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Bench Memos

NRO’s home for judicial news and analysis.

Brown Debate Begins



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The Senate should begin debate on Justice Janice Rogers Brown this afternoon, and a vote on her nomination could come as early as Wednesday. A vote on Bill Pryor could come at the end of the week.

Supreme Court Curveballs?



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Could a Supreme Court decision in a pending case impact the debate over Bush’s judicial nominees? With decisions pending in the ten commandments, eminent domain, and medical marijuana cases, that’s a real possibility. Although the results in these cases are unlikely to be a surprise, the opinions and rationales may contain some surprises. Opinions are due out Monday, June 6–though in what cases we don’t know–so stay tuned.

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Kavanaugh’s No Leaker



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Having worked with Brett Kavanaugh daily in the White House for two years, I can assure you he’s no leaker. During our two years, I don’t believe there was a single leak–of anything–out of the Counsel’s Office. That’s pretty remarkable given the intense public interest in many of the things that were going on during the aftermath of 9/11 and the torrent of press calls that came in. And of course dealings with the press and even leaks are typically much more common and much more accepted in a place like the White House than in a prosecutor’s office.

Brett is the soul of discretion who is, if anything, allergic to press contact. His attitude has always been that the best, safest, and most honorable course for a public servant in the executive branch is simply to avoid press contact and leave it to the communications professionals to worry about press coverage. I would be absolutely amazed if he ever leaked a thing while working for Starr or anyone else.

I think this all got started not by the groups but by a careless suggestion in the press. There was an item (I believe in the Legal Times) earlier this week that made some reference to leak allegations against Brett. Prior to that I had heard nothing about this. I suspect it’s all just a silly game of telephone. The problem with Brett from the Left’s perspective is guilt by association with Ken Starr and President Bush. It’s as simple as that. There’s nothing in his own record or service that realistically would justify any concern on their part. They just believe that, given the company he keeps, he must be bad, bad, bad. In their eyes, there’s not much room for an honest, honorable, principled, and conscientious conservative (could it be they think that description is a contradiction in terms?) in the Whitewater investigation or the Bush Administration. Note, though, that many of the Clinton-side lawyers who dealt with Starr’s office during the investigation will tell you that, from their perspective, he was always one of the prosecutors who could be counted on to be fair and straightforward.

No “Leak Issue” for Kavanaugh



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I was surprised to read a couple recent postings that made oblique references to supposed allegations that Brett Kavanaugh, President Bush’s outstanding nominee to the U.S. Court of Appeals for the D.C. Circuit, might have engaged in leaks while working for Ken Starr’s independent-counsel investigation. It appears that some conservative radio commentators have been defending Kavanaugh against such supposed allegations. In fact, from what I have been able to determine, there is absolutely no “leak issue” concerning Kavanaugh.

I am reliably informed by a knowledgeable source that no one in the Senate or in the left-wing activist groups opposing the president’s judicial nominations has ever alleged any leaks by Kavanaugh. People for the [Un-]American Way’s lengthy screed against Kavanaugh’s nomination criticizes Kavanaugh for being a “Starr protégé” and, in reminding readers what a bad, bad man the admirable Starr was, asserts that “secret grand jury information was intentionally leaked by Starr’s office.” But, notwithstanding PAW’s general willingness to make elaborate leaps, its report does not in any way allege or even insinuate that Kavanaugh was responsible for any such leaks.

I am also reliably informed that any such allegations would be entirely baseless.

It is of course possible that, somewhere in the murky miasma of the loony left, someone is flinging such allegations against Kavanaugh. (It is also possible that Michael Moore and Oliver Stone are collaborating on a new pseudo-documentary implicating Kavanaugh in JFK’s assassination.) But it would be a serious disservice to Kavanaugh to give any such allegations any currency. Among other things, one can easily imagine Senate Democrats claiming that some new buzz about supposed leaks requires further investigation and delay.

Brett Kavanaugh was nominated nearly two years ago, on July 25, 2003. His Judiciary Committee hearing occurred more than one year ago, on April 27, 2004. It is long past time for this outstanding nominee to be confirmed.

We Have Competition



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The National Women’s Law Center has launched a judicial nominations blog of its own, Nomination Watch. It’s been up for scarcely more than a week, and already it’s gone on the attack over William Pryor and Justice Janice Rogers Brown.

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Was Abe Fortas Defeated by Filibuster?



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Ah, the irony. In Wednesday’s edition of The Hill, Byron York pointed out that several Senate Democrats last week had justified their denial of cloture to U.N. nominee John Bolton on grounds of extending debate to procure more information, but that it was NOT a filibuster. While York is technically right to dismiss this argument–by definition a filibuster occurs when a vote of cloture fails–in the context of judicial confirmations, Committee for Justice has argued there is a difference between a temporary denial of cloture for procedural reasons, to prevent a rush to judgment, present new information, etc., versus the permanent veto wielded by Democrats in the 108th Congress.

In fact, last week’s statements reminded me of former Sen. Robert Griffin’s (R., Mich.) words during the debate over Abe Fortas: “[T]hus far, there have been only four days of Senate debate on this very important, historic issue. . . . [A] filibuster, by any ordinary definition, is not now in progress.” And: “An examination of the Congressional Record … clearly reveals that the will of the majority was not frustrated. . . . On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated.”

Next time Democrats cite Abe Fortas as adequate precedent for recent judicial filibusters, just ask them about John Bolton.

The Next Nominees



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Most of the current judicial vacancies are on the district courts, where there is unlikely to be much controversy about the President’s nominees. The key is to watch the handful of appellate nominees, such as that to replace Michael Chertoff or to fill the multiple vacancies on the Ninth Circuit. Howard Bashman notes a list of current vacancies is available here.
And pending vacancies can be found here.

“Bush Poised to Nominate Dozens For Judgeships, GOP Insiders Say”



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WP:

The White House is preparing to send a raft of new judicial nominations to the Senate in the next few weeks, according to Republican strategists inside and outside the administration — a move that could challenge the durability of last week’s bipartisan filibuster deal and reignite the political warfare it was intended to halt.

The Bush administration has been vetting candidates for 30 more federal district and appeals court vacancies that have been left open for months while the Senate battled over previous nominations stalled by Democrats. Now that Democrats have agreed not to filibuster any new candidates except in “extraordinary circumstances,” Republicans are eager to test the proposition.

LCCR v. Brown



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The AP reports that the Leadership Conference on Civil Rights is about to launch an ad campaign attacking the “radical” Justice Janice Rogers Brown, in an effort to defeat her confirmation to the U.S. Court of Appeals for the D.C. Circuit.

Not So Extraordinary



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A Legal Times story on the aftermath of the deal reports that, as expected, some liberal interest groups will find an “extraordinary circumstance” just about anywhere:

Among the four most widely discussed potential high court nominees–U.S. Court of Appeals Judges J. Michael Luttig of the 4th Circuit, John Roberts Jr. of the D.C. Circuit, and Michael McConnell of the 10th Circuit, and Attorney General Alberto Gonzales–all have past statements and court rulings that, liberal interest groups say, could arguably meet the new, elevated filibuster threshold.
By this standard, the appointment of any conservative to the Supreme Court by President Bush would be “extraordinary.”

Thought of the Day



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Rush Limbaugh made a good point today: As the media debates whether W. Mark Felt was great, near great, or just a regular guy who accidentally saved the nation from presidential corruption, pause to recall that a central Democratic charge against appellate court nominee Brett Kavanaugh is he leaked to the press as a member of Ken Starr’s Office of Independent Counsel.

Not A Parody: The Wisdom of the “Sensible Center”



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This letter to the editor appears in today’s Washington Post:

It’s risky to predict what current events will become historical turning points, but I’m willing to take a chance on this one. Years from now, students and analysts of American political life will point to May 23, 2005, as the day “radical moderates” took a stand and began to recapture the sensible center of U.S. politics. The 14 Republican and Democratic senators who came together to avert the detonation of the “nuclear option” over judicial nominations are owed a much greater debt of gratitude than many people yet realize.

By uniting in defense of America’s historical commitment to consensus on issues of great national importance, they proved that moderates possess political muscle and are not afraid to use it judiciously and effectively. As a result, President Bush’s judicial nominees will get the up-or-down votes they deserve, and the Senate can turn its focus from procedural matters back to the important challenges facing our country.

Predictably, those whom I call “social fundamentalists” — the vocal minority who would purge from the Republican Party those who don’t meet their narrow ideological litmus tests on a handful of social issues — have gone to Defcon 2, just short of a nuclear launch, in their reactions.

Gary L. Bauer, president of American Values, called the compromise a “sellout”; the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, accused the seven Republicans of lacking “backbone” and “fortitude”; and James C. Dobson, head of Focus on the Family, spoke of his “disappointment, outrage and sense of abandonment.” Outraged talk radio hosts are vowing to help defeat the seven GOP senators in their next primaries.

History one day will reflect that the high-water mark of the “social conservative” movement in this country came two months ago with the Terri Schiavo case, when a vocal and organized minority persuaded Congress to intervene. Most Americans did not support that intrusion. History also will record that the tide began to turn just eight weeks later, as radical moderates flexed their political muscles to return the sensible center in American politics to its rightful place.

CHRISTINE TODD WHITMAN

Oldwick, N.J.

The writer is a former governor of New Jersey and a former administrator of the Environmental Protection Agency.

Note that Whitman falsely asserts that the anti-cloture reform agreement means that “President Bush’s judicial nominees will get the up-or-down votes they deserve.” In fact, the agreement promises cloture on only three judicial nominees and does not ensure that any of the President’s other judicial nominees, pending or future, will get an up-or-down vote. For this very reason, I suspect that this “historical turning point” will have the same lasting significance as the last momentous triumph of “radical moderates”–the defection of Senator What-was-his-name from the Republicans in 2001 that was to result in lasting Democrat control of the Senate.

If the agreement in fact said what Whitman misrepresents it to say, the “social fundamentalists” whom Whitman detests would be celebrating. Thus, the apparent difference between Whitman and conservatives is that (a) she doesn’t understand the agreement and they do, (b) she thinks the American people are too stupid to notice her misrepresentation, or (c) she likes to pretend that defeats are victories–or, of course, some combination of the above. Hardly the makings of a powerful “sensible center.”

A Temporary Deal?



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USN&WR’s Terrence Samuel thinks so, based on this article from TAP.

Gone in 4



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Southern Appeal says Rehnquist steps down in four. Hot fun in the summer time (she says in a voice of dread).

Re: Interesting Cornyn Questions



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Andy, I’ll bite. Any of the grounds you mention–all squarely based in judicial philosophy–should be sufficient for voting against a nominee to the Supreme Court, or any other court. Jurists who would make up the Constitution as they go shouldn’t be given a pass just because they haven’t cheated on their taxes. Judicial philosophy is always a legitimate subject of debate, and a legitimate ground for senators’ votes, positive or negative.

The tougher question you ask is, can judicial philosophy ever justify a filibuster of a nominee? I wouldn’t want to answer yea or nay on that until another question is answered first–namely, what do we mean by “filibuster”?

Is it a “filibuster” any time one or more senators refuse to join a unanimous consent agreement (the customary means of controlling the terms and duration of debate in the Senate) that will, in their opinion, bring a nomination to a floor vote after insufficient debate? Such delaying tactics may be legitimately used if the alternative is that the majority leadership ramrods a nomination through the process, while a delay might provide some persuasive opportunity to the minority to change some minds in the hasty majority. If that’s a filibuster, I’m all for it under the right circumstances.

Or do we reserve the name “filibuster” nowadays for any occasion when 41 to 49 senators simply act to obstruct a floor vote permanently, with no intent to persuade anyone of anything, no matter how much time passes or how much talk occurs? That is the abuse of which Democrats have been guilty these last few years (and which I said here a week ago was the new principle of minority power implicitly enshrined in The Deal). If that’s a filibuster, I’m against it in all circumstances–certainly in cases of judicial or executive nominations, anyway, and maybe even in legislation too.

When a filibuster begins or is in progress, it may be hard to tell which of these is occurring, though with the passage of time it becomes pretty plain. The difference of principle is that the first encourages deliberation and facilitates the wise exercise of majority rule, while the second stifles deliberation and frustrates any exercise of majority rule. Clearly the Senate Democrats crossed the line from the first to the second when they made it clear that there were no circumstances under which they would tolerate a floor vote on certain judicial nominations.

This was the abuse that brought Republicans to the brink of stating that the rules required only a simple majority of the Senate to attain cloture on a judicial nomination. Would such a threshold make it impossible to engage in the first, less objectionable form of filibuster above? Probably not, since it would still remain possible to tie up the Senate for a decent interval just by objecting to a unanimous consent agreement to bring on a final vote. Cloture would still take time to achieve, would still usually result in ample debate afterward as it does now, and would not be achieved hastily in a Senate culture that still respects minority views and the individual senator’s right to be heard at length. (I never bought the “sky is falling” view of how the Byrd option would radically undermine that Senate culture.)

However, if senators in either party are to have a meaningful opportunity to change their colleagues’ minds about judicial nominees, another tradition must go–namely, the ridiculous practice of mincing around the questions any sensible person would ask the nominees during Judiciary Committee hearings. If you want to know what a nominee thinks of abortion, or the influence of international law, or anything of a substantive character, ask away–and expect real answers. We should tolerate nothing less than total candor on the subject of broad constitutional opinions and principles of reasoning, especially in hearings on Supreme Court nominees. Hiding behind “judicial independence,” or pretending that answering any real questions would invite improper speculation on cases that might come before the Court, just won’t do–not in an age when it cannot be assumed that nominees understand the difference between interpretation and policymaking. (An age that has lasted more than a century already, but that’s another story.)

Unpopular Answers?



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I might surprise you, Andy, with some of my answers. First, I don’t think that simple disagreement on constitutional doctrine is a good reason to vote against a nominee to the Supreme Court. The Constitution provides for presidential nomination of judges and justices in the same clause that provides for nominations of ambassadors and other officials, and I believe substantial deference is due to all such nominations, provided there are not questions of character or fitness that would make one unsuited for the job. This means that if a Democratic president nominates highly qualified liberals, the Senate should confirm them. So, in my mind, the Senate was right to confirm Justices Breyer and Ginsburg, even though I believe both are profoundly mistaken in their approach to constitutional interpretation and many other legal questions. Does this mean anyone is fair game? I’m not sure. But I am skeptical that a president would nominate someone to the Supreme Court that is so far afield. President Bush is not likely to nominate my friends Richard Epstein or Randy Barnett, and I doubt a Democratic president would seriously consider appointing a Cass Sunstein or Mark Tushnet. (Of course, if all Senators had my view about the inappropriateness of imposing ideological litmus tests on judges, maybe such nominations would be more likely . . . ).

As for the filibuster, I believe it should never be used to block confirmation of a judicial nominee, period. It is one thing to use the filibuster for its traditional purpose of extending debate–perhaps under the theory that a longer debate will cause some Senators to turn against a truly controversial nominee–but I think the use of the filibuster for judicial nominees is wrong, and contrary to the constitutional design, even if I don’t

Interesting Cornyn Questions



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So Sen. Cornyn says: “[W]ith 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.” I happen to agree with him on that. But judging from my mail and some previous exchanges on the Corner, I suspect a number of my colleagues don’t.

So let’s say, just for argument’s sake, that it’s 2009, there’s an opening on SCOTUS, and a Democratic POTUS nominates a liberal who has stellar academic and professional credentials, no personal problems that would warrant opposition, and who believes: Roe is good constitutional law, the right to privacy is expansive enough to impose gay marriage judicially, the death penalty is unconstitutional, foreign law should be a guide to interpreting the U.S. constitution, etc.

Three questions arise: (1) Although I suspect there is consensus that this would be an adequate basis to justify voting against confirmation, do people disagree with that? (2) Are these facts enough to justify a filibuster? (3) If your answer to the second question is “yes,” would your answer be the same if the Democrats had not filibustered nominees for the past four years?

All Options Remain Open



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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



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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



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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?

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