ConfirmThem

I am all for judicial pay raises, but I think the difference between the salaries of district, court of appeals and Supreme Court judges should be greater for two reasons:

1) in order to accurately represent the ascending importance of respective judgeships. Under Leahy's plan, a district court judge would make just $14,900 less than a COA judge, and an Associate Supreme Court Justice would make just $13,700 less the Chief Justice. Who here wants to argue that COA judges are less important than district judges, or that the Chief Justice is less important the associate justices? Remember, he is legally the administrator of the federal judiciary. The others aren't.

2) to encourage jurists to hone their legal skills in order to be considered for possible elevation. Why should a weak or mediocre district court judge seek more education or judicial expertise if they can slide by without any new professional development but essentially the same salary as a court of appeals judge? I think financial ambition could be used as an incentive to encourage district court judges to learn more if they thought there was a new financial opportunity they could exploit at the next level.

"At least have the decency to reject nominees promptly in committee or on the Senate floor. Please don't leave them dangling forever. Senators get straightforward decisions from voters every six years, like clockwork. Why not give straightforward and timely decisions to judicial nominees?"

Be honest, did the Republicans really treat Clinton's judicial nominees honestly and decently? Don't get me wrong, I wouldn't have wanted most of them confirmed, but many of them were denied hearings, committee votes and floor votes for no apparent reason other than the fact that Clinton nominated them. This is just politics as usual. As far as I can tell, the only way this madness will stop is if one side makes a unilateral move. That means either Bush naming more consensus nominees or the Dems approving more judges whose ideology they despise.

Bobo, using the old "two wrongs make a right" approach can only get you so far. It's been more than seven years since GW Bush was elected, and I think Leahy has already gotten more than enough revenge for the way some Clinton nominees were treated.

Anyway, if Leahy agrees to new ground rules for decent treatment of nominees, then the Dems would stand to gain enormously if they win the White House in 2008.

has mentioned the "Thurmond Rule", you have to wonder how many different "Leahy Rules" we may see invoked in the future. He is trying to do more damage in two years of off-party Senate control than the GOP did in six with Clinton.

By turning it into a numbers game to "prove" his "fairness", he makes it 100x more insidious than anything done under Clinton. Examples:
- Bush starts out his "New Tone" Presidency by nominating Roger Gregory to fill the seat to which Clinton recess-appointed him. So this counts as a successful Bush nominee.
- I can't recall the name, but I believe Bush appointed another northeastern Democrat right out of the gate. Chalk up another in the Bush column.
- Susan Neilson was blocked for four years, and then confirmed while she was literally on her deathbed. In retrospect this was a completely cynical move by the Democrats so that they could get credit for confirming yet another Bush right-wing nutcase for a lifetime appointment.
- At least two of the blocked Clinton nominees were appointed around the time of the Bush v Gore election. Yet they of course count as part of the years of obstruction of Clinton nominees by the evil Republicans.

When you look at "real" numbers vs "raw" numbers, it's clear that, at a minimum:
- 2 Bush nominees really should count as Clinton nominees. (+2 confirmed for WJC and -2 confirmed for GWB)
- 2 Clinton's nominees were of the lame duck variety and shouldn't count as Republican obstruction. (-2 blocked for C)
- 1 Bush nominee shouldn't count as being confirmed. (-1 confirmed for B)
That's a total shift of *7* that SHOULD affect Leahy's numbers. And there are probably other examples. These are ones that are obvious to a remote follower of it like me. People closer to it like many of you could probably cite others.

As long as one side keeps saying that it is the other side that should do all the compromising, I don't think so. Although I think there is almost no incentive for either to act this way so late in the game, I think both Bush and the Dems should attempt to work constructively together to get the maximum number of judges confirmed in Bush's last year. I see four ways that this could be done starting in January:

1) Bush could withdraw Getchell and name two Fourth Circuit nominees off of the Warner/Webb list.

2) Bush could withdraw Rosenstein and name a Republican-appointed district court judge from Maryland in his place.

3) Bush could offer a Kethledge/White package deal to Levin and Stabenow.

4) Bush could offer a Keisler/Kagan deal for the 11th and 12th seats on the D.C. Circuit.

These exchanges could be premised upon quick confirmations by the Democrats. In the Michigan and D.C. Circuit exchange deals, the Dems would also have to promise that the conservative nominees would be confirmed BEFORE the liberal ones.

is something along the lines that was proposed when Frist was in power.

The President nominates someone within 90 days of the opening coming up.

The SJC gives the person a hearing within 45 days of their ABA hearing.

The Senate votes within 30 days of approval by the SJC.

If the SJC or Senate doesn't vote then the nominee is seated.

Now, the way to make it work is that you have it take effect as of January 1st, 2018.

That way, we have no idea who its going to help.

Oz

Read my most recent story, "No speech from Romney is a reason to avoid him" on First Cut Politics

In addition to what Oz is suggesting, the Senate needs to clean up or eliminate all of its internal rules and "traditions" which effectively provide tools for obstruction of nominees: blue slips, holds, cloture votes, "Thurmond rule" etc.

There is no incentive for the Senate to do as you suggest. After decades upon decades of use, both Republicans and Democrats know that the traditions you suggest revising or eliminating work very effectively in controlling the Senate's agenda. People in both parties would not want to limit their options if they are in the majority, even the present minority party. After all that has transpired under Bush, I am sure McConnell and Lott would love to hold future Democrat judicial nominees hostage using the techniques that you wish to dissolve now.

I agree to some extent with the compromise proposals BoBo puts forth, but with the following caveat: I have no illusions that they will work. The leftist demogogues who control the Judiciary Committee and the Senate leadership are wholly and irrevocably committed to delay, obstruction and destuction of most of Bush's CCA nominees. Nothing will change this as they near their 8-year finish line. Nevertheless, the effort should be made, at least to expose their hypocrisy and duplicity.

1. Withdraw Getchell and nominate 2 from the Warner-Webb list. I predict that the Dems will say that there's not enough time left to process them. Webb may well give pro forma support to cover his rear, while Leahy and Schumer do the dirty work.

2 Michigan: the Kethledge-White package deal sounds feasible and should be tried. It gives Levin and Stabenow a large part of what they've demanded for years: the martyred Clinton nominee Helene White. The 6th will be sufficiently conservative that she can't do too much damage in the near future. But I doubt Levin and Stabenow will go for a deal at this late date.

3. By no means nominate Kagan to D.C. She is far too dangerous SCOTUS material, so why give her this huge boost? Besides, the 12th seat is supposed to be unnecessary and virtually kaput. Keep trying the Court Security Kyl-Feinstein deal if that's still achievable.

4. What can we offer for Conrad and Matthews (very improbable) on the 4th? Probably nothing that will work. The only course I can see is the attempt a trade for a few billion in pork domestic spending.

5. Feinstein (but not Boxer) might be amenable to some deal on the Trott seat. Maybe let her pick a moderate Democrat as a further enticement for a Keisler confirmation. Unlikely, but even a Feinstein moderate would be an improvement on the laughable 9th Circus (er...Circuit).

6. On the 3rd, Pratter is a done deal and Stone is virtually hopeless, so no deal there. The 1st is also hopeless.

The fatal problem with all this is that there is so little time left to process and confirm nominees after Haynes and Pratter are finished (and Dems will drag those out as long as possible--well into March or April at least). And again, let's have no illusions that the partisan leftists who run the Senate and the Judiciary Committee will cooperate at all.

I wish they would just formally write these "traditions" into Senate rules so there is no argument about what it actually is. I honestly have no real quibble with this practice as long as it is enforeced both ways. During a Hillary presidency, it should in practice prevent her from putting Reinhardt clones into states with two GOP senators (persumably conservative states), like Alabama, Mississippi, and Texas. That makes sense to me. Likewise, it prevents Bush from installing conservative flamethrowers into Cali, NY, NJ, etc. To me that is fair. Lastly, if both homestate senators support a nominee to "their" CCA seat that a president of their party nominates, that should also be honored and not mettled with. This would be the Southwick clause to my Blue Slip policy. We cannot have our cake and eat it too folks. This maddness has to end. Compromise is the only way to prevent this process from sinking to even further lows.

The NJ Senators said before that Noel Hillman had their approval for that CCA seat. Aside from all the conspiracy talk about him and Sandy Burglar, he sounds good to me and is as good as it will get in a state known as the arm pit of America. No offense to any of you Garden Staters but I really just hate everything about that stupid state to my east.

I agree with you that nothing can happen to modify or eliminate some of the Senate traditions unless both parties see it in their best interest to do so. Until Repubs give the Dems a taste of their own medicine for awhile, Dems will not want to compromise. If we get a Dem president in 08, and Senate Republicans use the same tactics that Dems have pulled recently, we should have an olive branch extended by, oh, say 2010. Maybe. I'm not sure the Republicans have it in them to sink as low as the Dems have, however.

Supreme Court Will Hear D.C. Guns Case

Nov 20 03:23 PM US/Eastern
By MARK SHERMAN
Associated Press Writer 10 Comments

WASHINGTON (AP) - The Supreme Court said Tuesday it will decide whether the District of Columbia can ban handguns, a case that could produce the most in-depth examination of the constitutional right to "keep and bear arms" in nearly 70 years.
The justices' decision to hear the case could make the divisive debate over guns an issue in the 2008 presidential and congressional elections.

The government of Washington, D.C., is asking the court to uphold its 31-year ban on handgun ownership in the face of a federal appeals court ruling that struck down the ban as incompatible with the Second Amendment. Tuesday's announcement was widely expected, especially after both the District and the man who challenged the handgun ban asked for the high court review.

The main issue before the justices is whether the Second Amendment of the Constitution protects an individual's right to own guns or instead merely sets forth the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.

Gun-control advocates say the Second amendment was intended to insure that states could maintain militias, a response to 18th century fears of an all-powerful national government. Gun rights proponents contend the amendment gives individuals the right to keep guns for private uses, including self-defense.

Alan Gura, a lawyer for Washington residents who challenged the ban, said he was pleased that the justices were considering the case.

"We believe the Supreme Court will acknowledge that, while the use of guns can be regulated, a complete prohibition on all functional firearms is too extreme," Gura said. "It's time to end this unconstitutional disaster. It's time to restore a basic freedom to all Washington residents."

Wayne LaPierre, executive vice president of the National Rifle Association, noted that 44 state constitutions contain some form of gun rights, which are not affected by the court's consideration of Washington's restrictions. "The American people know this is an individual right the way they know that water quenches their thirst," LaPierre said. "The Second Amendment allows no line to be drawn between individuals and their firearms."

Paul Helmke, president of the Brady Center to Prevent Gun Violence, said the Supreme Court should "reverse a clearly erroneous decision and make it clear that the Constitution does not prevent communities from having the gun laws they believe are needed to protect public safety."

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. That decision supported the collective rights view, but did not squarely answer the question in the view of many constitutional scholars. Chief Justice John Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."

The Second Amendment reads: "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."

Washington banned handguns in 1976, saying it was designed to reduce violent crime in the nation's capital.

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

The District is making several arguments in defense of the restriction, including claiming that the Second Amendment involves militia service. It also said the ban is constitutional because it limits the choice of firearms, but does not prohibit residents from owning any guns at all. Rifles and shotguns are legal, if kept under lock or disassembled. Businesses may have guns for protection.

Chicago has a similar handgun ban, but few other gun-control laws are as strict as the District's.

Four states—Hawaii, Illinois, Maryland and New York—urged the Supreme Court to take the case because broad application of the appeals court ruling would threaten "all federal and state laws restricting access to firearms."

Dick Anthony Heller, 65, an armed security guard, sued the District after it rejected his application to keep a handgun at his home—about a mile from the court—for protection.

The laws in question in the case do not "merely regulate the possession of firearms," Heller said. Instead, they "amount to a complete prohibition of the possession of all functional firearms within the home."

If the Second Amendment gives individuals the right to have guns, "the laws must yield," he said.

Opponents say the ban plainly has not worked because guns still are readily available, through legal and illegal means. Although the city's homicide rate has declined dramatically since peaking in the early 1990s, Washington still ranks among the nation's highest murder cities, with 169 killings in 2006.

The U.S. Court Appeals for the District of Columbia Circuit ruled 2-1 for Heller in March. Judge Laurence Silberman said reasonable regulations still could be permitted, but said the ban went too far.

The Bush administration, which has endorsed individual gun-ownership rights, has yet to weigh in on this case.

Arguments will be heard early next year.

The case is District of Columbia v. Heller, 07-290.

From Orin Kerr, one of Kennedy's former law clerks, over at the Volokh Conspiracy:

http://volokh.com/archives/archive_2007_11_18-2007_11_24.shtml#119558850...

"What is Justice Kennedy likely to do in the Second Amendment case the Court has granted?

As a general rule, Justice Kennedy's view of the protections afforded by the Bill of Rights is that they apply broadly but often yield to competing interests. If the question is whether a constitutional protection applies in an abstract sense to a new set of facts, Justice Kennedy is often inclined to answer that question in the affirmative. On the other hand, Kennedy is also willing to find that the right gives way to competing governmenet interests such as law enforcement needs, security, finality, etc. (These are obviously enormous oversimplifications, but I think it's a pretty good first cut.)

What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation."

http://missouripulse.com/production/

Read the second item down on this blog.

http://www.huffingtonpost.com/cristobal-joshua-alex/the-rise-of-the-fede...

"Stacking the federal courts with right-wing ideologues is drastically undermining the laws as we know them. Recall last term's decision in Ledbetter in which the 5-4 majority of the Supreme Court held that Ms. Ledbetter's Title VII suit was time barred because she didn't file her complaint within 180 days of the decision to pay her less than her male counterparts. Never mind that Ms. Ledbetter had no way of knowing that she was being discriminated against until she received an anonymous note after years of receiving lesser pay.

So, who is leading the charge in pushing right-wing appointments? A close look at recent appointments shows that the Federalist Society is at the center of these efforts. According to People for the American Way, "since its inception, the Federalist Society has played a key role in advancing the right-wing agenda. As an ideological proving ground for ultra-conservative activists, lawyers, and scholars, the Federalist Society has long served as a valuable professional network for those on the Right..." And what a network it is."

the real deception on Leahy's part is trying to use vacancy rate as a measure (as well as comparing years out of sequence, like 1995 with 2007), when he is basically blocking 10-15 potential judges in the seats that he won't allow to be created until Bush leaves office. with a greater population than 8 years ago, there is a greater caseload, and X% vacant in 1999-2000 is not equivalent to that same X% in 2007-8. So in effect he is blocking TWICE as many judges, the not-yet-created ones, AND the ones he wants to keep open to make it "equal". and of course the Republicans, although not acting on many (several of which, as you note, were nominated far too late for any realistic hope of confirmation), DID act on a very reasonable 16 Clinton nominees, a far cry from the 5 (2-3 of which should have been confirmed LAST year, like the first dozen district court nominees Leahy takes credit for this year) the Democrats have deigned to confirm. (that includes Gregory, who in an honest analysis should count in Clinton's column, as you note; if the 2nd judge you're talking about is Barrington Parker (2nd CCA), though, he's fairly counted in Bush's column, as is Nielson, so I disagree there). CONFIRMATIONS is the only fair comparison, not percentages. Though if he counted those to-be-created seats which he is holding hostage, the percentages would work out to be fair enough.

It could well be the case re AK. Half a loaf? A little bit pregnant (woops, that gets into Roe territory, doesn't it?).

By the way, would you please let me know how I can order my own super duper crystal ball. I probably will opt instead for the Aragorn 5.5 Palantir!