Bench Memos

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All Options Remain Open


Sen. Cornyn on the deal:

I was not a party to this deal. I firmly believe we should restore the Senate tradition of majority vote on all judicial nominations. And I am disappointed that the Senate did not do that last week.

It is nevertheless important to recognize three important elements of the deal reached by these 14 senators:

First, although it doesn’t solve the problem today, the deal does keep all options open — including, of course, the Byrd option — for solving the problem in the future.

Second, with Owen’s confirmation, it should now be settled that disagreement over judicial philosophy is not an “extraordinary circumstance” — and, thus, no justification for a filibuster. Call it the “Owen standard.” Senators should vote their conscience, but debates over judicial philosophy and disagreements about past rulings are no grounds for violating Senate tradition by imposing a supermajority voting requirement for confirming judges.

Third, should the Owen standard be violated and a baseless filibuster against a judicial nomination be launched in the future, that would be a violation of the agreement — and, thus, grounds for the use of the Byrd option to restore Senate tradition.

AP Dissects Deal-Making


Howard Bashman highlights this interesting AP story on how the judge deal was negotiated and struck. Among other things, the story notes that within minutes of the deal, Senate Minority Leader Harry Reid sought assurances from participating Democrats that they would vote to filibuster judicial nominees William Haynes (4th Circuit) and Brett Kavanaugh (D.C. Circuit), but that Senator Ben Nelson balked. Senator Mary Landrieu reportedly agreed in Reid’s office, but her office maintains that no commitment has been made.


The Washington Post’s New Aversion to the F-Word


The Washington Post’s front-page headline this morning—”Democrats Extend Debate On Bolton“—struck me as curious. Why the longer, less lively phrase “extend debate” rather than the punchy “filibuster”?

As it happens, a search of the Post’s archives reveals that the Post has used the term “filibuster” in headlines a total of 1,775 times. Until today, it had never used “extend debate” in a headline as a synonym for “filibuster”. (The only time the Post had ever previously used “extend debate” in a headline was in a 1999 article titled “Commissioners Extend Debate on Teacher Fee”.)

Might the Post be providing rhetorical cover for Democrats?

Roe: Invention, Overreach, Arbitrariness, Textual Indifference


Given the central role that Roe v. Wade plays in the Left’s battle to maintain control of the Supreme Court, it is encouraging that a number of today’s thoughtful liberals are coming to recognize and publicly acknowledge that Roe is jurisprudentially indefensible and deeply harmful to the proper functioning of the American political system. (There was, of course, a flurry of liberal criticism of Roe in its immediate aftermath, but political correctness silenced such criticism over the last couple decades.)

An example on the jurisprudential point is Will Saletan’s new review of Linda Greenhouse’s sympathetic biography of Justice Blackmun. Saletan concludes from Greenhouse’s account that “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.” (Oddly, Saletan’s next sentence states, “But they also implicate his critics,” even though the only supposed critic he discusses is Chief Justice Burger, who fully joined Blackmun’s opinion in Roe while also writing a separate concurring opinion.)

thursday night


Frist just filed cloture on Janice Rogers Brown and William Pryor, right before they went to recess. So they’re up when the Senate is back.


Vote-Count Report


Replacing Priscilla Owen


Texas conservatives are happy that Priscilla Owen will finally be sitting on the Fifth Circuit Court of Appeals—but they have reason to worry about who will now replace her on the Texas Supreme Court. She has been a conservative powerhouse there. Republican governor Rick Perry, facing a possible primary challenge from Senator Kay Bailey Hutchison, is being advised by some to appoint a woman to replace her. That imperative is in some practical tension with the objective of getting another solid conservative on the court.

To the extent that there is a conflict—if the decision ends up being between a conservative man and a not-very-conservative woman—Perry is probably better off picking the conservative. People who care a great deal about the number of women in high office are going to vote for Hutchison over Perry (or, even more likely, to vote in the Democratic primary). If Perry survives a Hutchison challenge, on the other hand, it will be because he rallied the conservative base.

Two Get Through, Others Stalled


The Senate Judiciary Committee approved two Bush nominees for the U.S. Court of Appeals for the Sixth Circuit–Richard Griffin and David McKeague. Both are nominees from Michigan who were previously blocked by Senate Democrats in retaliation for Republicans’ blocking some of President Clinton’s Michigan nominees. Action on two other appellate nominees, Terrence Boyle and Brett Kavanaugh, scheduled for today was put off yet again. This AP story does not indicate why the Boyle and Kavanaugh nominations were held over, though there is speculation that the Kavanaugh nomination is doomed by tacit agreement of the “Gang of Fourteen.”

“Dead Loss for the Republicans”


Would Frist have had 50 Votes?


Perhaps I’ve missed it, but I would have thought that there would be a lot of discussion whether Senator Frist would have had the 50 votes he needed (together with the VP’s tie-breaking vote) for changing the filibuster rule if the agreement among the 14 senators hadn’t been reached. Stated somewhat differently, it cannot be presumed that all seven Republicans who signed the agreement would have opposed the Frist proposal if they had faced a binary choice between that proposal and doing nothing. Those of us who oppose the agreement would have far more reason to be infuriated with the Republican signatories if the agreement actually prevented 50 senators from approving the Frist proposal. Conversely, if the Frist proposal would not have passed, those who defend the agreement could argue that the agreement has produced benefits (the confirmation of Owen and, presumably, the imminent confirmations of Brown and Pryor) that would not otherwise have occurred. (Of course, this argument by defenders of the agreement would have something of a bootstrapping quality to it, since it would depend on the judgment that it was defensible for Republican senators not to support the Frist proposal.)

For what it’s worth, a very knowledgeable source assures me that Frist would have had 50 votes–specifically, that Dewine and Graham would have supported the Frist proposal if the agreement hadn’t been reached (and that no non-signatories would have jumped ship). This same source tells me that Warner, not McCain, was the real driving force in putting the agreement together.

Far Be it From Me...


To get in a wrestling match with John Podhoretz, who calls those of us who disagree with his assessment of The Deal on judicial filibusters “unhinged.” On John’s side is Linda Chavez, who, as noted yesterday in The Corner, calls it a better deal for the Right than for the Left “in the long run.” Could be, but that could turn out to be a very long run indeed. Byron York, in The Hill, notes the Democrats’ embrace of incoherence. Any takers on a bet that the Democrats don’t care about looking coherent in this argument? And this morning, George Will takes a pretty balanced view of The Deal, and leads by saying it was reached by “seven Democrats essentially supported by their party’s base and seven Republicans at odds with theirs.” For today at least, Will appears to count himself among the unhappy GOP base. I will happily hang my hat this time where York and Will have put theirs.

Greens Vs. Judges


Earthjustice praised the judge deal, in part because it suggests William Myers will never be confirmed. It has also issued a press release lamenting confirmation of the “anti-environmental” Priscilla Owen. I’ve addressed these charges here and here.

A Unanimous Nominee?


Legal Affairs’ Debate Club considers whether there is a potential Supreme Court nominee who could be confirmed 100-0. Orin Kerr has an idea of one candidate, John Roberts, who should be confirmed 100-0, but I wouldn’t bet on it.

Four More in the Queue


Today should give a fairly clear indication of what the deal means for those nominees it did not explicitly mention as the Senate Judiciary Committee is scheduled to consider the nominations of four appellate nominees: Terrence Boyle, Brett Kavanaugh, Richard Griffin, and David McKeague.

Questions for Senators Byrd and Landrieu


More than four years ago, on May 9, 2001, President Bush nominated Texas Supreme Court Justice Priscilla Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. Today, both Senator Byrd and Senator Landrieu voted to confirm her nomination. But on four separate occasions in 2003, both Byrd and Landrieu voted in support of the Democrats’ successful filibuster of her nomination.

On what principled basis do Byrd and Landrieu justify having filibustered a nominee whom they now vote to confirm? Why have they contributed to a four-year delay in Owen’s confirmation? Do they take the voters of West Virginia and Louisiana to be fools who can readily be duped into thinking that today’s vote marks Byrd and Landrieu as more responsible than their Democrat colleagues? Will each, in the fashion of John Kerry, boast to have voted for her after voting against her?

Left Annoyed by the Deal, Con’t


The Importance of Byrd and Landrieu


What is important about the fact that Senators Robert Byrd and Mary Landrieu voted for Justice Priscilla Owen? Byrd and Landrieu are both part of the Gang of 14: they are signatories to the document that allows filibusters only in “extraordinary circumstances,” which now, by definition, did not obtain in the case of Justice Owen, who was painted for four years as an “extremist.”

“pretty good for conservatives.”


I’m slow to link: David Frum on the deal.

Owen Confirmation: What It Means about “Extraordinary” and “Ordinary” Circumstances


The Owen confirmation has now firmly established that the predictable attacks from liberal pressure groups, Chuck Schumer, Ted Kennedy, and Harry Reid, asserting that President Bush’s judicial nominees are “extremists,” does not constitute an “extraordinary circumstance.” Rather, it is truly an “ordinary circumstance,” which we can expect to see more of, and which does not in any way justify a future filibuster under the 14 Senators’ “Memorandum of Understanding on Judicial Nominations.” I’ve issued a press release to that effect, at the Judicial Confirmation Network website.

re: Roll Call


also worth noting: Ben Nelson and Chafee voted against.


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