Bench Memos

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Senatorial Privilege vs. Quality Judges


From the new (March 27) issue of the Weekly Standard, here is my essay “Droit du Sénateur: Senatorial privilege vs. quality judges“. A couple excerpts:

“President Bush recently nominated Milan D. Smith Jr. to fill a longstanding vacancy on the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit, which covers nine western states, is a notorious bastion of liberal judicial lawlessness. So the White House should be looking to fill the vacancy with an outstanding jurist who is learned in questions of federal constitutional and statutory law and who is prepared to dedicate two decades or more to the arduous task of helping to transform that court. Unfortunately, Smith hardly fits the bill….

“For all the attention given to the Democratic filibuster of judicial nominees in recent years, the greater impediment to President Bush’s ability to appoint high-quality practitioners of judicial restraint to the federal district and appellate courts comes from obscure Senate practices that enjoy widespread bipartisan support from senators. These practices exist because they serve the narrow interests of individual senators. They are, in short, perquisites of membership in the club known as the United States Senate.”


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