ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Republican Senator Mitch McConnell of Kentucky said today that, "There is no one I know of on our side who wants to get rid of the legislative filibuster." Does anyone know of any GOP Senators who would like to get rid of the legislative filibuster? I don't. Perhaps the GOP would be wise to introduce a non-binding resolution to that effect, just to prove that the GOP is not steering anyone down a slippery slope toward abolishing the legislative filibuster.

In other news regarding the effort to restore the tradition of up-or-down votes for majority-supported judicial nominees, the New York Times reports that, "Senators John E. Sununu of New Hampshire and Mike DeWine of Ohio, have made up their minds but are keeping their views private."

Here's what puzzles me about this whole controversy. According to the current Senate rules, 41 Senators apparently have the raw power to prevent any and all nominations from ever coming to a vote unless the president nominates precisely who the 41 Senators want him to nominate. Obviously, however, that would usurp the President's nomination power. So, there is clearly a potential disconnect between the current Senate procedures and the Constitution. Yet, I keep hearing that it's of paramount importance to not change Senate procedures. That attitude is just totally wrong, and disregards whether 41 Senators are trying to take over the nomination process by extorting the type of "consensus" nominees they want. As a citizen, I am upset that so many Senators seem to be afraid to enforce the Constitution, and afraid to undo the new and unprecedented stunt that the Democrats are trying to legitimize.

Of course, everyone knows which side the media is on. A perfect example of the BLATANT MEDIA BIAS on this issue is the treatment given to comments by former Senate Majority Leader Bob Dole. First the media cherry picks which of his sentences they report in newspapers across the country, and then when Dole goes out of his way to elaborate on the ignored portions on national TV, his elaboration isn't reported in a single newspaper in the United States.

But that's not the worst of it. Slanting the news by selective omission is nothing compared to the outright falsities that some newspapers are allowing to masquerade as truth. Here's an excerpt from a Christian Science Monitor "news" article that appeared today here and here:

As a colleague on the Texas Supreme Court, Attorney General Alberto Gonzales once criticized Owen for an "unconscionable act of judicial activism" by restricting a minor's access to abortion. He now supports her nomination enthusiastically, but the old rebuke still replays often in the debate over her confirmation.

This is just plain false, as is crystal clear from the record.

It will be very nice to see Sen. Frist pull this out, despite the seventy foot wave of misinformation deluging the nation. After full and fair debate, let's have up-or-down votes on majority-supported judicial nominations, as was the American tradition until 2003.

Here are a couple emails I sent today regarding the Owen nomination....

Ms. Gail Chaddock
The Christian Science Monitor

Dear Ms. Chaddock:

Your article Tuesday in the Christian Science Monitor contains a very large factual error. You wrote:

"As a colleague on the Texas Supreme Court, Attorney General Alberto Gonzales once criticized Owen for an 'unconscionable act of judicial activism' by restricting a minor's access to abortion. He now supports her nomination enthusiastically, but the old rebuke still replays often in the debate over her confirmation."

You made similar assertions in your WBUR Radio interview on Tuesday, March 8. Nevertheless, Gonzales never criticized Owen for an "unconscionable act of judicial activism." This frequently repeated charge is simply, clearly, and demonstrably false.

At his confirmation hearing earlier this year, Attorney General Gonzales testified under oath as follows:

"My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case."

The actual record of the case in question unambiguously supports this sworn testimony of Attorney General Gonzales. Here is what then-Justice Gonzales wrote in that case:

"Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, WOULD be an unconscionable act of judicial activism." (emphasis added)

Gonzalez was not calling the three dissenters in that case "unconscionable judicial activists," much less directing that charge at Justice Owen in particular. He mentioned none of them. He was saying that if anyone (himself included) were to disregard the words of a statute, then that would be unconscionable judicial activism, and so it would be. Justice Owen explained in her Judiciary Committee hearing as follows:

"He [Gonzalez] said if anybody, including himself, were to do that, would do that, that would be judicial activism, and I agree with that."

If Gonzalez had been alluding to any of the dissenters, it would have been to Justice Hecht rather than Justice Owen. After all, it was Justice Hecht who excoriated the majority for its judicial activism:

"We are not judicial activists, say the justices in today's majority. Surely they know that remonstrances like these do not allay doubts but only exacerbate them. 'The lady doth protest too much, methinks.'"

I hope that these materials will cause you to retract the incorrect information in your article today in the CS Monitor. Please let me know if I can supply any more information about the case in question.

Sincerely,

Andrew T. Hyman

This second one is similar to the first....

Professor Jonathan Turley
George Washington University School of Law

Dear Professor Turley:

Your April 18 article in the LA Times contains a very large factual error. You wrote:

"Atty. Gen. Alberto R. Gonzales, her colleague on the Texas Supreme Court, said she engaged in "an unconscionable act of judicial activism" in restricting a minor's access to an abortion."

You made a similar assertion in your Fox News interview with Brit Hume on April 13. Nevertheless, Gonzales never criticized Owen for an "unconscionable act of judicial activism." This frequently repeated charge is simply, clearly, and demonstrably false.

At his confirmation hearing earlier this year, Attorney General Gonzales testified under oath as follows:

"My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case."

The actual record of the case in question unambiguously supports this sworn testimony of Attorney General Gonzales. Here is what then-Justice Gonzales wrote in that case:

"Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, WOULD be an unconscionable act of judicial activism." (emphasis added)

Gonzalez was not calling the three dissenters in that case "unconscionable judicial activists," much less directing that charge at Justice Owen in particular. He mentioned none of them. He was saying that if anyone (himself included) were to disregard the words of a statute, then that would be unconscionable judicial activism, and so it would be. Justice Owen explained in her Judiciary Committee hearing as follows:

"He [Gonzalez] said if anybody, including himself, were to do that, would do that, that would be judicial activism, and I agree with that."

If Gonzalez had been alluding to any of the dissenters, it would have been to Justice Hecht rather than Justice Owen. After all, it was Justice Hecht who excoriated the majority for its judicial activism:

"We are not judicial activists, say the justices in today's majority. Surely they know that remonstrances like these do not allay doubts but only exacerbate them. 'The lady doth protest too much, methinks.'"

I hope that these materials will cause you to publicly set the record straight. Please let me know if I can supply any more information about the case in question.

Sincerely,

Andrew T. Hyman