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Bench Memos

NRO’s home for judicial news and analysis.

On Professor Bainbridge



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Jonathan Adler draws our attention to the always-thoughtful and usually-right (in both senses: conservative and correct) law professor Stephen Bainbridge. Bainbridge dissents from the conservative chorus on “the deal.” He instead praises the filibuster as “profoundly conservative,” for it allows a “resolute minority” to “stand athwart history” and to delay if not stymie change. This is, evidently, a good thing. For Professor Bainbridge it is, at least, “conservative,” and that is good enough. Besides, he says, we may need the filibuster if a Democratic president nominates Larry Tribe for the Supreme Court.

I am reluctant to disagree with my friend and former teaching colleague on this, or on any other issue. But this time, for once, Bainbridge is mostly wrong. Now, “mostly wrong” is also “slightly correct”: no doubt the filibuster does delay, if not stymie, change. And let’s not quibble over whether it is inherently or “profoundly” conservative to introduce change slowly. If Bainbridge wants to say that conservatives are just people who favor (invariably?) protracted, organic change, so be it. But that use would be entirely non-evaluative; it implies nothing about justice or what is right. It is just a definition. In reality, however, delay can be profoundly unjust, as it is when the protection of homicide laws is denied to a whole class of human beings, resulting in deaths numbering in millions. Not a single abortion performed today, tomorrow, next week, or next year (or the year after that) is any less unjust because of the “conservative” view that legal change on this issue ought to occur slowly.

Now, overturning Roe so that each state gets to decide what abortion laws it wants is a pretty “conservative” idea, too. And that is what a lot of so-called conservatives had invested in the constitutional option undermined by “the deal”. Besides, on the precise issue before the House–whether the “advice and consent” of the Senate to the president’s judicial nominees should require a supermajority vote–there is no intrinsically “conservative” view. It is easy to imagine slowing the confirmation process down.

Why call a leisurely pace “conservative”? Or, if you prefer, call it “conservative.” Either way, does that mean I should change my opinion about the Constitution? The Constitution could have required House concurrence. But it did not. The Constitution could have required the two-thirds vote in the Senate that is required for treaties. But it did not. The Constitution could have required that nominations originate in the Senate, perhaps with presidential concurrence, a sort of veto which could be overcome by later supermajority vote in the Senate and/or House. But it did not. Is the Constitution not “conservative”? Is it “liberal”? Who is to say.

I am not personally worried about a Tribe nomination to the Supreme Court, so long as even just one senator has a copy of Henry Abraham’s book.

re: Dirty Deal



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That’s what the NYTimes has been reporting, too, Brad. One (or at least I) worries if that’s what people are willing to talk about publicly, there may be worse yet to be revealed.

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Dirty Deal?



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I have just heard from excellent sources that a number of Hill reporters believe that there is an oral side deal under which two other very good men have been prospectively thrown overboard by the Republican 7, notwithstanding the “extraordinary circumstances” pledge: Kavanaugh and Haynes. If true, this would be the dirty deal of all time and a disgraceful surrender executed under cover of darkness. It would also be an ominous portent of how the written deal will be implemented in the future.

At this point, this is only rumor, but it’s imperative for the press, the groups, and the Republican leadership to demand a flat, on-the-record confirmation or denial from each of the seven Republican signatories. Immediately. If there are terms of this deal beyond those in writing, the public has a right to know.

Feeding the Monkey(s)



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Professor Bainbridge and certain other libertarians have long been opposed to triggering the constitutional option, and they’ve been unpersuasive in my view.

As for consultation, I was involved in the judicial vetting process for about twelve months while serving in the Reagan White House. Much deference was given to homestate senators over district court nominations. No deference was given to any senator respecting circuit or Supreme Court nominees. Consultations at that level involved working with key Republican senators, and possibly sympathetic Democrats, to strategize the best way to achieve confirmation. This approach was critical to ensure that senators didn’t think they could have the same kind of influence over the circuit and Supreme Court nomination process that they were allowed on the lower courts. This has always annoyed certain senators, who want to play a larger role in the process. And I am not surprised this is in the agreement, given the huge egos of the seven “moderate” Republicans involved in this farce … I mean, MOU.

Re: “We Cannot Allow Filibusters to Come Back”



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Sen. Sessions sounds like the Mets sounded last Thursday — a lot of brave talk before the games start. Then the games actually started, and the Yankees beat their brains in … like they usually do.

Imagine what it’s like to root for both the Mets AND the GOP. I wish I only had to imagine …

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Reax Round-Up



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TKS has a nice round-up of right-leaning blogs on the deal.

A Reader Says



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“Nan Aaron just said on Diane Rehm that an appointment to the Supreme Court is by definition an ‘extraordinary circumstance.’”

What Am I Missing?



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Ted Kennedy is on the floor of the Senate arguing that the deal sends a clear message to the president that extremists are unacceptable. Then how are Pryor and Owen and Brown acceptable, Senator? That seems unspinnable for the Left.

A Couple Clarifications/Rejoinders



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1. Some have questioned my observation here that “the Republican signatories’ agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories’ living up to their end of the bargain.” I would like to explain why it is both legally wrong and tactically imprudent to dispute this point.

Any agreement must be read against background contract principles. One of the most elementary principles of contract law is that a material breach by one part excuses continued performance by the other. So there is, I submit, no question that a Republican signatory is not bound to his promise to oppose cloture reform if the Democrat signatories do not live up to their end of the bargain.

Besides being legally wrong, it is tactically imprudent to read the agreement any other way. The agreement is no longer at the drafting stage; it is now a fait accompli. Some Republican signatories will undoubtedly look for excuses not to change their position down the road. Misreading the agreement to suggest that they are bound under all circumstances to oppose cloture reform will give them something to hide behind.

Some readers have suggested that my reading of the agreement is too optimistic. I have rarely been accused of optimism, and I am innocent of the charge here. I don’t trust the Republican signatories to recognize and act upon a breach when one occurs. Intense pressure will need to be placed on them.

2. I think that Jonathan’s disagreement with my comments on pre-nomination consultation is both far less and far greater than he suggests. I agree that there has been a practice of pre-nomination consultation with home-state senators. But Jonathan’s examples of the non-nominations of Peter Keisler and Chris Cox prove my point that this consultation leads to mediocrity. It would be difficult to find a finer lawyer with a more judicious temperament than Peter Keisler. And although I don’t know Chris Cox, I understand that he is also outstanding. The fact that pre-nomination consultation doomed their nominations supports my point that consultation is the enemy of excellence and that anything that increases the Senate’s pre-nomination role is bad.

Simply put, most senators don’t care about, and are ill-equipped to discern, quality nominees. They care about raising money. Jonathan doesn’t think that consultation is a big deal. But it is impossible to identify all the outstanding potential nominees who have been overlooked because they are not fundraisers and cronies of senators. Consider this: Why is it that the D.C. Circuit has consistently had more outstanding judges than other circuits? I think a big part of the answer is that there is no home-state senator who can adversely influence D.C. Circuit nominees.

Bainbridge Defends Deal



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Professor Bainbridge answers conservative critics of the deal.

Is “extraordinary circumstances” a Fraud?



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Let’s find out. Before the ink is dry on this deal, the White House and Senate Republican leadership should work together to bring to the floor as quickly as possible all the remaining circuit court appointments, including those of nominees such as Brett Kavanaugh and Jim Haynes, whom the Democrats would previously have had on their hit list. If any of those nominees draws a filibuster, we will know that the deal is a fraud, the Republican moderates who cut the deal will look ridiculous, and the pressure will be back on to implement a permanent, institutional solution. But with each day of distance we get from this issue, the power of further filibusters by the Democrats to embarrass the seven Republican signatories will be less. Moreover, acting on these lower court nominations will, in effect, help set a standard and define “extraordinary circumstances” for a potential Supreme Court appointment. Thus, there’s not a moment to lose: Let’s schedule votes as quickly as possible on all remaining circuit court appointments and put the seven moderate Democrats to the test.

Poor Drafting



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Examination of the actual Memorandum of Understanding embodying the deal reveals something remarkable: there is no explicit linkage between the Republicans’ promise not to support elimination of the filibuster and the Democrats’ promise to use it in the future only in “extraordinary circumstances.”.Indeed, the Memorandum goes out of its way to emphasize that extraordinary circumstances are in the eye of each individual senator, while the obligation not to go nuclear is unconditional during the 109th Congress. What this means is that if the Democrats have entered into this in bad faith, the Republicans will be severely disadvantaged in trying to enforce it. They will be in clear breach if they vote to eliminate the filibuster, but no one will ever be able to prove that the Democrats have violated their commitments in some objective way.

Aren’t there any lawyers up there in the Senate?

“We Cannot Allow Filibusters to Come Back”



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Jeff Sessions is pretty adamant on the floor right now. Summertime fireworks, kids. Good faith, food gaith.

More Reid



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Reid just said “all filibusters are extraordinary.”

Reid



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Harry Reid just said on CSPAN that there will be filibusters of judges.

Owen



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Frist just announced expectation of confirming Owen this afternoon.

Morning Business



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On the Senate floor: Reid just offered to go straight to a vote on Owen, without a cloture vote. Frrist said there will be a cloture vote, maybe move to other judges, and to Bolton. Reid doesn’t like that idea.

“No Victory”



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Andy McCarthy doesn’t agree with John Podhoretz.

Dealing with the Deal



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Here’s our corporate take on what went down in the Senate last night. Discuss amongst yourselves.

That Makes Seven



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If the NYT story K-Lo linked to last night is to be believed, in the end Senate Democrats will have been successful at blocking seven of Bush’s appellate nominees: Miguel Estrada, Charles Pickering, Carolyn Kuhl, Henry Saad, William Myers, WIlliam Haynes, and Brett Kavanaugh. An eighth, Claude Allen, was never filibustered, but clearly would have faced opposition had he been renominated.

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