Bench Memos

NRO’s home for judicial news and analysis.

The Senatorial Plot Thickens on Judges


Earlier today Republican Senators Arlen Specter and Mitch McConnell exposed the Democrats’s latest bait and switch on judges.  Two weeks ago Majority Leader Harry Reid committed himself — and Judiciary Committee Chair Patrick Leahy — to move on judges by Memorial Day.  Reid said that he and
Leahy “would do everything we can do to approve three circuit court judges by Memorial Day…Who knows, we may even get lucky and move more than that.”

Naive observers might think that Reid’s and Leahy’s promise to move three judges had to do with, well, a quantity of judges between two and four.  But not according to the Democrats’ new math.  Senator Leahy now says that if two Michigan nominees he favors are not confirmed by May 23, perhaps no one will be.  “If the White House slow walks [their] paperwork, we probably won’t” make the Memorial Day deadline.

McConnell and Specter have called the Democratic leadership out.  “The clock is ticking,” they wrote to Reid and Leahy today.  “It has been two weeks since your commitment to do ‘everything’ you could” to confirm three nominees by the upcoming holiday recess.  Yet in that time the Committee has scheduled only one hearing.  “More troubling still is the fact that [Leahy] strongly indicated last week that the Committee may refuse to honor the commitment, not because it is impossible for it to do so, but because the Chairman’s preferred queue of nominees will not be ready in time…”.

I will post the Democrats’ next move as soon as news of it is received.

Justice Stevens vs. Senator Obama


In today’s Wall Street Journal, John Fund has a very interesting article on how yesterday’s Supreme Court ruling on Indiana’s voter ID law (which I briefly discussed here) “reveal[s] a fundamental philosophical conflict between two perspectives rooted in the machine politics of Chicago”:  that of Justice Stevens, who, in a surprise, wrote the lead opinion rejecting the challenge to the law, and that of Barack Obama, who has vigorously opposed such laws.  A couple excerpts:

Both men have seen how the Daley machine has governed the city for so many years, with a mix of patronage, contract favoritism and, where necessary, voter fraud.  That fraud became nationally famous in 1960, when the late Mayor Richard J. Daley’s extraordinary efforts swung Illinois into John F. Kennedy’s column. In 1982, inspectors estimated as many as one in 10 ballots cast in Chicago during that year’s race for governor to be fraudulent for various reasons, including votes by the dead.  Mr. Stevens witnessed all of this as a lawyer, special counsel to a commission rooting out corruption in state government, and as a judge. On the Supreme Court, this experience has made him very mindful of these abuses.

So we have the irony of two liberal icons in sharp disagreement over yesterday’s Supreme Court decision. Justice Stevens, the real reformer, believes voter ID laws are justified to prevent fraud. Barack Obama, the faux reformer, hauls out discredited rhetoric that they disenfranchise voters. 

Tags: Whelan


Dimwits and Double Standards


Last week, in a post on the contretemps of the small-minded that erupted at the University of Georgia when Justice Clarence Thomas agreed to be the commencement speaker there this spring, I referred to Thomas’s “career of distinguished public service.”  This brought an e-mail from a reader who identified himself only as “Neal,” arguing that Thomas is the Court’s least productive justice, as measured in opinions written–and so, says “Neal,” he is a “quota justice” who was appointed because he is black and didn’t deserve to be on the Court.  This sort of canard may be widespread, for all I know, and in any event is emblematic of the kind of disdain directed only at Justice Thomas, and only because he is not the left’s preferred version of a black man.  So I’ll rebut it here rather than in an e-mail to my contemptuous correspondent.

“Neal” refined his argument in a second e-mail to say that through 1999, Thomas had written the fewest opinions on the Court “by a good margin,” and that he only became and remained truly productive thereafter.  Well, let’s see.  Begin by leaving out Thomas’s “freshman” term, since he joined the Court after the October 1991 term began, and since most justices are relatively underproductive when they first begin.  According to the Lexis database, in the seven October terms that began from 1992 to 1998 (i.e., through June 1999), Thomas wrote 156 opinions (of all kinds: for the Court, concurring, and dissenting).  In the subsequent seven October terms, from 1999 to 2005 (through June 2006), Thomas’s output increased to a total of 181 opinions of all kinds, an increase of 16% in a period of the same duration. 

Looks like “Neal” has a point, right?  After all, in the terms 1992 to 1998, Justice Scalia was far more “productive,” being responsible for 218 opinions.  But wait.  In the subsequent period of the terms 1999 to 2005, Scalia’s production of opinions declined to 192 total opinions, a drop of 12% that brought him and Thomas very close together on this measure.  So should Scalia be excoriated for becoming lazier in the later period?

Let’s not stop.  Three other justices served for the entirety of both periods under review here.  How did they do?  In the 1992-98 period, Justice Stevens authored 297 opinions, but in the 1999-2005 period this fell to 229 opinions, a drop of 23%.  Justice Kennedy’s productivity rose very slightly, from 129 opinions in the 1992-98 period to 134 in the 1999-2005 period (up 4.7%).  And Justice Souter produced 151 opinions in the 1992-98 period, but only 132 in the 1999-2005 period (down 12.6%). 

Notice anything about this recitation of (mostly meaningless) “productivity” figures?  Justice Kennedy was considerably less productive than Justice Thomas in the earlier period, and remained so in the later one.  Justice Souter was slightly less productive than Thomas in the earlier period, and became markedly less so in the later one.  (So what was that again about Thomas producing the fewest opinions before 1999 “by a good margin”?)  If Justice Thomas is to be judged an unworthy appointee for the Supreme Court because his contributions have been so “slight,” what are we to make of two justices who have never outperformed him, one of whom has actually declined in productivity over time?

In truth, though, what are we to make of these numbers as indicia of how hard, how effectively, or how influentially the individual justices work?  Not much, actually.  But what can we say about people who pick out Justice Thomas’s “productivity” figures in isolation from his colleagues’ performance in order to market the canard that he was a “quota” appointee?  That they are dimwits using double standards.

In Bold Relief


Over at The Corner Andy McCarthy links readers to a transcript of Leslie Stahl’s interview (telecast last night) with Justice Scalia. If you missed the show the transcript is surely worth a read. The Justice is engaging and unaffected (as always), and is to be especially admired for his willingness to portray himself as an old-fashioned Catholic, with deeply conservative views on some hot-button issues. (He even accounts for his nine children as the payoff for playing what he called “Vatican Roulette”.) Justice Scalia characteristically coupled his confessions of conservatism with the insistence that his convictions about what justice requires — and forbids — do not affect his constitutional rulings. The contrast to the modus operandi of quintessential liberal Arthur Goldberg (described by Ed Whelan and me last week) could not be more bold.

Given John McCain’s professed intention to nominate justices in the Scalia mold — and Barack Obama’s Goldbergian model of judging — we may have here, on Benchmemos in the space of a week, a preview of the Fall campaign.

A Reform Idea to Rally ‘Round


Poaching a bit here on the territory staked out by Phi Beta Cons, I will draw our readers’ attention to a recent piece at Inside Higher Ed by Thomas Lindsay, arguing that we should place the study of American political principles at the center of the college curriculum.  Classic texts and classic questions, beginning with the Declaration of Independence, the Constitution, and The Federalist, can form the basis of a truly democratic education–an education in and for democratic citizenship–that is not merely “filial piety” but a “rational inquiry” of the sort universities exist for the purpose of pursuing.  Lindsay, the deputy chairman of the NEH, makes a powerful case that should be read in full.


Re: More on Morality and the Law


Gerry Bradley is characteristically modest when he lists himself among the faculty who will teach the inaugural Moral Foundations of Law Seminar of the Witherspoon Institute’s new Center on Religion and the Constitution this coming August.  He is the Director of the Center, and a better choice I cannot imagine.  Gerry won’t toot his own horn, but I will!

More on Morality and the Law


Last night Justice Scalia shared his views on the relationship of morality to law with a national television audience. Those law students now hooked on the topic should go to the website of the Witherspoon Institute, located next door to Princeton University. The Institute’s new Center on Religion and the Constitution is staging its inaugural Moral Foundations of Law Seminar this coming August 10 -16, in Princeton. The Seminar’s faculty is comprised of John Finnis, holder of Chairs in Law at Oxford and at Notre Dame; Robert George, McCormick Professor of Jurisprudence at Princeton University; the Honorable Edith Jones, Judge of the United States Court of Appeals for the Fifth Circuit; the Honorable Edith “Joy” Clement, judge of the same court and also a member of the new Center’s Academic Advisory Board; and your correspondent.

Crawford v. Marion County Election Board


By a vote of 6 to 3, the Supreme Court has rejected a facial challenge to Indiana’s voter-identification law.  I’m returning from a road trip and haven’t had time to read the opinions in the case, so I’ll just note here that the six-justice majority divides between two opinions:  one by Justice Stevens, joined by the Chief Justice and Justice Kennedy, and one by Justice Scalia, joined by Justice Thomas and Justice Alito.  The difference between the opinions appears to turn on the proper standard for reviewing the law at issue.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of April 28


Ninth Circuit hijinks, filibusters, racial quotas, and criminal-coddling:

Apr. 291998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson.  Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.
May 11992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read:  Catholic) high school violates the Establishment Clause.  One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote.  Chief Justice Rehnquist’s majority opinion states:  “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.”  Justices Blackmun, Stevens, O’Connor and Souter dissent. 

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees.  The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture.  Owen’s nomination is finally confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005. 

May 31984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority.  The result is that white firefighters with more seniority were to be laid off in favor of minority firefighters with less seniority.  In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking!  Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters:  “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.”

May 41984—When is an express signed waiver of Miranda rights not a waiver?  When you try to conceal your identity by signing a false name.  So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez).  Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights.  He signed the form, but, intent on concealing his identity, signed someone else’s name.  Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights:  defendant may well have believed that by using a false name he was not committing himself to anything.” 

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession”.  A more blatant defiance of controlling authority of a higher court is difficult to imagine. 


For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

What a Hoot


If you’re not watching the 60 Minutes interview with Justice Antonin Scalia right now, you are missing one of the great displays of forebearance in our time.  Lesley Stahl is asking such amazingly dim questions, it is a wonder that Scalia doesn’t say “well, that’s really stupid” every ten seconds or so.  Or maybe CBS edited that out.

Leahy’s Latest Filibuster


Senate Judiciary Committee Chair Patrick Leahy has responded to Arlen Specter’s call to break the “partisan gridlock” on judges as one might have expected him to — with a filibuster. In two prolix diatribes impersonating letters to Republican Senators, Leahy confirms what Specter alleged: the Democrats consider judicial confirmations to be a partisan battleground. In good lawyerly fashion Leahy makes his case in the alternative: Senate Democrats have done a darn good job moving nominees through the process; to the extent that Democrats have not done a good job, it is due to Republican political stunts (such as the President’s habit of nominating knuckleheads to the bench); and to the extent that Republican political stunts do not explain Democrats’ underperformance, it is only fair payback for what Republican Senators did to Bill Clinton’s nominees. Consider, for example, this sentence from Leahy’s April 23 letter to Republican Senators from the depleted Fourth Circuit:: “The reason there is an emergency vacancy on the Fourth Circuit from North Carolina is because the Republican majority refused to consider any of President’ Clinton’s nominees”.

An eight-year old “emergency”? Best not to call on Patrick Leahy in a pinch.

The last sentence of Leahy’s broadside (also dated April 23) addressed to “Republican Senators” tells you all you need to know about his plans. “During the remainder of this year, if you will work with me rather than pick fights, I am confident we can not only make progress but we will be in position to complete the restoration of the confirmation process during the next President’s administration and finally overcome years of partisan rancor”.

Once the Democrats reoccupy the White House, you see, Leahy will prove his “bipartisan” bona fides by waving President Obama’s judicial nominees right on through.

The Lights Go Out


Inside Higher Ed reports that at the University of Georgia some faculty are in an uproar because Supreme Court Justice (and Georgia native) Clarence Thomas has accepted a longstanding invitation to be the commencement speaker this spring.  Thomas has long been a supporter of the university’s scholarship and honors programs, and has visited the law school for talks and interacted with the students there.  So what prompts the outrage now?  Not his jurisprudence, but the age-old discredited charges that he harassed Anita Hill in the 1980s.  Seems there have been some high-profile sexual harassment cases at UGA this year, so, as one hyper-concerned faculty member puts it: “this is not a referendum on guilt or innocence [but] a reaction to the timing of this particular choice given all that’s been going on at UGA.”

Oh, right.  Guilt and innocence don’t matter.  Neither does a career of distinguished public service by a native son of Georgia.  What are they teaching at this place?  All of it puts me in mind of an old song:

Thats the night the lights went out in Georgia
Thats the night that they hung an innocent man

Brennan’s Curious Rise to the Supreme Court


Ed Whelan reminds us that Bill Brennan was born this week — April 25 — in the year 1906. It might therefore be appropriate to recall some curious features his — Brennan’s, not Ed’s — ascent to the Supreme Court. For one thing, this man — whose work on the Court remains the most significant of any Catholic to serve there — was not nominated by a Democratic President, a fact all the more odd because Brennan behaved like a Democrat from the moment he got onto the bench. But it was Dwight Eisenhower who made the appointment. Yes, appointment because Brennan was a recess appointee. His confirmation hearings occurred after he took his seat on the high Court.

For another thing, Brennan’s Roman Catholicism was an issue – though not a big one — at the Hearing. Oddly, it was raised by a Roman Catholic Senator, one Joseph McCarthy, who seems to have suspected Brennan of latent hostility to McCarthy’s preferred means of weeding Communists out of the government. Brennan managed to give sufficient assurances. He said along the way that he recognized no “obligation superior to the oath he had taken to support the Constitution and laws of the United States.” Brennan spent the next thirty years reading his peculiar notion of what the law ought to be into the Constitution and laws of the United States.

The non-Catholic Senators present rushed forward to insist that Brennan’s religion was irrelevant. Tennessee Democrat Estes Kefauver said “it would be a great disservice” to the country “to start a precedent” of injecting religious considerations “pro and con” into such decisions as the one presented. Mississippi Democrat James Eastland declared: “Everyone agrees with that”. Oddly, some of today’s Senate Democrats would not so readily agree.

This Week in Liberal Judicial Activism—Week of April 21



Geographical and moral confusion:

Apr. 25

1906—William J. Brennan, Jr., is born in Newark, New Jersey.  (For more on Brennan, see This Week entries for March 19 and March 22.)


1996—More Newark:  The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego.  A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.” 

Six weeks later, This Week all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton.  In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign.  (How could anyone withstand Bob Dole’s withering criticisms?)  In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.  (Both letters are here.)


Apr. 26

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods.  There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter.  Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist.  Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors.  But after Brewington stabs Majors, Middlebrooks does so as well.  Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death.  On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence.  In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution.  (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.)  Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally:  “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.”  Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit.  Meanwhile, on remand, Middlebrooks is again sentenced to death.  In 1999—twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.   


For an explanation of this recurring feature, see here. 


Tags: This Day in Liberal Activism

McCain Supports Specter’s Discharge Motion


John McCain wrote Thursday to Senator Arlen Specter, fully supporting Specter’s effort to break what McCain calls “partisan gridlock” on judges.  Precisely at issue are the stalled nominations of Peter Keisler, Robert Conrad, and Steve Mathews to the federal bench (in Conrad’s case, elevation from a district to an appellate seat).  But the Democrats’ chokehold on these three is symptomatic of their larger, and more destructive, and unprecedented scheme to tank all pending nominations. McCain wrote to Specter that this is “unacceptable…and only serves to harm all Americans who seek justice in our courts only to find our
courts understaffed.”  In what will surely become a recurring campaign theme, McCain used Democrats’ rhetoric against them.  The two-year delay on Keisler is “most surprising,” McCain wrote, “considering the American Bar Association unanimously rated him as ‘well qualified’ and Chairman Leahy has previously referred to the ABA’s approval as ‘the gold standard by which judicial candidiates are judged.’”

Perhaps the Democrats mean to revivie the rhtoric of their standard bearer a century ago.  Does anyone remember William Jennings Bryan — the presidential three-time loser — and his talk of crucifixion on a “cross of gold”?

Score One Against Goldbergism


Ed Whelan and I earlier this week described, and criticized, Arthur Goldberg’s justice uber alles “jurisprudence”. Goldberg thought that a Supreme Court Justice should first divine the right result between the parties, and then write the law — the opinions — accordingly. This was a common conviction of Warren-era Justices. It shows in the mess they made of constituional law.

Wednesday’s capital punishment decision tees up a good example of the difference between Goldbergism and, well, serious constititutional decisionmaking. Assuming that Goldberg was a death penalty foe, we should imagine that he would have followed the lead of his liberal kindred spirits — Brennan and Marshall, in particular — and contorted Eighth Amendment law beyond sense in a quixotic attempt to stamp out capital punishment without quite abolishing it. Thus the Court’s liberals, starting in the early seventies encumbered capital proceedings with so many procedural hurdles that appeals lasting decades became the norm. And we are still trying to climb out of that morass. In Wednesday’s case we should imagine Goldberg (and Brennan and Marshall) occupying the strange position that, while the Constitution may permit the state to kill a condemned prisoner, the state may not hurt him.

The alternative to Goldbergism is not to ignore justice, or to act as if there is no such thing. One who believes (as I do) that capital punishment is both inherently immoral and surely constitutional does not have to subordinate the law to moral conviction. Not at all. In fact, no judge who honestly believes that the death penalty comports with the Constitution (and the evidence that it does is overwhelming) MAY subordinate the law — consciously distort or lie about the law — to get the “just” result. For that would be immoral, too.

Someone who believes the death penalty is immoral MAY have to recuse himself from a case, if one believes that participating in it makes one an accomplice to an immoral act. But an appellate judge very likely need not do that, for that jurist’s job is not to impose death but rather to review the proceedings below to be sure that judgment according to law was entered. If it was, the judgment should be affirmed.

Lying Through Their Teeth Once Again?


Some excerpts from my NRO essay today, “The Mystery of the Missing Lawsuits:  One year after the Supreme Court’s partial-birth abortion ruling”: 

Exactly one year ago today, the Supreme Court in Gonzales v. Carhart rejected a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003.… Instead, the Court virtually invited practitioners of partial-birth abortion and their allies to bring so-called as-applied challenges that would carve out from the Act’s scope any circumstances in which partial-birth abortion might be shown to be necessary to preserve the mother’s health.…  In dissent, Justice Ginsburg predicted that these as-applied challenges would “be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [Act’s] prohibition.” …

So how many as-applied challenges have been filed over the past year? Zero.…

Planned Parenthood and its allies continue to maintain that bans on partial-birth abortion threaten women’s health. Perhaps they will bring as-applied challenges to the federal partial-birth abortion ban one of these days. But their failure to have done so over the past year naturally invites suspicion that they are, to paraphrase their own Ron Fitzsimmons, just lying through their teeth once again. 

Tags: Whelan

How Judge Posner Thinks Judges Should Think


On NRO’s home page today is “How Judge Posner Thinks Judges Should Think”—my review of Richard A. Posner’s new book How Judges Think.  The review stitches together, with only minor changes, my seven-part series of Bench Memos posts from two weeks ago, so if you’ve read all of those, you might as well skip the review.  But if you haven’t, you’ll find the single review more convenient to read.

Tags: Whelan

Reid’s Promise


In a Senate floor colloquy yesterday with Republican leader Mitch McConnell, majority leader Harry Reid promised that “I will do everything within my power to get three judges approved to our circuits before the Memorial Day recess.” 

We’ll see.  This is the same Reid, after all, who promised in February 2007 that he would do his “very best” on judicial confirmations to “at least meet the standards of Congresses similarly situated as ours.”  In the last two years of the Clinton administration, a Republican-controlled Senate confirmed 15 appellate-court nominees.  So far, in these last two years of the Bush administration, a Democrat-controlled Senate has confirmed only seven.


This is also the same Reid who assured his Republican colleagues that the Fifth Circuit nomination of Leslie Southwick would be confirmed by the Memorial Day recess in 2007, but who then joined the vicious smear campaign that the Left launched against Southwick and tried to filibuster his nomination.  Southwick was ultimately confirmed, over Reid’s no vote, in late October 2007, nearly five months after the promised date.  

Tags: Whelan

Justice Stevens’s “Experience”


Even by Justice Stevens’s high standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange.  Stevens rambles on for some nine pages (slip op. 8-17) explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment.  But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees with the Chief Justice that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment. 


Justice Scalia, in addition to joining Justice Thomas’s opinion concurring in the judgment, writes a brief opinion responding to Stevens’s folly.  As Scalia says of Stevens’s ultimate reliance on his “own experience”:  “Purer expression cannot be found of the principle of rule by judicial fiat.”

Tags: Whelan


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