ConfirmThem

Posted at 11:54pm on May 15, 2008 Breaking News....

By AndrewHyman

This just in from California: the state supreme court has just decided that the words "man" and "woman" each apply equally to people of both sexes, and are therefore completely interchangeable words. Any non-compliant state government document shall be burned forthwith and post haste.

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Posted at 2:52pm on May 12, 2008 Senator Obama v. The Father of the Bill of Rights

By AndrewHyman

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.

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Posted at 11:22pm on May 7, 2008 Oliver Wendell Holmes v. Louis Brandeis

By AndrewHyman

Earlier today, I was reading over John McCain's excellent speech in 1987 supporting the Bork nomination (hat tip to Powerline). After McCain's speech, Senator Lloyd Bentsen explained his opposition to the Bork nomination, and Bentsen said: "I happen to agree with a former Supreme Court Justice named Louis Brandeis that the makers of the Constitution 'conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men.'" But did Bentsen really understand what Brandeis was actually saying? I doubt it. Even nowadays, this quote from Brandeis is often cited (by people like Senator Biden) as a reason to obstruct and hound and filibuster judicial nominees. Here's what Brandeis said in his 1928 dissent in Olmstead v. United States:

They [the framers] conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. (emphasis added)

Brandeis didn't mean that judges have discretion to constitutionally protect wife-beating, abortion, and other harmful acts that are performed in private.

MORE BELOW THE FOLD

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Posted at 4:33am on May 4, 2008 Three Cheers for Bernard Amyot

By AndrewHyman

Who, you ask, is Bernard Amyot? He's president of the Canadian Bar Association. And Canada is getting ready for only its second-ever public hearing to feature a Supreme Court nominee. According to Amyot, "A judge's personal beliefs should be off limits." Here's an extended excerpt from Amyot's May 4 column in the Toronto Star:

Our concern is that the partisan nature of Parliament lends itself to the demonstration of political agendas. Questions about personal opinions or prior writings can taint the judiciary by giving Canadians the wrong impression – that courts prejudge cases based on personal, partisan views, and that judges are beholden to political parties or the government that appointed them.

Canadians must be secure in the knowledge that judges decide cases after they hear the arguments presented to them, with impartiality and integrity and applying the relevant law.
The purpose of any nomination hearing should be to give Canadians an opportunity to get acquainted with their new Supreme Court justice. An introduction. Not a grilling. Not second-guessing. The event must be conducted respectfully, professionally and with civility.

The questions should be subject to a publicly available protocol that would outline the kind of questions appropriately asked of a new justice – questions presenting the person while maintaining the professionalism and integrity of the position, the court and the justice system.

For example, questions about the candidate's approach to judging, their language abilities or their knowledge of the common law, civil law and indigenous legal systems would be appropriate. On the other hand, criticism of past judgments, questions on issues that might come before the court, on personal beliefs or preferences that intrude on the candidate's privacy or dignity would be inappropriate.

It is imperative that partisanship be left out of the process and the right balance of transparency and openness results in an excellent appointment.

Demanding that a nominee will decide cases according to the preferences of individual members of parliament would be inappropriate.

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Posted at 2:15pm on Apr. 25, 2008 Fight, Fight, Fight

By Quin

That's what I recommend in my column today (here) at the Washington Examiner. Notice the poll numbers. It's incredible to me that we keep finding ways to lose.

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Posted at 11:08pm on Apr. 22, 2008 Ledbetter Nonsense From PFAW

By AndrewHyman

People for the American Way (PFAW) is currently running radio ads against Sen. Norm Coleman because Coleman helped confirm Justice Alito, who in turn later wrote the Supreme Court’s opinion in Ledbetter v. Goodyear.

The truth is that the Court’s Ledbetter decision was perfectly reasonable. It was a case of statutory construction, and so Congress is free to change the statute whenever Congress wants. In fact, the Washington Post is reporting today that Congress may do so imminently (and President Bush may veto).

The Ledbetter case involved equal pay for women. Obviously, gender disrimination should be (and is) illegal. The problem involves the 180-day statute of limitations. The Supreme Court has interpreted it to run from the initial discriminatory pay decision, rather than from each subsequent paycheck. If it ran from each paycheck, then of course the statute of limitations would be basically meaningless.

In my opinion, there would be no harm if Congress were to amend the statute simply to say that the 180 days runs from when the victim reasonably could have known that the pay decision had been discriminatorily made. But of course the Democrats want to gut the statute of limitations entirely, and demagogue the issue during the upcoming presidential campaign, so don't expect a rational resolution of this matter any time soon.

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Posted at 8:48pm on Apr. 21, 2008 Santorum, Harrison, Obama and Clinton on Judicial Nominees

By AndrewHyman

Rick Santorum wrote this today:

Many conservatives have given McCain poor marks for his involvement in the Gang of 14. I was in leadership pushing hard for a showdown with the Democrats on using the "Constitutional Option" to end their filibuster of judicial nominations. The Gang of 14 broke the impasse, and it probably was for the best. I was the one counting votes on that issue, and I was much less certain of success than others. In the end, the Gang deal resulted in numerous confirmations of qualified conservative jurists.

On judges, McCain has repeatedly made clear that he will, as his Web site states, "only nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat." Sounds good to me.

Also, Marion Edwyn Harrison is skeptical about SCOTUS vacancies this year, so the next president will probably have a lot of nominating to do.

In 2005, while filibustering the Alito nomination, Sen. Barack Obama explained what kind of judges he would appoint; Obama gave Democrats a "guarantee that the judges who are appointed to the Supreme Court are judges that reflect our values." In other words, judges who will impose their values on the country. What ever happened to judges reflecting what's in the Constitution and laws that have been duly enacted by will of the people?

And Senator Clinton has lamented constitutional limits on federal power: "The next time I consider school safety legislation, should I wonder whether school safety is 'truly national' or 'truly local'?" Of course not Senator, if you're elected then you get to tell states and localities to do whatever you say; you can implement whatever values you want. Just ask Sen. Obama. Both of these Senators have sought to convert the judicial nomination process into partisan warfare.

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Posted at 3:55pm on Apr. 17, 2008 Justice Stevens Says the Fifth Amendment is Unconstitutional

By AndrewHyman

In 1976, Justice Stevens wrote:

The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases.

But this week, he wrote:

I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents "the pointless and needless extinction of life .... violative of the Eighth Amendment."

It's fine for Justice Stevens to disdain the death penalty, and to disdain the Fifth Amendment, but it's not fine for him to confuse his own disdain with unconstitutionality. Here's how a blogger at Southern Appeal puts it:

My personal disdain for the death penalty has nothing to do with my understanding that the Constitution explicitly permits the states to impose such a penalty.

And for those of you trying to read the retirement tea leaves, see below the fold.

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Posted at 5:54pm on Apr. 15, 2008 Keisler Not Mentioned

By Quin

From the colloquy, it is clear to me that Helene White, the Dem, will be one of the nominees moved. McConnell seems insistent on both Conrad and Matthews. If there are only three before Memorial Day, I think it likely that those will be the three. Keisler wasn't mentioned at all. That is a shame, particularly given the Wash Post and LA Times strong pushes for him this week. I do think there is a chance for a real Demo bait and switch with it being White, Conrad, and somebody like Pratter, who sets no conservative hearts aflutter.

Republicans should insist not just on numbers but on identities of the nominees. They ought to make clear that they will shut down the Senate if there is no guarantee of a full floor vote this year for Keisler, Conrad, Matthews, and Ketledge -- and that they will NOT agree to White without an absolute guarantee that Kethledfge will get through as well -- and, moreover, that Kethledge should NOT count against the three before Memorial Day, but only in addition to them, because White is clearly not a GOP pick.

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Posted at 5:32pm on Apr. 15, 2008 Some Progress on Judges?

By Curt Levey

The decision by Senate Republicans to ratchet up the pressure on Democrats to end their obstruction of circuit court nominees may be bearing some fruit. Speaking on the Senate floor, Majority Leader Reid just said that he and his colleagues will "do our best to approve 3 circuit judges by Memorial Day." No specific names were mentioned, so the devil will be in the details. I assume—or a least hope—that the ABA can't process Helene White fast enough to make her one of the three.

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Posted at 1:42pm on Apr. 15, 2008 Wash Post and LA Times

By Quin

Readers have been good about posting these editorials, but to make them easier to find and highlight, I promote them to this entry. Both the Washington Post (here) and the LA Times (here) are showing some serious intellectual honesty by blasting Democrats for their obstructionism on judges. Senate GOPers ought to recognize that the time is ripe for them to make a big deal of this, even up to "shutting down the Senate." And, since both the Times and the Post were particularly strong in favor of Peter Keisler, Senate Repubs ought to put the Keisler nomination front and center in their arguments -- followed, as entry 1A, by the Conrad nomination to fix the atrocity of a Fourth Circuit that is missing five of its 15 judges.

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Posted at 4:05pm on Apr. 12, 2008 Fight For Puryear

By Quin

In yesterday's column in the Washington Examiner, I tell of how the Dems are now reaching down to the district court level to block nominees. This one is worth a fight.

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Posted at 3:05pm on Apr. 10, 2008 Happenings Today in the Senate

By AndrewHyman

From Congressional Quarterly: "GOP Senators Threaten Blockade Unless More Appeals Court Nominees Get Votes"

Congratulations to Catharina Haynes, who today became the first appeals court nominee confirmed this year.

Also, congratulations to Senator Specter for advocating a time limit after a nomination is submitted, for a hearing, a committee vote, and a final floor vote to be held. That would be great. Right now might be the perfect time for adoption of such a rule, because no one knows who the next president will be. All of the gridlock and obstruction has been very harmful to the judiciary.

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Posted at 8:03pm on Apr. 8, 2008 The Constitution's New Clothes

By AndrewHyman

Unfortunately, judicial nominees in the United States are often interrogated by the Senate to make sure they see nonexistent policies in the Constitution, as in the old fairy tale, "The Emperor's New Clothes":

Nobody wished to let others know he saw nothing, for then he would have been unfit for his office or too stupid. Never emperor’s clothes were more admired.

If a nominee doesn't admire the alleged new clothes that are described by the Senators, then it's off to the dungeon of obstruction. I agree with Benjamin Wittes that nominee testimony is a failed experiment. Ending it "would remove that one televised moment when senators name the price of their votes."

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Posted at 11:52am on Apr. 7, 2008 Wisconsin Gets Funded

By Quin

On John Fund's excellent column on the Wisconsin Supreme Court race, see here.

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Posted at 10:22am on Apr. 6, 2008 Specter Interview

By AndrewHyman

The Senate Judiciary Committee okayed a circuit court nominee last Thursday, but that committee is still way behind. After the meeting on Thursday, Senator Specter had this to say:

In an interview with The Hill on Thursday, Specter said it was “a possibility” that the GOP would object to motions that allow routine business to proceed on the floor, a move that would stifle Senate action and effectively bring the chamber to a halt. “That’s a decision which will have to be made by the Republican caucus,” Specter said. “I think it’s a possibility. I would not like to see it done since we have so much important business, but we also have to get federal judges confirmed.”

In unrelated news, Charlton Heston has died. RIP.

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Posted at 8:48am on Apr. 4, 2008 Pryor Restraint

By Quin

In this post from Southern Appeal, I note my today's column from the Washington Examiner, which pays homage to Judge Bill Pryor's recent essay in the Harvard Journal of Law and Public Policy. Short version: Again, Pryor distinguishes himself, while the hypocrisy of the left is exposed.

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Posted at 1:58pm on Apr. 2, 2008 Specter and McConnell on the SJC Stoppage

By AndrewHyman

Sen. Specter is talking about shutting down the Senate to get some action in the Senate Judiciary Committee (SJC) on judicial nominations, according to the Wall Street Journal. There's a thread about that at Volokh Conspiracy.

Sen. McConnell is also annoyed:

Three months into the New Year, the Senate has not confirmed a single judicial nominee of any kind, and it’s held only one hearing on a circuit nominee since September of last year. The process, it appears, has ground to a halt. This is unacceptable, it’s unfair, and the excuses we’ve heard for it aren’t convincing.

Hat Tip: Cubsfan.

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Posted at 12:04pm on Apr. 2, 2008 Riley v. Kennedy Podcast

By Feddie

The Federalist Society has an excellent podcast up concerning the Supreme Court case of Riley v. Kennedy, featuring future Supreme Court justice (and, more importantly, fraternity brother of the fedster), Kevin Newsom.

Check it out. It is always a treat listening to Kevin discuss complex legal issues. In my mind, he is, hands down, the most brilliant lawyer of my generation, and I expect that "President" McCain will be appointing him to the federal bench in the near future.

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Posted at 11:56am on Mar. 31, 2008 Ocean-Front Property Available in Utah

By AndrewHyman

Senator Hatch placed this advertisement today in National Review:

So far in the 110th Congress, we have confirmed 31 district-court and just six appeals-court nominees for President Bush. Simply meeting the historical average will require confirming 44 district-court and nine appeals-court nominees in the next several months. If anyone believes that will happen, I have some ocean-front property in Utah’s desert I would like to sell him.

In other news, Justice Scalia recently criticized the news media for not focusing on the text of statutes that the courts interpret. I agree that the media often portrays the Supreme Court as making decisions as if no laws were involved. But the Supreme Court sometimes does that too, for example in this Equal Protection case from earlier this month in which neither the majority nor the dissent mentioned or quoted the Equal Protection Clause.

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Posted at 10:02am on Mar. 27, 2008 Feddie v. Publius: On Original Meaning and the Second Amendment

By Feddie

Dearest Publius:

While it is true that the "colonial era has passed," the colonial Constitution is still with us. You may recall that "we the people" entered into a compact of sorts vis-a-vis this Constitution, and agreed to certain terms. We also recognized certain natural rights "retained" by the people, some of which were enumerated. One of those rights was to right to "bear arms." And while I understand that you and others like to think that there is a case to be made for viewing the Second Amendment as a collective-based right (i.e., that the people only have the right to own guns as members of a militia), no legal scholar worth his salt really believes that to be the case. Heck, even Larry Tribe has conceded the obvious. But why take his word for it. Let's see what Justice Joseph Story has to say on the matter, shall we?:

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Posted at 10:16pm on Mar. 23, 2008 Kmiec and Obama

By AndrewHyman

Douglas Kmiec has written a statement endorsing Barack Obama. This will probably not start a stampede from the GOP to Obama. I certainly hope not.

Kmiec was an official in the Reagan Justice Department, and he was also a leading supporter of Mitt Romney (I supported Romney too). The folks at Powerline find Kmiec's statement "vacuous." And bloggers at National Review have been using phrases like "off his rocker" and "sour grapes."

Here's my take on it. Kmiec says that he's grown "tired" of the "lack of measurable progress on respect for life" under GOP presidents. But McCain has been very clear about his judicial philosophy and about human dignity. Kmiec also mistakenly believes that McCain is unsympathetic to illegal immigrants, is committed to a lengthy "military occupation" of Iraq, and is indifferent to climate change. Actually, McCain's concern about climate change is well known, as is his (perhaps excessive) sympathy for illegal immigrants. And, McCain has said that any long-term troop presence in Iraq would depend on agreement from the Iraqi government, and would presume that "Americans are not being injured or harmed or wounded or killed."

Kmiec opposes McCain's position on the Second Amendment too. Professor Kmiec mistakenly denies that the Second Amendment includes an individual right to use guns in self-defense. He, unlike Obama, apparently finds that right elsewhere in the Constitution: "the natural law of the American Constitution prescribes the right of self-preservation." But cases like Dred Scott, Lochner, and Roe v. Wade have shown that the undefined and subjective commands of natural law should guide legislators, rather than be used against legislators by judges. Kmiec says that natural law is embodied in the Ninth Amendment, but that's just not what the Ninth Amendment says (that amendment is plainly a rule about how to construe the enumerated rights so as not to enlarge the enumerated powers).

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Posted at 4:35am on Mar. 23, 2008 It's Time for Congress to Fix Judicial Pay

By Marshall Manson

This morning in the Washington Post, George Will turns his attention to the question of compensation for federal judges.

Will points to this report by the Chief Justice, which was issued by tradition on New Years Day, but "lost in the cacophony of political news."

In his report, Chief Justice Roberts eloquently argues that federal judges are woefully underpaid. Pointing out that federal judges have been denied "the
same cost-of-living pay adjustments that other federal employees have received since 1989," Roberts voices his support for a bill in Congress to address that sorry state of affairs. Then he delivers his coup-de-grace:

This salary restoration legislation is vital now that the denial of annual increases over the years has left federal trial judges—the backbone of our system of justice—earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located.

I do not need to rehearse the compelling arguments in favor of this legislation. They have already been made by distinguished jurists, lawyers, and economists in congressional hearings, letters, and editorials—and seconded by a broad spectrum of commercial, governmental, and public interest organizations that appear as litigants before the courts. I simply ask once again for a moment’s reflection on how America would look in the absence of a skilled and independent Judiciary. Consider the critical role of our courts in preserving individual liberty, promoting commerce, protecting property, and ensuring that every person who appears in an American court can expect fair and impartial justice. The cost of this long overdue legislation—less than .004% of the annual federal budget—is miniscule in comparison to what is at stake.

To understand the truly horrifying disparity between compensation for private attorneys and federal judges, one only need read a few posts from David Lat's "Nationwide Pay Raise Watch" at the indispensable Above the Law.

MORE BELOW THE FOLD....

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Posted at 1:20pm on Mar. 22, 2008 The Leahy Rule

By AndrewHyman

The so-called "Thurmond Rule" has been described online by Ed Whelan, and Curt Levey, and also by the scribes over at Wikipedia. According to this alleged "Thurmond Rule," the confirmation process is supposed to stop many months before the end of a presidential term. Senator Leahy is now planning to use this purported "Thurmond Rule" to stall circuit court confirmation proceedings that are already way behind the historical average (see March 20 article in CQ Today). In 2000, though, Leahy said something very different:

We cannot afford to follow the Thurmond Rule and stop acting on these nominees now in anticipation of the presidential election in November.

Let's call that the Leahy Rule. Incidentally, Sen. Specter has explained that Thurmond never really said what Leahy attributes to him (see an excerpt from Specter's statement below the fold).

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Posted at 4:33pm on Mar. 20, 2008 A Non Sequitur From George Will

By AndrewHyman

In a column today, George Will says:

There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.

So far so good. Then he turns around and arbitrarily asserts that the plain language of the Equal Protection Clause means something that it plainly does not say:

[E]qual protection … should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means.

The Equal Protection Clause obviously says nothing about "a citizen", but only about how different citizens are treated in comparison to each other. Maybe some other part of the Constitution contains Will's non-interference principle (I doubt it), but certainly the Equal Protection Clause has nothing to do with it.

Hat Tip: Bench Memos.

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Posted at 4:55pm on Mar. 19, 2008 Snyder v. Louisiana

By AndrewHyman

In the post immediately below, Quin criticizes Justice Alito's opinion in Snyder v. Louisiana. I read the case, and am not quite as upset about it.

It always aggravates me when a court overturns some governmental action, without bothering to say what constitutional provision is empowering the court do so (as if the Court does not even really need constitutional authority). So, I would fault Justice Alito for never bothering to mention the "Equal Protection Clause." If he had done so, I think his opinion in this case might have been more persuasive to people like Quin. Justice Alito asserted that the overturned governmental action was inconsistent with a previous SCOTUS case: Batson v. Kentucky. But it's pretty clear that the Court in this Snyder case was actually modifying what it had said in Batson, in order to apply the Equal Protection Clause a bit more stringently.

In this Snyder case, the Court shifted the burden when a peremptory challenge is alleged to have racial overtones, so that the trial judge can only allow the peremptory challenge if the judge specifically and plausibly addresses why the allegation of racial bias is not persuasive. Such a requirement was not laid down in Batson, but it is arguably consistent with the Equal Protection Clause. Justice Thomas seemed to be more faithful to precedent in this case, whereas Justice Alito seemed to rely more on the underlying equal protection principles.

Incidentally, there was another elephant in this room, besides the Equal Protection Clause. Try searching the oral argument transcript for "Simpson."

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Posted at 1:03pm on Mar. 19, 2008 Alito and Roberts Blow a Case

By Quin

It behooves us who have fought for confirmations of judicial conservatives to monitor the performance of those judges after they reach the bench. As this site's earliest and fiercest advocate for Samuel Alito, and as somebody who continues to admire Alito greatly and who is still happy Alito is on the bench, I must now regretfully report that Alito has written a real stinker of an opinion, joined by all the other justices except the superb Clarence Thomas (who wrote the dissent) and Antonin Scalia. The opinion is discusssed here: http://howappealing.law.com/031908.html#032884. (Links to the opinion and dissent are within that link.) It involves a death penalty case in which, more than a decade after the trial, the Supreme Court now overturns the conviction and death penalty because a black juror was stricken in a peremptory challenge and the high court now determines that the challenge was racially motivated. Never mind that case law provides for a high degree of deference to the findings of the trial court (which in this case found no racially discriminatory intent) on matters of fact, and never mind that the LA Supreme Court (which, by the way, is hardly controlled by conservatives) twice found that the trial court's determination passed muster.(MORE)

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Posted at 3:35pm on Mar. 15, 2008 How Not To Depoliticize Judicial Confirmations

By AndrewHyman

Professors Ilya Somin (blogging at the Volokh Conspiracy) and Rick Hills (blogging at PrawfsBlawg) suggest a new culprit behind the recent spate of hotly contested judicial nominations. Here's how Professor Somin puts it:

One of the reasons why judicial confirmations are so hotly contested is that political movements have found that it is much easier to "change" the Constitution through creative interpretation by sympathetic judges than to go through the almost insuperable obstacle of the amendment process…. Some judges inevitably fear that if they don't "adjust" the Constitution to take account of changing conditions, great disasters might occur because Article V makes it too difficult to enact the needed changes through the amendment process.

I disagree that the constitutional amendment process needs to be made easier. For one thing, the experience with Prohibition suggests that we would get a lot of lousy constitutional amendments if the hurdles were lowered. The current amendment process is not really so difficult: if 51% of the people, in each of a sufficient number of states, demand an amendment then they can get it under the current system. In other words, 51% of the people in a state can require that 100% of their state and federal legislators support a particular proposed amendment. We don’t need to make this process any easier.

What we really need is a better system for stopping judges who want to change the Constitution through creative interpretation. Judges are supposed to expound the Constituton, not alter it. The first step in this regard might be to add language to the judicial oath explicitly requiring judges to swear they won’t try to alter the intended meaning of a law, or try to exploit pretended ambiguity in a law, or support any prior judicial decision that does those things.

Anyway, the forces that have driven the recent politicized confirmation battles would not be satisfied by lowering the hurdle for constitutional amendments. For example, Senator Edward Kennedy says: "Our reluctance to amend the Constitution has served the nation well." Ending that reluctance would not end the confirmation battles.

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Posted at 9:46am on Mar. 14, 2008 My Take on Specter vs. Leahy

By Quin

Over at the Examiner (here) , I try to put into perspective Sen. Specter's admirable efforts to prod Sen. Leahy to confirm more judges. It's nothing that readers of this site haven't heard before, but because it organizes the subject into what I hope is a compelling argument, I urge anybody who likes it to try to spread it widely via links, etc.

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Posted at 11:54am on Mar. 13, 2008 Oral Arguments are Next Tuesday on the DC Gun Ban, and the Solicitor General May Change Course

By AndrewHyman

Oral arguments are scheduled for Tuesday, March 18 in the DC gun rights case, which I previously wrote about here at ConfirmThem. Robert Novak reports today that President Bush is supporting the position expressed by the bipartisan congressional majority (including Vice President Cheney and Senator McCain), in support of the DC Circuit opinion by Judge Silberman. It’s also rumored that Solicitor General Paul Clement will get in line with that same position during the oral argument on Tuesday.

That’s good news about Clement. My preference would be for the Supreme Court to simply overturn the DC gun ban as violating the DC Home Rule Act, because there's no need to reach the constitutional issue. But the next best thing would be to affirm Silberman’s opinion. Worst of all would be to gut the Second Amendment by allowing the DC gun ban to stand while the matter is remanded to the DC Circuit.

One of the amicus briefs argued that the DC gun ban violates the DC Home Rule Act. I agree. Not only does the handgun ban undermine federal marksmanship programs, but it also violates the stated purpose of the Act to "relieve Congress of the burden of legislating upon essentially local District matters." This handgun ban conflicts with nationwide traditions of individual rights, and conflicts with longstanding congressional policy, so it is not "essentially local." The DC Home Rule Act says that legislative power of the District "shall extend to all rightful subjects of legislation within the District consistent with … the provisions of this Act," and that bars legislation that is not essentially local in nature.

After the handgun ban is history, Congress ought to make some more history by approving a constitutional amendment giving DC citizens full representation in Congress.

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