Bench Memos

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L. Graham From Last Night


I think we forgot to comment on this, which Hugh Hewitt does today: “Lindsey Graham’s short speech about ‘we are at war, and kids are dying,’ was a low, low point for him. ” That it was. It reminded me of Glenn Reynolds war line vis-a-vis the recently passed abortion-transport bill. Except Reynolds’s isn’t a United States senator.

L. Graham


Jon Adler just called–heard L. Graham on a radio show say that renominating Estrada would not constitute an “extraordinary circumstance.” Also, Graham (a.ka. MIT) still believes he still retains the right to invoke the nuclear option on one of the seven if Dems filibuster and its not an “extraordinary circumstance.”


No Deference


Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that “extraordinary circumstances” exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that “each signatory must use his or her own discretion and judgment in determining whether such circumstances exist” means that a Republican signatory is fully entitled to determine that “extraordinary circumstances” do not exist and that a Democrat signatory’s contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory’s determination of “extraordinary circumstances.”

More Complaints


A Religious Coalition for Reproductive Choice e-mail that just went out:

In the deal ending the Senate showdown over changing the filibuster rule, Democrats agreed to forego the filibuster on three of President Bush’s most extreme nominees–Priscilla Owen, Janice Rogers Brown, and William Pryor. The Religious Coalition for Reproductive Choice will continue to vigorously oppose all three as unsuitable for lifetime judicial appointments and urges you to tell your Senators to vote against their confirmation.

The compromise forged by a bipartisan group of 14 Senators does two things: it shelves the Republican threat to eliminate the filibuster for judicial nominees and leaves open the possibility that the filibuster can be used in “extraordinary” circumstances.

The question now: if the Bush Administration nominates an anti-choice ideologue for the U.S. Supreme Court, will protecting women’s rights and lives be considered “extraordinary?”

As people of faith, we must make it clear that judges who oppose reproductive rights and want to impose their own religious views are unacceptable.

CBC & The Deal


The Congressional Black Caucus opposes the deal.


Re: The Filibuster


I think Mark and I are talking past each other. I don’t think many conservatives maintain that the filibuster is useful as a tool to block judges. Rather, I think many conservatives believe that the filibuster is a useful legislative tool insofar as it allows conservatives to block the growth of government. The connection is that many conservatives rightly feared the proposed rule change for judicial nominations would lead to the complete elimination of the filibuster for all purposes the next time conservatives sought to block a liberal initiative. That is, getting rid of it where it is improper would lead to getting rid of it where it is proper and useful.

SCOTUS Love Affair with International Law, Cont’d



INDIANAPOLIS – Allowing U.S. courts to consider the views of other judges — including international jurists — while making a decision is a responsible practice, Supreme Court Justice John Paul Stevens said during a speech Monday.

The Filibuster


My comment related to filibustering judicial nominees, but I am not persuaded that even the legislative filibuster is a great tool for limiting government. I can think of numerous examples where the opposite would be true, such as a minority blocking tax cuts or the elimination of programs. So far, I’ve not seen the evidence but am certainly willing to consider it. And it seems to me it is for those who argue the benefit of the filibuster, and its value to conservatives, to explain why it’s such a benefit when it has never been triggered. If there have never been enough conservative senators in the Senate to use it against judicial nominees, or if there have never been enough conservative senators who think it should be used to block judicial nominees, then what’s the benefit? Which is my point.

The Filibuster as a Tool


Mark comments that “if the filibuster is such an important conservative tool, it’s remarkable that conservatives have never used it to block activist judicial nominees.” But this would only be “remarkable” if a) there were enough conservatives (as opposed to Republicans) in the Senate to filibuster a judicial nominee and b) if conservatives thought it was ever advisable to filibuster a judicial nominee. One could well believe, as I do, that the filibuster is an important tool for slowing or blocking unwise legislation, but it is nonetheless always inappropriate when used to block confirmation of judicial or executive branch nominees.

RE: Bainbridge


I don’t know if Professor Bainbridge is usually conservative as I admitted don’t know him and don’t regularly read his postings, but his posting on the filibuster deal isn’t all that different from what we’ve heard for months now. George Will made many similar arguments, which I addressed several weeks ago. I would add that if the filibuster is such an important conservative tool, it’s remarkable that conservatives have never used it to block activist judicial nominees.

Cloture vote


just happened–81-18

John Kerry vs. Brown & Meyer


He’s in the Boston Globe today. Bad production timing, I guess, since it’s “Meyer who?” this morning.

On Professor Bainbridge


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


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.

Dirty Deal?


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)


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”


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 …

Reax Round-Up


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

A Reader Says


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

What Am I Missing?


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.


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