minutes of the oral argument on C-SPAN, Dellinger certainly didn't acquit himself well. Roberts and Scalia sliced and diced him (what a quip from Scalia re reaching for one's bedside glasses!), while Alito bore in with very practical questions (is there any indication that D.C. had anything to say re self defense).

It seems to me that Dellinger was following one argument--dsigned to suck up to swing vote Kennedy--while the DC press conference afterward stressed that htis is a safety issue. Hello, what about a constitutional issue?!

Your analysis doesn't seem to address the number of available COA positions during any one presidency (this variable depends on the number of COA resignations, retirements,and deaths during the presidency, as well as how many new COA seats are created by Congress at the same time). This variable explains some of the difference in Clinton/Bush numbers.

That said, Dem obstruction is the major reason for the lower Bush numbers. We all know that Estrada, Kuhl, Pickering, Myers, Saad, Boyle, Haynes, and most of the present Bush nominees should have already become judges. It should also be remembered, however, that Clinton's numbers were also kept artificially low by the Republican obstruction in the 105th and 106th Senates.

Certainly, there will be normal variables with death, retirement, resignations and even elevations during a President's 4 or 8 year term. The unpredictable variable is new COA seats created by Congress. With the high number of COA judges taking "Senior Status," the need for new seats has decreased dramatically during recent years. In fact, many commentators are taking notice of the high costs associated with senior judiciary, their staff and cost of facilities.

Nevertheless, I would expect that both Bush and Clinton during an eight year period to nominate and put in place approximately the same number of COA judges, give or take about 5%. As set forth in my post above No. 1, Clinton's legacy was 64 COA judges when he left office and Bush's legacy will be 52 to 54, a 15 to 20% difference. This difference cannot be explained by new COA seats that Clinton was entitled to fill. By the way, Clinton currently has 60 still serving and Bush has 52. This is an outrage.

Currently, there are 15 COA vacancies which includes 1 future vacancy that can be filled by the end of the year. So far this year during the first quarter, the Senate has confirmed 0 judges, while it confirmed 40 last year. Don't hold your breath on Agee, although he is the most confirmable.

This year the Senate will confirm no more than 2 COA judges and 8 to 10 DC judges, as the Senate slow walks the nominees. Senator Leahy, who does a great impression of Tim Conway, will continue to fail to show for half of the hearings and business meetings.

Is Leahy just too darn old to handle the job as chairman? Do you know how many hearings and meetings he missed last year? Is his health the reason there have been few or no hearings and business meetings as of late?

Who do you think will be the CCA confirmations this year and when do you think they will be confirmed?

I think the Senate will confirm Haynes to the 5th in April and Pratter to the 3rd in June. The Senate doesn't care about the 5th as it is extremely conservative. The Senate will confirm Pratter as a good will gesture to Specter and to get him off Leahy's back.

Both are women and that is extremely important in this election year. Specter picked up on this with the Pratter/Short nominations. Hillary will not vote against a woman this year and tick off the female voters. Other Dem. female Senators will do likewise.

I have observed this factor for some time now. With the exception of Mary Donohue [withdrawn] and Hayes [pending], the Senate last year confirmed all 11 [2/9] women nominated prior to 11/15/07.

The White House just recently changed its ways by nominating more women and minorites as well as Agee from the preapproved W/W list. Hillary and Barack will not allow the Dems to vote down a woman or minority nominee this year. If the WH wants a third COA nominee confirmed this year, I suggest a woman or minority for the 4th.