Senator Obama v. The Father of the Bill of Rights
By AndrewHyman Posted in Analysis and Predictions — Comments (15) / Email this page » / Leave a comment »
Do you know who the "Father of the Bill of Rights" was? Everyone knows that George Washington was the "Father of Our Country." And James Madison is renowned as the "Father of the Constitution." But who was the "Father of the Bill of Rights"?
James Madison was instrumental in getting the Bill of Rights adopted, but many historians give primary credit to George Mason, who developed the ideas in the Bill of Rights, and agitated for their inclusion in the Constitution. Mason wrote
the Virginia Declaration of Rights, refused to sign the original Constitution in part because it lacked such a statement, and urged ratifying states to insist on it. The Bill of Rights is based on Mason's earlier Virginia Declaration of Rights.
On May 8, presidential candidate Barack Obama described how judges should interpret the Bill of Rights:
What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. And, in those circumstances, what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.
In contrast, George Mason said (in 1787) that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course" (emphasis added).
Ed Whelan recently pointed out at Bench Memos that "in cases in which a statute is being challenged as violative of the Constitution, a justice who ultimately finds it unclear whether the statute in fact violates the Constitution ought—under principles of judicial restraint—to let the statute stand." That's how the framers meant the Bill of Rights to be applied, and it's really the only way to preserve government by the people, rather than government by judiciary.
Obama and others often say that if the Constitution and Bill of Rights were interpreted with restraint, then the Court never would have issued an opinioin like Brown v. Board of Education. Obama said it again on May 8. But it's not true. In his book "The Tempting of America" (page 82), Robert Bork explained as follows:
By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.
Brown was not a close case.
withdraw R. Conrad and Matthews?
by Damico
If it's now time for the Bush administration to be realistic with its nominees, perhaps that means it needs to consider withdrawing Robert Conrad and Steve Matthews? There most certainly are more acceptable potential nominees out there - nominees both conservative and acceptable to the Dems.
For the South Carolina seat, we already know Kittredge would likely be confirmable and would have the support of both Senators.
What about North Carolina? How about district court Judges Louise Flanagan, Frank Whitney, or James Devers? Or Duke law professor Curtis Bradley? Or UNC law professor Melissa Saunders?
If we have to be realistic to get our confirmations, then let's do it now.
Damico
by jtp7
Unfortunately, I think it is too late to nominate any more new people, particularly to the 4th CCA. The ABA will take 5 months to process any new people accept for any Dem nominee like White who will get hers in 2 weeks.
jpt7
by Mose
I think you are probably correct the the probability of getting any new circuit level nominees confirmed are low, but there would likely be a benefit to making additional district court nominations. By my count, there are 16 district court vacancies currently without a nominee. Making nominations to the vacant district court seats will (hopefully) create pressure on Leahy to continue processing these nominations. The President needs to keep the pipeline full.
Haven't seen it mentioned yet, so I'll note that 2nd Circuit Judge Straub has announced he will take senior status on July 16, 2008. He appears to occupy a "New York" seat on the 2nd Circuit and was nominated by Pres. Clinton in 1998.
Interesting factoid from Wiki: In January 2006, Straub was one of the three judges selected to hear National Abortion Federation v. Gonzales, 437 F.3d 278, one of the cases later folded into and resolved by Gonzales v. Carhart. The Second Circuit thereby became one of three circuits to uphold district court rulings against the constitutionality of the Partial Birth Abortion Ban Act of 2003. Out of the nine circuit court judges who ruled on this issue, Straub was the only one to dissent, voting to reverse the district court and uphold the Act.
I suppose it would be pointless for Pres. Bush to nominate anyone to this seat, but it will present a delicate nomination issue if McCain wins (finding a decent nominee that passes muster with Schumer and Clinton).
The reason Bush needs to make nominations to all open seats bfore he leaves is statistical. In the 110th Congress, there have been 21 openings (including Straub's), but only 18 nominations. Bush so far has not nominated anybody to Trotter's 9th Circuit seat, Straub's 2nd Circuit seat or the 12th D.C. Circuit/29th 9th Circuit seat.
If Bush leaves office with just the current 7 confirmed nominations (Hardiman, Livingston, Southwick, Smith, Elrod, Tinder and Haynes), here is how the statistics would look with and without nominees for the three remaining seats:
1) with no new nominees: 7 confirmations out of 18 nominations, or a 39% COA confirmation rate.
2) with 3 new nominees: 7 confirmations out of 21 nominations, or a 33% confirmation rate.
While both numbers are awful, a 33% gives better spin than a 39%.
In January 2007, I predicted Bush would get a 50-55% COA confirmation rate for the 110th Congress. If Agee, Kethledge, White and Glen Conrad get confirmed, Bush will end up with either a 61% or 52% confirmation rate depending on more nominations:
1) with no new nominees: 11 confirmations out of 18 nominations, or a 61% COA confirmation rate.
2) with 3 new nominees: 11 confirmations out of 21 nominations, or a 52% COA confirmation rate.
The 52% number will give better spin in the 111th Congress and will act as a better reason to block potentially liberal Obama nominations.
It should be noted that Clinton nominated 9 people for COA judgeships in 2000, 2 of them in October just before the election.
The only problem I see is maybe a nomination to the D.C. Circuit/9th Circuit seat. I'm not sure how that would work since that seat won't be explicitly available to fill until January 21, 2009. Maybe McCain could openly support the nominee as his choice as well.
Steven Agee on fast track to the 4th Circuit
by 7th Heaven
Steven Agee (VA) received the ABA rating of Well Qualified (1 Absention). He was nominated on 3/13, a mere two months ago. He is scheduled for an Executive Business Meeting before the SJC on Thursday, 5/15 at 10:00 a.m. rather than the previously scheduled time of 3:30 p.m. Leahy is moving up the time to get him through the pipeline.
Helene White, a 6th Circuit nominee, has yet to be rated by the ABA. Has anyone heard the scoop on why her hearing before the SJC lst week went into a closed session? Does she have a tax problem or something worse? Any 6th Circuit fans or others out there with any update on this topic?
Paul Clement available after June 2
by cubsfan
The case issue is described by the court as follows:
"Does California’s statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?"
The case was originally heard in early March. Speculation is that the court will side with the plaintiffs and hold that the right to same-sex marraige protected by the CA constitution.
I would think this is going to get some play in the Presidential race either way.
#8: Homosexual marriage case
by Outsider
Just a thought on jurisdiction. It would appear that SCOTUS has authority to determine whether the California statute violates the United States Constitution, NOT the California constitution. The question of whether it violates the Cal. Con. would be a state matter, as I see it. Comments?
Outsider
by BoBo
If the case is settled based solely on the California constitution, then the U.S. Supreme Court has no jurisdiction and cannot review the case.
In addition, at the present time, the U.S. Constitution does not directly address marriage law, only inferentially with the equal protection clause of the 14th amendment. So I doubt that there is any constitutional issue the Supreme Court could review.
The only marriage law right now that is federal that could be adjudicated is DOMA, which if overturned or not would not void same-sex marriage if a state allows it.
I think social conservatives need to realize that the U.S. Constitution without a marriage amendment DOES allow same-sex marriage if a state so desires it.
More on Clement retirement
by BoBo
http://www.reuters.com/article/politicsNews/idUSN1453130220080514
"A number of Bush appointees have said they are leaving the Justice Department ahead of the November presidential election and the change in administration in January.
"Now that oral arguments for the Supreme Court term are finished, departing in June gives him the chance to spend some time with his family for an entire summer when his three sons are not in school," a department spokesman said, adding that Clement has no specific plans on what he will do next."
Even more on Clement
by BoBo
http://blogs.wsj.com/law/2008/05/14/solicitor-general-paul-clement-to-re...
"Prior to his 2005 confirmation, Clement (Georgetown, Harvard Law) served for over four years as the principal deputy Solicitor General, and during that period served for nearly a year as Acting Solicitor General. Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885, the press release says."
Solicitor General
by Damico
So who becomes acting Solicitor General upon Clement's resignation? Who is second in command in the SG's office?
Gregory Garre is the #2 at OSG
by Mose
Gregory Garre is the principal deputy solicitor general. The PDSG, in the absence or disqualification of the SG, fills in at the SG. Garre was appointed in 2005.
Prior to his appointed, Garre headed Hogan & Hartson's Supreme Court and appellate practice. Garre previously served as an assistant to the solicitor general of the United States from September 2000 to July 2004. Before first joining the Office of the Solicitor General in 2000, Garre was a partner at Hogan & Hartson, where from 1993 to 2000 he represented state governments, corporations, trade associations, and individuals on a wide variety of appellate matters in the Supreme Court and federal and state courts of appeals.
Before he first joined Hogan & Hartson, Garre was a law clerk for the late Honorable William H. Rehnquist, Chief Justice of the United States, and The Honorable Anthony J. Scirica, Chief Judge of the U.S. Court of Appeals for the Third Circuit.
Sounds like a fairly impressive guy.
http://legaltimes.typepad.com/blt/2008/05/bush-sending-co.html
"Bush Sending Consensus Nominees to Senate:
Reality is setting in. With time dwindling for President George W. Bush to get his nominees through, he’s looking for compromise. Glen Conrad is just the latest example.
Last Thursday, Bush tapped Conrad, a U.S. district judge in Virginia’s Western District, to fill one of the remaining Virginia vacancies on the U.S. Court of Appeals for the 4th Circuit. Conrad is the fifth appellate nominee this year and follows several others announced in breakthrough deals between the White House and the Senate.
Even Curt Levey of the conservative Committee for Justice acknowledges that tapping Conrad from a bipartisan list drawn up by Virginia Sens. Jim Webb (D) and John Warner (R) made sense. “It’s so little time left that you really needed to get someone from the Webb-Warner list,” Levey says.
Also last week, two consensus candidates for the 6th Circuit -- Michigan Court of Appeals Judge Helene White and Raymond Kethledge, a corporate defense lawyer at Bush Seyferth Kethledge & Paige in Troy, Mich. -- had their confirmation hearings. Virginia Supreme Court Justice G. Steven Agee, another nominee for the 4th Circuit, had his hearing May 1. And Catharina Haynes, a former Baker Botts partner in Dallas, was confirmed April 10 for a 5th Circuit seat.
“The White House is being realistic knowing that it’s the end of the [presidential] term, and they are not going to get their people,” says Carl Tobias, a University of Richmond Law School professor. “Maybe it’s better to get somebody than nobody.”
Republicans, however, are still miffed that their preferred nominees are not getting hearings. Specifically, they point to Chief Judge Robert Conrad of the Western District of North Carolina and Steven Matthews of the Columbia, S.C., firm of Haynesworth Sinkler Boyd — both nominees for the 4th Circuit -- and Sidley Austin partner Peter Keisler — a nominee for the D.C. Circuit.
They have kept up the pressure on Democrats by threatening to stall legislation. One of those standoffs led Majority Leader Harry Reid (D-Nev.) to announce on April 15 that the Senate would approve three more circuit court nominees by Memorial Day.
But despite what seems like a thaw in the cold war over nominees, Levey predicts more fights after the Memorial Day recess. “There’s still a lot of tension there,” he says."