Bench Memos

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That Makes Seven


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.



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?


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


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”


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…




That’s what John Podhoretz is sayng.



The Levin Read


Mark R., that is, is in The Corner. (Ramesh and others are talking in The Corner about the deal, too.)

About a Deal


Sean Rushton, for the good and tireless people at the Committee for Justice, keeps a stiff upper lip, but McCain & co. have already pulled the rug out from under his two points:

1. The leadership can press for up-or-down votes all it wants, but two nominees–Myers and Saad–will never get them, in this Congress anyway.
2. It’s futile to try to attach a principle to the agreed-upon language about “extraordinary circumstances,” since the people put in charge of what is “extraordinary” are the Democrats, who have already proven themselves perfectly unprincipled in this fight.

Now it only remains to be seen, as Jon Adler points out, to what extremes the Senate Democrats will go, and what interest in the Constitution the Republicans will show, when a Supreme Court nomination nears the floor.

“this is the submission of the minority to the will of the majority”


Kavanaugh & Haynes


Jon, here’s what the NYTimes is reporting:

Democratic officials said an unwritten aspect of the pact is that two nominees not named in the deal – Brett Kavanaugh and William J. Haynes – would not be confirmed and would be turned aside either at the committee level or on the floor.

Bashman on deal


How Appealing’s Howard Bashman has some thoughts on the deal here. He thinks it’s good news for Kavanaugh and Haynes, and immaterial on Saad (who he suggests would have lost his confirmation vote), but potentially bad for the Supreme Court.



I don’t even need my lawyer hat for this one, but I’ll put it on in a second. The politics are obvious enough. What the Democrats “give up” in this deal is the ability to filibuster except “under extraordinary circumstances.” What are “extraordinary circumstances”? Here was the Republicans’ big chance to hold the Democrats’ feet to the fire — to make them explain to the American people, concretely, exactly what their objections are to the Bush judges. To judges in general who share a judicial philosophy that where the Constitution is silent the American people should be trusted to govern themselves.

Did they do it? Of course not. “Extraordinary circumstances” means whatever an individual senator decides it means — much like the “living” Constitution means whatever a judge decides it means. It evolves with the circumstances — which is to say, it means nothing.

Oh, and the lawyer hat? An “understanding” — a contract — is, very simply, a meeting of the minds. Does anyone think there is a meeting of the minds here about what “extraordinary circumstances” are?

If Saad and Myers are not worthy nominees, there’s an easy remedy for that. They should be defeated on a vote of the full senate. A deal that stops them from getting a vote — that permits the senate’s constitutional obligation to be obstructed — is a betrayal.

And leaving aside that the advice clause does not — either literally or historically — mean the president should consult with the senate before making nominations, why should I care what the signatories believe the Constitution requires if they don’t think it requires them to perform constitutional “consent” by giving every nominee an up-or-down vote?



Liberal groups are telling journalists that Kavanaugh and Haynes will not be confirmed either.

Just to keep score: filibusters have already led to withdrawal of Estrada, Kuhl, and Pickering, plus Claude Allen who was withdrawn on threat of filibuster. Now, this illegitimately used tactic, supposedly renounced in general use going forward by this agreement, may kill Saad, Myers, Kavanaugh, and Haynes for a total of eight appellate scalps of 52 total nominees.

Let’s hope the rumors aren’t true.

Initial Reactions


1. The Memorandum of Understanding is silent as to one nomination that is already on the floor, that of Thomas B. Griffith to the D.C. Circuit. It also is silent as to all the other nominations that are already pending but have not yet reached the floor.

All the more reason to think that this MOU marks only a very temporary cooling off. The issue will resurface soon, and it is now crystal-clear which Republicans need, ahem, reinforcement.

2. 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. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory’s determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory’s determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute “extraordinary circumstances”.

3. The idea that the Constitution contemplates that the President will consult with the Senate before making nominations is belied by the text of Article II, section 2, clause 2, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges. As a matter of basic grammar, the phrase “by and with the Advice and Consent of the Senate” plainly modifies “shall appoint,” not “shall nominate.” And the idea that consulting Senate Democrats about prospective nominees would somehow have any value is ludicrous.

I Wonder


what this deal will mean for Brett Kavanaugh

Cornyn on the Deal


“After enduring years of harsh, unjustified attacks, Justice Priscilla Owen, Justice Janice Rogers Brown, and Judge William Pryor will finally get an up-or-down vote on the Senate floor. The signatories have also agreed not to filibuster judicial nominations in the future except under extraordinary circumstances. But Owen, Brown, and Pryor are highly qualified nominees who are firmly committed to the rule of law. They should never have been filibustered in the first place, and I expect the signatories to hold firm to their agreement not to filibuster similarly qualified nominees in the future. Otherwise, the spirit of the deal will be broken, and signatories will be and should feel free to take action to restore the 214-year Senate tradition of majority vote.

“The Senate judicial confirmation process has been at times emotional and politically divisive, and that is unfortunate. But all Americans of good faith should at least agree that we need a fair process for selecting judges – with full investigation, full questioning, full debate, and then an up-or-down vote. And all Americans should agree that, although nobody likes to lose, the rules should always be the same, regardless of whether the president is Republican or Democrat. President after President after President have seen their judicial nominees confirmed by majority vote, not supermajority vote. Senators should uphold and restore that 214-year tradition.

“I will continue to advocate for up-or-down votes on all of the President’s judicial nominees.”

Taken to the Cleaners


As I write, Bill Frist is on the floor of the Senate gamely putting lipstick on this pig of an agreement, when he should be denouncing it. Sometimes the Senate’s fabled “comity” is a truly disgusting sight.

Consider the text of the agreement, posted by Sister Lopez below. The Republicans gave up William Myers and Henry Saad–for the 109th Congress, anyway–on no grounds having to do with their fitness for the federal bench, and got nothing, absolutely nothing, in return. Indeed, the Sanctimonious Six have made a public promise to betray their party’s leadership for the duration of this Congress, should that leadership attempt again to enforce two centuries of tradition on respect for the Senate’s responsibilities to act on judicial nominations.

So the GOP fails once again to show that it has learned to act like a governing party, when the voters have made it responsible for so acting. The Democrats, by contrast, may pat themselves on the back for taking those Republican fools to the cleaners. Democrats remember so well how to govern that they can even do it from a position of weakness. By now this is a disappointment without being a surprise.

Daily Kos Read


An e-mail:

Over at the Daily Kos. the reaction is pretty mixed. Most are holding out hope that there is an unwritten agreement that some of the R’s on this deal will vote against CONFIRMATION for Owen, Brown, or Pryor.

Some are despondent that D’s gave up the right to fillibuster Supreme Court nominees except for ethical improprieties. I agree with the poster who says that the test of this deal is in how quickly Frist moves to a confirmation vote on Owens. If he does so tomorrow, I agree that the R’s did not make a deal to vote the magical three down. If not…I hope there is no if not. Frist and Reid are taking a pounding over there BTW.

The Drama’s Not Over, for Sure


Charlie Schumer on the floor of the Senate right now: “Armageddon has been avoided, and thank God for that.”


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