Bench Memos

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Pryor and the Hitching Post Case


Senator Schumer also misrepresented Bill Pryor’s record on the Hitching Post Case. Mobile Register editorialist Quin Hillyer explained on NRO two years ago.

Pryor favors wife beating?


I heard that bit, too, K-Lo. Schumer said Pryor is “opposed to protecting women from being beaten by their husbands” because he views part of the Violence Against Women Act as beyond Congress’s legitimate power. Here’s some of what CFJ put out on Pryor and VAWA:

Even in light of his enviable record on women’s issues, General Pryor’s shrill detractors have nonetheless distorted the position he took in an amicus brief in the Supreme Court case of United States v. Morrison, where the Court held that the Violence Against Women Act’s (“VAWA”) civil remedy was beyond Congress’s Commerce Clause powers. General Pryor did not argue that the whole Act was unconstitutional, as some special interest groups have claimed. Rather, the central point of Alabama’s argument was that prohibiting violence against women was absolutely necessary – but that doing so historically has fallen within the domain of state and local governments. Alabama simply argued that state and local officials are better equipped than the federal government to solve the civil justice aspects of the problem of violence against women.

The very day the Morrison decision was handed down, General Pryor reiterated Alabama’s commitment to eradicating gender-motivated violence. He noted, “States have led the way in battling domestic abuse and rape. The safety of women – and men – is best protected by encouraging and strengthening state efforts, not by allowing the states to pass the buck to federal bureaucrats and judges.” Indeed, when VAWA initially was proposed, a number of federal judges and their representative organizations opposed the law for the same reason: its tendency to displace traditional state adjudications. In 1991, the United States Judicial Conference objected to VAWA because it feared the legislation would “flood the federal courts with cases better handled in state courts.” The Judicial Conference is headed by the Chief Justice of the Supreme Court and includes the Chief Judges of thirteen federal appeals courts and a district judge from each of the nation’s twelve geographical federal circuits. Kathryn Coumanis, the Executive Director of Penelope House, knows the truth about General’s Pryor’s record on women’s issues. She had the following to say about him: “The entire Board of Directors of Penelope House Family Violence Center here in Mobile, AL, unanimously asked that I include them in support of this nomination. Attorney General Bill Pryor has been a long time supporter and advocate of Penelope House, and has worked tirelessly to protect women and children from the dangers of domestic violence. . . . When Bill Pryor raises his voice in support of our mission, it enables us to reach every member of our community. . . . Bill Pryor will bring to the Federal Bench the qualities that all Americans cherish. He is loyal to his State and his Country, is a man of princip[le] and integrity, is highly intelligent, and most of all is a man who has immense compassion and respect for his fellow human beings.”


Would It Be Wrong to Point Out


That many of us say “Please, God, no more Souter” type prayers?

Gee Whiz


No wonder some people hate Bush so much. He nominates (and recess appoints) a man who is cool with women being beaten (re: his problems with the Violence Against Women Act). That’s the sound of the quality debate from Charlie Schumer on the floor right now.

Dick Durbin, Too


Thinks that Pryor has just been lying low. It’s been “one year” under “close scrutiny,” a “probationary period.” It doesn’t count. And his record in Alabama as attorney general don’t mean nothing to Durbin and co either.


There Go Those White Christians Again


On the Senate floor just now, Dick Durbin ran off some of the usual Left talking points on Bill Pryor and the Voting Rights Act (see Sean Rushton on here). Durbin said that Pryor could not appreciate the value of the right to vote because he is a white man.

Spare Me


Dick Durbin is going on the Senate floor right now about how Republicans are wrong to say that any questions about public issues (like one’s opposition to abortion that fits with his religious beliefs). Dems are asking legitimate questions, is his contention. Would those legitimate questions include those Russ Feingold asked about his family vacation plans?

Randy Barnett’s Article Today


Kudos to Randy Barnett for today’s NRO piece. However, two minor areas of disagreement. I don’t see liberal distress with Stevens’s position; I see the opposite. And I don’t see the cause of medical cannabis receiving any lift here. Indeed, perhaps Kennedy and others in the majority were motivated to reach a bad constitutional result because of their discomfort with the product, as illogical as that may be in this case. But this is a definite and significant setback. Nonetheless, Randy’s advocacy was outstanding.

Ginsburg vs. Mother’s Day: Easily Forgettable


One detail of Al Franken’s mistaken assertion that Ruth Bader Ginsburg never proposed the abolition of Mother’s Day merits further attention. After listening to an audiotape of Franken’s remarks on his Air America show, I am revising the unofficial transcript to make clear that Franken was quoting Brookings Institution scholar Thomas Mann in his grand conclusion:

I think it’s an urban myth from conservatives. We got this from Thomas E. Mann, a Brookings Institute Senior Fellow on Government Studies. . . . He told us, “I now have it on the highest and closest authority that Ruth Bader Ginsburg has never, in any setting, proposed doing anything with Mother’s Day.”
So who is this “highest and closest authority” that Franken and Mann rely on? The only plausible alternatives are Ginsburg herself or her husband (after consulting with Ginsburg). Either way, it seems clear that Franken was signaling to his Air America listeners (both of them) that Ginsburg herself was the ultimate source of his (mis)information.

Let’s assume that Franken was not deceiving his audience on this point. Let’s assume, in other words, that Ginsburg was his ultimate source. So what?

I don’t doubt that Ginsburg could honestly have believed that she never proposed to abolish Mother’s Day. Indeed, it is just this possibility that I find so disturbingly revealing.

If, after all, you have dedicated your career to the ideological fiction that men and women are, except for trivial differences in plumbing, absolutely identical (rather than, say, of equal dignity and wonderfully complementary in nature). . .

If you have such disdain for the Founders that you purge their words of imagined gender bias and entrench your own policy preferences into constitutional law in place of the real Constitution. . .

If you regard the traditions of the American people as benighted. . .

If you pretend that abortion and even the utter barbarity of partial-birth abortion are constitutional rights (see Stenberg v. Carhart) and that the Constitution requires that taxpayers fund them (see Ginsburg’s chapter on the 1976 Term of the Supreme Court in a book titled Constitutional Government in America). . .

If you believe that it is bigotry not to elevate homosexual relations to the status of traditional marriage (see Lawrence v. Texas). . .

If you think that the Constitution can plausibly be read to prohibit laws against polygamy and prostitution. . .

If you oppose the Boy Scouts and Girl Scouts for perpetuating stereotyped sex roles. . .

If you are so removed from reality that you see co-ed prisons as necessary “to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society”. . .

If you recommend that the age of consent for purposes of statutory rape should be reduced to twelve. . .

If you believe that it is your job as a justice to supplant the political process and dictate for all Americans which interests are part of some New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (see Lawrence v. Texas). . .

And if you won’t abide by the same rules (see 5th paragraph here) that you so eagerly impose on everyday Americans. . .

Then it’s hardly surprising that your comparatively modest proposal of abolishing Mother’s Day wouldn’t be memorable to you.

But it is shameful that Democratic senators and the liberal media have the gall to portray Ginsburg as a “moderate” and as in the “mainstream” while they attack President Bush’s outstanding nominees whose records and values are, by any measure, far more in line with those of the American people.

Democrats Running Scared?


Twelve Democrats were among the 67 votes in support of cloture on Bill Pryor’s nomination to the 11th Circuit. These twelve included the seven Democratic signatories to the Gang of Fourteen’s anti-cloture reform agreement (Byrd, Inouye, Landrieu, Lieberman, Ben Nelson, Pryor, and Salazar). Of the five additional Democratic votes for cloture, four–Bingaman, Carper, Conrad, and Bill Nelson–are up for re-election in 2006, and the fifth, Tim Johnson of South Dakota, has a tenuous hold on his seat.

This would seem to provide an encouraging read on how the politics of judicial confirmation are playing out among American voters.

He Went to Catholic School


He was editor of his law school law review. He believes in truth and justice and the American way. He likes apple pie and…(I made the last one up, I have no idea if Judge Pryor likes apple pie…yet.)

I’m just picking on the Senate.

I’m listening to the Senate debate on Bill Pryor. Jeff Sessions (who’s great on this) is getting into substance now, but a) I don’t really get having these post-cloture debates. b) Hasn’t everyone said everything there is to say? I haven’t heard a new argument about Bill Pryor in years (well, ok, except for libs suggesting he’s just hiding his extremism when faced with the reality of his recess-appointment record on the bench).

Well, at least no one is crying..yet.

Of course, all of this is just to say: I really want to know what he thinks of dogs.

More Promising Judge News



As a bonus, the Senate will confirm on Thursday Michigan nominees David McKeague and Richard Griffin, nominated to the 6th Circuit in Cincinnati, said Majority Leader Bill Frist, R-Tennessee.

While those two weren’t part of the deal to avoid a fight over judicial filibusters, Democrats withdrew their objections to their confirmation during the back-and-forth negotiations.

Good Sign from Specter on Kavanaugh


Pittsburgh Post Gazette:

“I think it’s wishful thinking by the Democrats that he won’t move forward,” Tobias said. Senate Judiciary Chairman Arlen Specter, R-Pa., said of Kavanaugh in an interview yesterday, “I intend to push him.”

P.S. 2


The Brown vote and the Pryor cloture vote rolls can be viewed here.

P.S. on JRB Vote


Senator [Jeffords] did not vote.

67 Yays-32, Pryor Cloture Vote Done


We’re almost there…

DraftPrado Update


Orin Kerr did some digging into the folks behind It turns out I was right to be cynical, as these folks hardly have a “nonpartisan” track record, and explicitly endorse a “progressive” agenda. This isn’t about consensus. It’s about derailing a conservative president’s nomination of a conservative nominee.

The Dem Who Voted for JRB


was Ben Nelson

Justice Brown: “Dissenter from Liberal Orthodoxy”


Yes! It’s a great moment.

As James Taranto in Best of the Web Today aptly put it today, Justice Janice Rogers Brown, the daughter of Alabama sharecroppers just confirmed to the United States Court of Appeals for the D.C. Circuit, is “a black dissenter from liberal orthodoxy.”

Brown confirmed 56-43



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