The News & Observer on the latest delay in Judge Terrence Boyle’s bid for confirmation to the Fourth Circuit.

The Philadelphia Inquirer reports on an interview with Senator Specter calling for “a show of independence” by Senate Majority Leader Bill Frist to reject the calls for a nuclear showdown and forge a compromise. The filibuster fight is largely driven by activists on the extreme, Specter said. Adding “I think the way to approach it is for both party leaders not only to release their caucuses from party-line voting but to urge independent voting on the issue. I think if that were to happen there wouldn’t be a filibuster and some of these nominees might well be defeated.”

In thinking about how we got to the point where the Senate may need to act to eliminate judicial filibusters, it’s worth remembering a little history from the beginning of this administration.

Four years ago this past Monday, on May 9, 2001, President Bush held an event in the East Room to introduce to the country and to the Senate his first 11 nominees to the federal bench. He invited leaders from both parties. I distinctly remember seeing Senator Leahy–then chairman of the Judiciary Committee–in the room. There were a record number of judicial vacancies, including numerous judicial emergencies designated by the non-partisan Administrative Office of the U.S. courts, and President Bush had moved with record speed to get a slate of nominees up to the Senate.

The president presented a slate of well-qualified, mainstream nominees. The slate was racially diverse. It included a mix of men and women. And, perhaps most importantly, it included both Republicans and Democrats. People forget this, but two of the original eleven were judges originally nominated by President Clinton: Roger Gregory and Barrington Parker. In the case of Judge Gregory, it was the first time in history that a president had re-nominated a failed circuit-court nominee originally nominated by his predecessor from the other political party. This was unprecedented and highly significant, and it was intended to send a message. It was an olive branch. The president highlighted it in his speech that day, asking the Senate to move beyond the bitterness of the past in the judicial wars and to start afresh in a spirit of cooperation and good faith.

The Democrats took the olive branch the president extended and slapped him in the face with it. They immediately held hearings for, and confirmed, the two Democrats among the nominees and then held up the rest, refusing even to hold hearings for a long time on most of them. They then complained incessantly (and, for the most part, falsely) about not having been adequately consulted by the White House with regard to these nominations. And they executed the play suggested by Professor Tribe, Marcia Greenberger, and others at a Democratic strategy session on how to block Bush judicial nominations–a session held before the president had even taken office–when they scheduled hearings under Senator Schumer to try to legitimize the notion that judicial nominations could be blocked on ideological, rather than competence grounds.

This sent the strongest possible message to those of us in the White House that there was no interest at all in cooperation or good faith from the Democratic side and that they were determined from the start to try to frustrate the new president’s efforts to fill judicial vacancies. The Democrats were alarmed that the president had begun by focusing on appellate appointments; that those appointments were concentrated in circuits where the partisan balance was close; and that the president appeared determined to appoint highly qualified minorities and women, such as Miguel Estrada and Priscilla Owen.

The president tried to change the tone, but he was shouted down. This is where the genesis of the conflict that has led us to the brink of the nuclear option really began, at least in this administration. When the Democrats later lost the Senate, they simply shifted tactics, using the filibuster to accomplish what they could no longer use control of the Judiciary Committee to do.

The ultimate proof that the Democrats escalated this conflict beyond all reasonable or defensible proportions is this: Today, more than four years after the East Room event, three of the original eleven nominees still have never received an up-or-down confirmation vote in the Senate.

Byron York writes on the Reid Saad outrage.

to admit mistakes: Our Andy McCarthy admits he was wrong on filibusters.

The Texas Attorney General, Greg Abbott:

Almost 1,500 days have passed since President Bush announced his first eleven judicial nominees, an exceptionally diverse slate of qualified candidates that even the New York Times said was “notable for its inclusion of women and minorities.” Since that May 9, 2001, day, America has endured a terrorist attack, bestowed iconic status on a gizmo called the iPod, produced eleven of Hollywood’s top-20 all-time blockbusters, and birthed democracy in two long-oppressed regimes.

But one thing has persisted: Senate Democrats’ bare-fisted attacks on Texas supreme court justice Priscilla Owen. Justice Owen’s resume is impeccable: top of her law-school class (completing undergraduate and law school in just over five years); highest score statewide on the bar exam; ten years on the Texas Supreme Court; reelected in 2000 with 84 percent of the vote and the endorsement of every major Texas newspaper; and the highest rating possible — a unanimous “well qualified” — from the American Bar Association (no conservative bastion), which Democrats once hailed as “the gold standard.”

Read his whole piece here.

Stanley Kurtz says Eugene Volokh is being naïve on the Nebraska same-sex-marriage ruling.

You’ll want to read Charles Krauthammer today:

Two hundred years of tradition has been radically and unilaterally changed by the minority. Why? The reason is obvious. Democrats have not had a very good run recently in the popularly elected branches. Since choosing the wrong side of the culture wars of the 1960s, they have won only three of the past 10 presidential elections. A decade ago they lost control of the House for the first time in 40 years, and now have lost all the elected branches. They are in a panic that they will lose their one remaining ability to legislate — through the courts.

Going “nuclear,” he says, is simply “restoration.”

Here’s Eugene Volokh on the Nebraska decision.

Richard, I agree with you. But isn’t the main problem with Balkinization that it doesn’t actually believe in republican democracy?

If Prof. Balkin believes the Democrats have too little power given their purported public support (a systemic critique that, not surprisingly, was unheard when President Clinton won the presidency with 42 percent of the vote and enjoyed majorities in both houses of Congress in 1992), doesn’t that mean he simply doesn’t accept the majority-rule outcomes of our system? How can it be, moreover, that the propriety vel non of a strategy like the filibuster hinges on the degree to which a party is unsuccessful in convincing the country of the rightness of its policy positions? “The worse we do the better we deserve to do” — makes the filibuster sound like affirmative action for underachieving social engineers.

that the reasoning in today’s Washington Post editorial is very weak. Wagging its finger at House Judiciary chairman James Sensenbrenner for his remarks on Monday at Stanford University, the Post has this to say on the option of impeaching judges, which Sensenbrenner steered clear of: “Judicial independence has no meaning if Congress reserves the right to remove judges from the bench when it disagrees with their opinions.” Well now. I agree with NR’s view in its editorial in the May 9 issue that impeachment is practically useless today because there are simply too many “bad apples”: where would one start, and where would one stop? But the Post effectively takes the position, “What’s the Constitution between friends?” There’s your opinion, there’s my opinion, and there’s the Court’s opinion of what the Constitution means. So what’s to worry about? You wouldn’t retaliate against those poor helpless judges just because of what they think, would you?

This won’t do. The reason there is so much attention paid to the judiciary today–the reason a new blog like this one is such a good idea–is that the effects of judicial supremacy over the interpretation of the Constitution have become so obviously disastrous for the Republic. A judicial opinion is far more than the “opinion” anyone else might have: it is the giving of reasons for a decision on the practical meaning of the Constitution, and in the usual dispensation nowadays (embraced every other day by the Post), if that opinion is announced by the Supreme Court, it is itself an authoritative statement of the law of the land, as good as the Constitution itself at all times and places, until and unless the Court itself changes its mind.

The Post appears committed to two ideas that are rationally incompatible but nevertheless have been historic bedfellows: judicial supremacy and the “living Constitution.” The first holds that the final and ultimate arbiter of all questions regarding the meaning of the Constitution is the U.S. Supreme Court. The second holds that the Constitution has no fixed meaning of its own, from which it follows that there are no correct and incorrect interpretations of it–only “progressive” and “reactionary” meanings to be struggled over by contending political forces seeking authoritative control of public policy. A softer, more “postmodern” version of this second idea is that the Constitution is radically indeterminate in its meaning, capable of accommodating just about any “creative” opinion about its interpretation.

How anyone attached to republicanism could hold both these thoughts together is a fair question. The Post avoids the difficulty by suppressing (just for today) its usual support of judicial supremacy, in order to advance the view that all kinds of “opinions” about the meaning of the Constitution ought to be treated with the utmost tolerance. But if we remember that contemporary orthodoxy says the rest of us have to live, like it or not, with whatever the Supreme Court says the Constitution means, and if we believe (what the Post implicitly denies) that it matters whether the Court gets it right or gets it wrong, we can think more clearly about these matters than the Washington Post.

On Judge Bataillon’s theory, don’t opponents of same-sex marriage in Massachusetts have a federal case? The Massachusetts court infringed on their “associational political rights,” or whatever he calls this judicial invention, by forcing them to pass a constitutional amendment, rather than persuade the legislature, to see their views prevail.

Professor Jack Balkin of the Yale Law School is a prominent and important constitutional law scholar. And, he runs a blog, “Balkinization,” where his latest post explains, from his perspective, “what is at stake in the nuclear option”. He writes: “[T]he controversy is about more than whether these seven individuals become federal judges. It is about the relative power of the two parties going forward and about the likely content of constitutional law in the next generation. Both of these things are eminently worth fighting about.”

In particular, Balkin contends that–because the Republicans “currently hold all three branches of government”, and have won the “constitutional trifecta”–the filibuster is the only tool available to Democrats (who, Balkin insists, have “too little” power “given their public support”) hoping to derail President Bush’s efforts at “partisan retrenchment.” This is a strategy in which “a determined President stocks the life-tenured federal courts with ideological allies. Through this strategy (1) the President can alter the positive law of the Constitution by tipping the working majority on the Court in the direction of his ideological allies; (2) the President can assure a more friendly federal bench that will cooperate with and support his legislative and policy initiatives; and (3) the President can install his ideological allies in life tenured positions where they will continue to have influence long after the President has retired and his Party has lost power in the political branches.”

Professor Balkin is right about this: It really does matter who ends up sitting on the federal courts, because–given the extent to which we have “constitutionalized” nearly every important policy and moral debate–the views and premises of today’s nominees will likely shape our law and society well after the President who nominated them has left the political scene.

Professor Balkin is wrong, though, to frame as some kind of ominous power-grab the utterly unremarkable efforts of a reelected Republican president to appoint judges who appear likely to interpret the Constitution in a way that coheres with that president’s understanding of the rule of law, the role of the judiciary, and the structure of our federal system. To the extent the “partisan retrenchment” theory is helpful, it cannot apply only when one disapproves of the president and his “ideological allies.”

I wouldn’t get carried away, Rick, about the way “most people” think “about the role of courts, the rule of law, and the structure of the Constitution.” Most people don’t think much about these topics. There are ways to describe conservative legal positions that will command majority assent; there are ways to describe liberal legal positions that will also command majority assent. That said, I do agree that we would be better served by arguing about the superiority of conservatives’ underlying view of judicial power and the Constitution to liberals’ view of the same than by arguing about procedural matters, the deference that Congress allegedly owes to the president’s nominees, the alleged impermissibility of considering “ideology” in judicial confirmation, etc.

Ed Whelan makes a number of good points about the relation between these topics on NRO today. I’ve read the Michael McConnell article to which he refers, however, and am not wholly persuaded. I think there’s another possible answer to be given: A restrained view of judicial power that prevents Brown from taking place also keeps the Civil Rights Cases from taking place either, and allows the federal Congress to stop Jim Crow. If we’re doing counterfactual history, there’s no reason to start it in 1954.

So, Senator Reid has an FBI secret which will end the war over Henry Saad. (See post by Sean Rushton.) And Senator Schumer feels like he is being whacked upsides the head with all these renominations. (See Jonathan Adler’s post.) Maybe it’s just me, but Rick Garnett’s call to “Get to the Merits!” seems like a pretty good idea right about now.

Assuming that the merits have at least something to do with abortion, the filibusterers are getting more extreme by the day. For that reason Republican senators should be prepared to go beyond arguments about competence and fair hearing–probative thought those points are–and argue for these judges by arguing in favor of substantive positions on abortion and Roe.

Priscilla Owen an “extremist” for upholding a parental notification law? Not according to every poll I have ever seen. Just the other day a score and more Congressional “pro-life” Democrats announced legislation to winnow out (through various means short of prohibition) ninety-five percent of this country’ abortions. The headline I wish we saw but did not: “Dems declare that nineteen of twenty abortions should not occur”. Quondam conservative New York Times columnist David Brooks is the most recent of a growing line journalists to call for overturning Roe–and it helps that liberal scholar David Garrow (in the latest Legal Affairs) how much of the Roe opinion was jerry-rigged by Blackmun’s clerks.

Come to think of it, on almost all the issues mismanaged by the courts over the last generation–church-state, crime and punishment, marriage, pornography–the U.S. has become a red state. The filibusterers are “extremists” on procedure, tactics, rhetoric–and on the merits of all these issues, too.

A federal judge (Joseph Bataillon, a Clinton nominee) has struck down a state ban on same-sex marriage. Nebraska voters amended the state constitution to define marriage as the union of a man and a woman. The judge, following the reasoning of the Supreme Court’s decision in Romer v. Evans (1996), ruled that the amendment had infringed on the rights to political participation of advocates of same-sex marriage: They can’t get their way just by persuading the legislature, since they would also have to overturn the amendment. The reasoning, like the reasoning in Romer (which prevented localities from passing laws against discrimination against gays), strikes me as awfully shaky.

Here’s what Justice Scalia said in dissent from Romer: “The central thesis of the Court’s reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court’s opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature–unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court’s theory is unheard-of.”

At 12:57 today, Senate Minority Leader Reid said the following on the Senate floor:

HENRY SAAD WOULD HAVE BEEN FILIBUSTERED ANYWAY. HE’S ONE OF THOSE NOMINEES. ALL YOU NEED TO DO IS HAVE A MEMBER GO UPSTAIRS AND LOOK AT HIS CONFIDENTIAL REPORT FROM THE F.B.I., AND I THINK WE WOULD ALL AGREE THERE IS A PROBLEM THERE.

Now, it is unclear whether non-Judiciary Committee Senators are even allowed to read a nominee’s FBI file, which are highly confidential, but they sure as heck should not be talking about it on TV from the Senate floor. Can you think of a better way to trash someone’s reputation–say that there is bad stuff from an FBI investigation in a file somewhere and leave that hanging? This is character assassination of the lowest order and completely improper.

His latest offer is to “allow” votes on three of the four Michigan nominees if Frist doesn’t push the filibuster rule change, according to this AP report. In the same story, Senator Schumer says the renomination of filibustered nominees was a “thumb in the eye” and the recess appointment of Bill Pryor was a “slap in the face.” So how did Schumer feel about Clinton’s recess nomination of Roger Gregory to the Fourth Circuit.

CBS, AP, and other outlets reported earlier this week that Starr had said that getting rid of the judicial filibuster would be a “radical, radical departure from our history and our traditions, and it amounts to an assault on the judicial branch of government.”

This seemed like a very odd thing for Starr to say, so I contacted him.

He forwarded to me an email he had sent to someone else who had asked about this matter:

“In the piece that I have now seen, and which I gather is being lavishly quoted, CBS employed two snippets. The ‘radical departure’ snippet was specifically addressed — although this is not evidenced whatever from the clip — to the practice of invoking judicial philosopy as a grounds for voting against a qualified nominee of integrity and experience. I said in sharp language that that practice was wrong. I contrasted the current practice . . . with what occurred during Ruth Ginsburg’s nomination process, as numerous Republicans voted (rightly) to confirm a former ACLU staff lawyer. They disagreed with her positions as a lawyer, but they voted (again, rightly) to confirm her. Why? Because elections, like ideas, have consequences. . . . In the interview, I did indeed suggest, and have suggested elsewhere, that caution and prudence be exercised (Burkean that I am) in shifting/modifying rules (that’s the second snippet), but I likewise made clear that the ‘filibuster’ represents an entirely new use (and misuse) of a venerable tradition. . . .

“[O]ur friends are way off base in assuming that the CBS snippets, as used, represent (a) my views, or (b) what I in fact said.”