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Bench Memos

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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.’”

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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.

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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.

Consultation



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I have to disagree slightly with Ed Whelan on the issue of consultation with the Senate over nominees. As I understand it, pre-nomination consultation has been the norm for quite some time. For decades Presidents have consulted extensively with home state Senators on district court nominees, and even for circuit court nominees. Recall that President Bush decided not to nomination Chris Cox for the Ninth Circuit or Peter Keisler for the Fourth after consulting with home state Senators. Historically, lack of consultation has also been a reason to observe a home-state Senator’s negative blue slip. Clinton’s failure to consult with either Texas Senator was a reason his Fifth Circuit nominees had trouble. On the other hand, consultation has never been a veto. Thus, the Bush Administration sought extensive consultation with the Michigan Senators to find acceptable nominees, but proceeded with the “Michigan four” once it was clear that the Michigan Senators were holding out for Senator Levin’s relative. There is also a record of some consultation on Supreme Court nominees — as in some pre-nomination discussions so as to avoid the most inflammatory nominee (which is why, some claim, Bruce Babbitt was never nominated by President Clinton). Again, however, consultation is not any sort of “veto” on the President’s power to nominate judges. If this is how consultation is understood, I don’t think it’s such a big deal.

Letter or Spirit?



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I am not sure I can agree with the favorable interpretation of the filibuster compromise offered by Ed Whelan (here in chambers), or Ramesh Ponnuru and John Podhoretz (over in The Corner). Is the deal reached in Part II.B of the memorandum, in which the signatories of both parties pledge themselves to oppose any change or reinterpretation of the filibuster rules for the duration of this Congress, contingent on what the Republicans think of the Democrats’ claims about “extraordinary circumstances” in Part II.A?

The letter of the agreement suggests the answer is no. “[E]ach signatory must use his or her own discretion and judgment in determining whether such circumstances exist,” which suggests that these fourteen senators are individual free agents on whether to filibuster. But “we commit to oppose the rules changes” seems pretty unequivocal, and the introductory clause of the sentence doesn’t look conditional to me.

But John P. notes Sen. DeWine telling the Washington Post last night that he views the spirit of the deal as broken if the Democrats filibuster under circumstances that the Republicans cannot agree are extraordinary. In practice, any two of the signatory GOP senators can make good on that by bringing 50 votes to the floor to exercise “the Byrd option” (as Mitch McConnell calls it). We’ll see if they can muster the nerve they lost in recent days.

There is reason to be pessimistic about this in the fact that the Republicans acceded to the tacit proposition that the Myers and Saad nominations represented “extraordinary circumstances” already. Would Democrats care to explain publicly what the grounds were for blocking those two for the rest of this Congress?

There is another blow here, and it wounds more deeply. All the talk about preserving the traditions of the Senate in this agreement has it exactly backwards. The Democrats already broke with those traditions, and this deal endorses the new order of the ages, albeit under “extraordinary circumstances” that remain to be defined. In the long history of the filibuster since John C. Calhoun, while its practical use and intent has often been simply to obstruct, the only defense any senator has ever made of it in public is not that it is a weapon of mass obstruction, but that it is a delaying tactic, a defense against hasty majorities, an invitation to full and leisurely debate on the floor before decisions are made. Even in recent weeks this has been the refrain of the Democrats.

McCain’s Sanctimonious Seven (sorry, I left out Chafee in an earlier reference to the Six) have been snookered by that old vulture Robert Byrd into a new understanding of the filibuster–that it may be legitimately used, and legitimately defended, as a form of absolute obstructionism by a party that has the votes to prevent cloture. Not the principle of measured deliberation, but the principle of minority rule–an essentially anti-republican principle–has been enshrined in this agreement. Once again in his long career, it is Byrd who has changed the rules, and without seeming to have done so.

Why Pre-Nomination Consultation Is Worse Than Worthless



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Through the MOU, the seven Republican signatories have encouraged the President to consult with the Senate prior to submitting judicial nominations. Apart from the senators’ blatant misreadingof the relevant constitutional text, this is a very bad idea.

Senators are of course free to convey their views to the President at any time regarding prospective nominations, and perhaps the White House could respond to the MOU by a blanket invitation to senators to feel free to make their views known. But what some signatories of the MOU seem to contemplate is that the President will run by some undefined, but bipartisan, set of senators specific individuals that he is considering nominating. Such a process would be worse than worthless for two reasons:

First, the primary, if not exclusive, criterion of a good nominee in the eyes of the typical senator is that the nominee has raised a lot of money for the senator and is a crony of his (or is very close to a major fundraiser/crony). Senatorial influence on judicial nominations has been a major cause of mediocrity on the courts. Anything that aims to increase that influence is bad.

Second, any expectation that unspecified Democrats will be consulted merely creates a trap. If the President were to consult leading Democrats as to specific prospective nominees, Democrats would object to any decent nominee and then complain all the more bitterly if the President went ahead with the nomination. The chasm between a sound understanding of judging and the Democrats’ understanding is so vast that it is absurd to think that consultation might help bridge it. And even if the President were to consult some Democrats, there will always be other Democrats who can complain that they should have been consulted.

Testing “extraordinary circumstances”



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Adler, isn’t this the time to renominate Miguel Estrada? If, like Lindsay Graham says, it’s time to talk about if judges are qualified…

“Victory”



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That’s what John Podhoretz is sayng.

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