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Posted at 7:24am on Nov. 4, 2007 McConnell on Judicial Nominations
By AndrewHyman
This is from almost two weeks ago, but it's still worth a look:
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Posted at 7:27pm on May 16, 2007 Should the Senate Reject Qualified Judicial Nominees for Politicized Ideological Reasons?
By AndrewHyman
Over at the Volokh Conspiracy, George Mason Law Professor Ilya Somin is urging that the Senate follow the lead of Chuck Schumer, and reject qualified nominees for ideological reasons. I very much disagree with Professor Somin's post, and will explain the two main reasons why (Marshall Manson previously addressed this subject here at confirmthem).
Professor Somin says that he agrees with Senator Schumer's reliance on the precedent set by the Senate's rejection of John Rutledge in 1795. But the Rutledge incident is no precedent for what Schumer and Somin propose.
The history of the Rutledge matter is summarized in a report of the Congressional Research Service.
Rutledge became Chief Justice on July 1 of 1795, by recess appointment. Then, on July 16 of 1795, Chief Justice Rutledge gave an extremely controversial speech denouncing the Jay Treaty with England. He said in the speech "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it." Inevitably, this caused the Senate to reject his nomination on December 15 of 1795, and there were also rumors of mental imbalance. Days after the Senate rejection, Chief Justice Rutledge attempted suicide, and finally resigned as Chief Justice on December 28 of 1795.
Vice President John Adams wrote to Abigail Adams that the Senate's rejection of Rutledge "gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not ... inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people." To use the Rutledge incident as some sort of precedent for the Senate to take ideology into account is a huge mistake. A sitting Chief Justice simply has no business saying in a public oration "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it," regardless of the content of a treaty. And, Chief Justice Rutledge added that supporters of the Jay treaty were guilty of "prostitution of the dearest rights of freemen." His speech referred to provisions of that treaty as the "grossest absurdities" which he blasted as "ridiculous and inadmissible."
Professor Somin also argues that the framers would not have placed the nomination and confirmation of judges in the hands of the political branches, unless the framers intended that judges be screened for political ideology. On the contrary, the framers placed this job in the hands of the political branches because the political branches were expected to jealously guard their prerogatives, and not tolerate judges who usurp the legislative function. The power of impeachment was placed in the hands of the political branches for the same reason, as Hamilton explained in Federalist 81:
There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.
I hope that Professor Somin will rethink this matter, and at least come up with better arguments.
P.S. And just for good measure, here's Hamilton in Federalist 66:
It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose - they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.
Therefore, it seems to me that Jonathan Adler is correct: "the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology."
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Posted at 10:18pm on Apr. 20, 2007 Let's Hear it For Miss America 1944!
By AndrewHyman
Click on image of Venus Ramey for details. More here.
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Posted at 2:52am on Sep. 16, 2006 Eva Cassidy and Falling Leaves
By AndrewHyman
With autumn fast approaching, I thought it might be apt to post this music video from Eva Cassidy, as a rare interlude from our posts about judicial stuff.
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Posted at 1:31am on Jan. 6, 2006 Alito in Wonderland
By AndrewHyman
There's a lot of noise out there, but not much of substance to report about the Alito nomination right now. I know some of you are Lewis Carroll fans, so --- with apologies to Mr. Carroll and to Judge Alito --- here's a story about the upcoming hearing that's scheduled to begin on January 9.
"Call the first witness," said Chairman Specter; and the White Rabbit blew three blasts on the trumpet, and called out, "First witness!" The first witness was the Nominee, Judge Alito. He came in with a teacup in one hand, and a piece of bread-and-butter in the other. "I beg pardon, Mr. Chairman," he began, "for bringing these in: but I hadn't quite finished my tea when I was sent for."
Here Senator Leahy put on his spectacles, and began staring hard at the Nominee, who turned pale and fidgeted. “Give your testimony," said Chairman Specter; “and don't be nervous, or I'll have you executed on the spot." This did not seem to encourage the witness at all: he kept shifting, looking uneasily back at Senator Leahy, and in his anxiety he bit a large piece out of his teacup instead of the bread-and-butter.
“What did the Concerned Alumni of Princeton say thirty years ago today?" barked Leahy's Democratic colleagues, one after the other. “That I can't remember," said the Nominee. “You must remember," remarked the Chairman, “or I'll have you executed."
Here one of the leftist guinea-pigs cheered, and was immediately suppressed by the officers of the Senate. (They had a large canvas bag, which tied up at the mouth with strings: into this they slipped the leftist guinea-pig, head first, and then sat upon it.) “I'm glad I've seen that done," thought Judge Alito, discreetly.
“If that's all you know, you may stand down," continued the Chairman. “I can't go any lower," said the Nominee: “I'm on the floor, as it is." “Then you may sit elsewhere," the Chairman replied. Here the other leftist guinea-pig cheered, and was suppressed. “That finishes the guinea-pigs!" thought Alito, "and now everyone shall get along better."
“I'd rather finish my tea," answered Alito to the Chairman, with an anxious look at Senator Leahy, who was reading the list of witnesses. At this moment Senator Schumer, who had been for some time busily writing in his note-book, called out “Silence!" and read out from his book, “Rule twenty-two. All persons more than a mile high to leave the hearing room." Everybody looked at Alito. "I'm not a mile high," said Alito. “You are," said Schumer. “Nearly two miles high," added Leahy.
“Well, I shan't go, at any rate," said Alito: "besides, that's not a regular rule --- you invented it just now." “It's the oldest rule in the Senate rule book," said Schumer. “Then it ought to be Rule Number One," said Alito. Schumer turned pale, and shut his note-book hastily.
“Hold your tongue!" said Senator Kennedy, turning purple. “I won't!" said Alito. “Off with his head!" Kennedy shouted at the top of his voice. Nobody moved.
“You may go," snarled the Chairman politely, and the Nominee hurriedly left the hearing room, without even waiting to speak to reporters.
“--and just take his head off outside," Senator Kennedy added to one of the officers of the Senate; but the Nominee was out of sight before the officer could get to the door. “Call the next witness!" said the Chairman, eager to hasten Alito's confirmation.
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Posted at 10:58pm on Dec. 30, 2005
By AndrewHyman
THE NEW YEAR
by John Greenleaf Whittier (1839)
The wave is breaking on the shore,
The echo fading from the chime;
Again the shadow moveth o'er
The dial-plate of time.
In that dying year hath been
The sum of all since time began;
The birth and death, the joy and pain,
Of Nature and of Man.
O'er the blackness of the storm
A bow of promise bends on high;
And gleams of sunshine, soft and warm,
Break through our clouded sky.
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Posted at 7:22pm on Dec. 24, 2005 HAPPY HOLIDAYS!
By AndrewHyman
Merry Christmas and Happy Hanukkah from me and everyone else remotely affiliated with this web site.
Because all of our ancestors emigrated from Africa during the past two hundred millennia, that makes us all African Americans. Happy Kwanzaa, and click on this Kwanzaa image if you want to learn about it:
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Posted at 8:16pm on Nov. 4, 2005 Feddie takes a brief blogging hiatus
By Feddie
See y'all soon.
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Posted at 7:01pm on Sep. 10, 2005 I Like This Picture
By AndrewHyman
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Posted at 12:31am on Jul. 4, 2005
By AndrewHyman
IN CONGRESS, July 4, 1776.
The unanimous Declaration of the thirteen united States of America,
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
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About ConfirmThem
ConfirmThem.com is a collaborative blog hosted by RedState and dedicated to confirmation of judicial nominees who will uphold the original intended meaning of the Constitution, using judicial restraint. Until 2009, this blog provided news and analysis regarding judicial confirmation battles in the U.S. Senate, and gave every American the opportunity to be heard in Washington. Now this blog is in a holding pattern, awaiting judicial nominations we can support. For info about our bloggers, see here.
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