Bench Memos

NRO’s home for judicial news and analysis.

RE: Not to be Insensitive


I’d prefer to see more of their senators crying.

Schumer on Senate Rule Changes


The office of Sen. John Cornyn (R, Tex.) points out that though Sen. Schumer accused Senate Republicans of an activist reading of the Constitution in order to confirm activist judges, here’s what he said at a hearing on the issue of filibusters on judicial nominations:

Mr. KMIEC. . . . The real constitutional injury here . . . is the entrenchment of rules being imposed from one body onto the next.

Senator SCHUMER. Which could be changed by majority vote.

Mr. KMIEC. And should be changed by majority vote . . .

Senator SCHUMER. Right. That is why – I do not know why you say ‘imposed,’ because . . . the 51 Senators of the majority could propose changes in the rules.

[Judicial Nominations, Filibusters, and the Constitution: When a Majority is Denied Its Right to Consent, S. Hrg. 108-227, at 60 (2003).]


Not to be Insensitive


…but Kay Bailey Hutchison was just crying on the Senate floor, rounding up her personal portrait profile speech of Priscilla Owen. Can they just get down to business already and vote? It’s not like anyone whose a blank slate on these issues is listening to these speeches.

Extraordinary Circumstances


A critical problem with some of the compromises now being feverishly hashed over by the senators in both parties who are afraid of an up-or-down vote (on filibusters, that is) is that the “extraordinary circumstances” escape valve is sure to be abused. How do we know this? Well, truly “extraordinary circumstances” ought to lend themselves to a bipartisan vote against confirmation. If a nominee is truly extreme or out-of-the-mainstream, then even a 45-senator minority ought to be able to persuade 6 Republican moderates to vote no. Almost by definition, any controversial nominee who can ultimately garner the support of a Senate majority is sufficiently mainstream to deserve confirmation. Thus, in truly “extraordinary circumstances,” a filibuster shouldn’t be necessary; good, old-fashioned debate and persuasion should do the trick.

The only wrinkle here is party discipline. There are times when leadership in both parties leans hard on its senators and doesn’t allow them to vote their consciences. The Democrats are actually much more ruthless and effective about this: Their internal party rules give their leadership much more power to punish an apostate than do the Republicans’ rules. Nonetheless, there are “leadership votes” or “caucus issues” where both parties essentially force their members to get in line. Perhaps to best compromise of all is for both parties to agree to the exercise of the nuclear option (i.e., that 50 votes will be sufficient for confirmation) and simultaneously that neither party will insist on party discipline in votes on judicial confirmation. That way, the constitutional principle of advice-and-consent by a majority of the Senate will be respected, but the power of rational persuasion will be given free rein, and the minority need not fear raw power plays by the majority.

Pravda & Things


I just like the fact that Ed Whelan used the phrase “poppycock” in discussing today’s events.


Frist Begins


Senate Majority Leader’s opening statement on the need to end Democrat’s obstruction on judges:

WASHINGTON, D.C. – U.S. Senate Majority Leader Bill Frist, M.D. (R-TN) made the following statement today on the Senate floor: Mr. President, I rise today as the leader of the majority party of the Senate.
But I do not rise for party. I rise for principle.

I rise for the principle that judicial nominees with the support of a majority of senators deserve up-or-down votes on this floor.

Debate the nominee for five hours. Debate the nominee for 50 hours.

Vote for the nominee. Vote against the nominee.

Confirm the nominee. Reject the nominee.

But, in the end, vote.

Senators, colleagues, let’s do our duty and vote.

Judicial nominees deserve an up-or-down vote.

In this debate, we’ll discuss two of the President’s judicial nominees.

These outstanding nominees — Priscilla Owen and Janice Rogers Brown — both had the support of a majority of senators in the last Congress.

But they were denied up-or-down votes.

I expect we’ll also discuss such consequential topics as the meaning of the Constitution and Senate rules and procedures.

No doubt this will be a spirited debate – as it should be.

And I also hope it will be a decisive debate.

So let us begin.

In the last Congress, for the first time in history, a minority of senators obstructed the principle of a fair up-or-down vote on judicial nominees.

That was unprecedented. Never in 214 years of Senate history had a judicial nominee with majority support been denied an up-or-down vote.

Yet it happened – again … and again … and again … and again … and again … and again.

A minority of Senators denied up-or-down votes not just once to one nominee … but eighteen times to ten nominees.

These men and women – these nominees — are among the best legal minds in America.

And they all would be serving on the federal bench today — all they needed was a vote.

But they weren’t given the courtesy of an up-or-down the vote on this floor.

The minority denied them a vote and set a new precedent.

The minority in the last Congress rewrote the rules of advice and consent.

They unilaterally increased the threshold for confirmation from 50 votes — where it had been throughout history — to 60 votes.

Now some in the minority say they’ll harden the precedent and obstruct judicial nominees in this Congress.

And if they aren’t allowed to do so, if the Senate returns to the way it worked for 214 years, they will retaliate.

They will obstruct the Senate’s other business.

They will obstruct the people’s business.

They will hold back our agenda to move America forward.

An energy strategy to reduce our dependence on foreign oil … held back.

An end to medical lawsuit abuse to reduce the cost of health care … held back.

A simpler, fairer tax code to create jobs and encourage economic growth … held back.

A minority of senators will hold America back just because a majority of senators want to do of all things what the American people expect us to do — vote.

The minority should allow senators to fulfill our constitutional responsibility to give advice and consent and vote.

And they should allow America to move forward.

Mr. President, principles that endure for 214 years do not endure because they appeal to one party or another.

They endure because they serve a vital purpose.

In this case, the principle of an up-or-down vote ensures the President can fulfill his constitutional duty to appoint judges.

Let me read a passage in the Constitution:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States….

The Framers wrote in the Constitution that two thirds of senators must approve treaties.

But they specifically did not require the same number of votes to confirm judicial nominees.

After much debate and compromise, the Framers concluded that the President should have the power to appoint.

And the Senate should confirm or reject nominees by a simple majority vote.

For 214 years, Republican and Democratic minorities alike restrained themselves.

They abided by the Framers’ design and Senate tradition and gave nominees brought to the floor simple majority up-or-down votes.

Then came the last Congress.

With its obstruction, the minority set a new precedent — 60 votes before the Senate could proceed to an up-or-down vote on a judicial nominee.

The threshold for advice and consent in the Senate was 50 votes.

In the last Congress, the minority party radically increased that threshold to 60 votes.

That was wrong. We will restore Senate tradition.

This unprecedented threshold gave the minority a virtual veto and effective control over the judicial appointments of the President.

The minority destroyed 214 years of Senate tradition, defied the clear intent of the Constitution, and undermined the democratic will of the American people.

You can’t get much more radical than that.

This new precedent cannot be allowed to stand in this Congress.

We must restore the 214-year-old principle that every judicial nominee with majority support deserves an up-or-down vote.


First, the American people elect their Senators for a reason. It’s to represent them. And they expect us to do to our job.

The Senate is a deliberative body. We are a proudly deliberative body.

But we also have certain responsibilities – which include giving advice and consent on the President’s judicial nominees.

When a judicial nominee comes to this floor and has majority support, but is denied a simple up-or-down vote, Senators aren’t doing their job.

And the sad fact is: we didn’t do our job in the last Congress.

The minority’s judicial obstruction has saddled President Bush with the lowest confirmation rate for appeals court nominees of any modern president.

This is disgraceful.

We owe it to the people we serve and to the Senate as an institution to do our job.

We should vote up-or-down on judicial nominees.

Second, the judicial branch also has a job to do. And it needs judges to do it.

Right now, there are 46 vacancies on the federal bench. That includes seventeen vacancies on appeals courts.

But it’s not just the vacancies themselves.

Qualified nominees who can fill those seats can’t get up-or-down votes to be confirmed in the Senate.

Let me give you an example.

Four of the seventeen vacancies on federal appeals courts are in the region that serves my home state of Tennessee.

Those nominees have been waiting a combined thirteen years for an up-or-down vote on the Senate floor.

Thirteen years!

Either confirm the nominees or reject them.

But don’t leave them hanging.

Don’t leave our courts hanging.

Don’t leave our country hanging.

If the nominees are rejected, fine, that’s fair. At least rejection is a vote.

But give nominees the courtesy of a vote.

Third, judicial nominees deserve up-or-down votes because they deserve to be treated fairly.

Let me tell you about the nominees we’re about to consider — Priscilla Owen and Janice Rogers Brown.

Priscilla Owen has been a Texas Supreme Court justice for the last ten years.

She was reelected with 84% of the vote in 2000.

Her service has won praise from members of both parties.

Former Justice Raul Gonzalez, a Democrat, said:

I found her to be apolitical, extremely bright, diligent in her work, and of the highest integrity. I recommend her for confirmation without reservation.

Justice Owen has also been a leader for providing free legal services to the poor.

And she has worked to soften the impact of legal proceedings on children of divorcing parents.

On May 9, 2001, President Bush nominated Justice Owen to the fifth circuit court of appeals.

To this day, more than four years later, even though a majority of senators support her, she has been denied an up-or-down.

That’s just plain wrong. That’s unfair. Priscilla Owen deserves a vote.

Now let me tell you about Janice Rogers Brown.

She’s the daughter of an Alabama sharecropper.

She was educated in segregated schools and worked her way through college and law school.

She went on to serve in prominent positions in California state government.

Today Janice Rogers Brown is a justice on the California Supreme Court.

And she was retained as a justice by the people of California with 76% of the vote.

On July 25, 2003, President Bush nominated Justice Brown to the U.S. Court of Appeals.

To this day, nearly two years later, even though a majority of senators support her, she has been denied an up-or-down on this floor.

That’s wrong. That’s unfair. Janice Rogers Brown deserves a vote.

Janice Rogers Brown can get 76% of the vote in California, and Priscilla Owen can get 84% of the vote in Texas, but neither can get a vote to be confirmed in the Senate.

Why? The minority says they’re out of the mainstream.

Mr. President, are 76% of Californians and 84% of Texans out of the mainstream?

Denying Janice Rogers Brown and Priscilla Owen a vote is what’s out of the mainstream.

Justice Brown and Justice Owen deserve better.

They deserve to be treated fairly.

They deserve the courtesy of a vote.

The consequences of this debate are not lost on any member of this body.

Soon we — 100 United States Senators — will decide the question at hand.

Should we allow a minority of senators to deny votes on judicial nominees that have the support of a majority of senators?

Or should we restore the 214-year practice of voting up-or-down on all judicial nominees that come to this floor?

I have to believe the Senate will make the right choice.

We will choose the Constitution over obstruction.

We will choose principle over politics.

We will choose votes over vacillation.

And when we do, the Senate will be the better for it.

The Senate will be, as Daniel Webster once described it: “a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels.”

To realize this vision, we don’t need to look as far back as the Age of Webster, Clay and Calhoun.

All we must do is look at the recent past and take inspiration from the Era of Baker, Byrd and Dole.

For 70 percent of the 20th century, the same party controlled the White House and the Senate.

Yet no minority denied a judicial nominee with majority support an up-or-down vote on this floor.

Howard Baker’s Republican minority didn’t deny Democrat Jimmy Carter’s nominees.

Robert Byrd’s Democratic minority didn’t deny Republican Ronald Reagan’s nominees.

Bob Dole’s Republican minority didn’t deny Democrat Bill Clinton’s nominees.

These minorities showed restraint.

They respected the appointments process.

They practiced the fine, but fragile art of political civility.

Sure they disagreed with the majority at times.

But they nonetheless allowed up-or-down votes to occur.

This Senate must do what’s right.

We must do what’s fair.

We must do the job we were elected to do and took an oath to do.

We must give judicial nominees the up-or-down votes they deserve.

So let us debate.

Let senators be heard.

Let the Senate decide.

Let this body rise on principle and do its duty and vote.

Re: Unfair & Unbalanced


Ed, “Pravda on the Hudson” is very formal. My 33-month old calls it simply “Pravda.” The preposition may be too much — although he can say “Wall Street Journal” and “Paul Wolfowitz,” so I suppose …

The Washington Post Is Unfair and Unbalanced


Matt correctly observes that the Washington Post’s coverage of filibuster reform is “pretty fair and balanced” compared with the New York Times’ “sputtering.” But it’s setting the bar far too low to credit the Post for surpassing the standard of unfairness set by Pravda on the Hudson. I think the Post’s story today by Mike Allen and Jeffrey H. Birnbaum is a textbook case of media bias. The Post has basically adopted Democrat talking points. Consider:

1. The headline and the opening sentence use the inflammatory term “nuclear option”.
This term has no descriptive value. Something like “filibuster reform” would be a far more objective and informative term.

It’s unfortunately true, of course, that many on our side have adopted the “nuclear” lingo. Indeed, NRO’s home page today uses the phrase “Going nuclear” to call attention to this blog. That may excuse the Post’s usage. But it’s instructive to compare the Post’s far greater reluctance to use the term “partial-birth abortion,” even though that term was in the title of the bill passed by Congress, has considerable descriptive value, and was used daily by opponents of the legislation.

2. “If Frist and the GOP majority prevail, a long tradition of filibustering will be narrowed.”
Poppycock. As Charles Krauthammer explained in the Post last week, “One of the great traditions, customs, and unwritten rules of the Senate is that you do not filibuster judicial nominees.”

3. “Republicans believe they have figured out how to use the chamber’s rules” to effect filibuster reform.
Oh, those wily Republicans. It is not until 16 paragraphs latter that the reader learns that the Republicans would be merely following a path previously trodden by Democrats.

4. Priscilla Owen, President Bush’s nominee to the Fifth Circuit, is “an abortion opponent.”
What underlies this characterization? Evidently the mere fact that Justice Owen construed the judicial-bypass provisions of the Texas parental-notification statute, and the Texas Supreme Court’s role in reviewing trial court findings of fact, somewhat more narrowly than some of her colleagues.

Deal Sticking Points


Today’s WaPo story on deal negotiations suggests that several of the moderate Republicans are holding out. First, they are objecting that the “extraordinary circumstances” loophole gives the Dems too much leeway, especially considering that the deal would call for moderate Republicans to oppose any rule change for the rest of the 109th Congress. Second, they continue to wrestle with the Dem negotiators on which and how many judges would be sacrificed. According to the Post, the Republicans “argued that the Democrats had already successfully blocked, in Bush’s first term, three other appellate court nominees who have not been renominated, and that they now should not be able to block three more.” That the Republican moderates would hold out on these points is a promising sign that if there is a deal, it won’t be an unmitigated disaster.

Go Nuke




Many of those now citing Gonzales on Owen–incorrectly–voted against Gonzales for AG.

Bad Deal


As Shannen notes, promising not to filibuster save for “extraordinary circumstances” is not much of a promise. Given that PFAW and the Alliance for Justice have already announced their intentions to demand filibusters of mainstream conservative nominees to the Supreme Court, even to replace Chief Justice Rehnquist, the proposed assurance is no assurance. Any deal that does not preclude the use of a filibuster for the Chief’s replacement (assuming he retires this year) is nothing short of unilateral disarmament.


Text links to the draft text of the deal proposed by moderate senators of both parties.



The current AG also said during his hearings: “I served with Judge Owen on the Texas Supreme Court. And I think she did a splendid job, a superb job as a judge. I think she would make a superb job on the Fifth Circuit, and that’s why her name was recommended to the president.”



This distortion will go on and on. Harry Reid just used it on the Senate floor: That Gonzales called Owen an “extremist.” HE didn’t and he set the record straight. Let me take you to the Washington Post of all places for clairfication. The Post printed the transcript from Gonzales’s confirmation hearing, where he said: “My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.”

“Nowhere Else to Go”


Roger Pilon is worth reading today:

An excerpt I’d like to address: “In the grand constitutional design, federal courts exist mainly to secure liberty, because that’s what the Constitution does, especially since ratification of the Civil War Amendments crafted by the heavily Republican 39th Congress. Courts are supposed to keep Congress within its enumerated ends and to ensure that both federal and state governments respect our rights, whether enumerated in the Constitution or not. They’ve never done that consistently, of course, but as the independent, non-political branch, courts are charged with enforcing the Constitution’s restraints on power.”

While I consider myself somewhat of an economic libertarian, I don’t buy Roger’s assertion that the framers, or subsequent Congresses and state legislatures through the Civil War amendments, set up the courts “… mainly to secure liberty.” Their job is to interpret the Constitution. Judicial activists on the Left make essentially the same argument as Roger, usually dressing it up in phrases like “the living Constitution,” “pneumbras and emanations,” “doing justice,” and “protecting rights.” But it gets us to the same place, i.e., judicial supremacy. While Roger wants the courts to advance liberty, the Left wants the courts to advance social justice, which they confuse with liberty.

The Constitution is a governing document in which the framers sought to distribute power to ensure that no single branch, or the federal government as whole, would become too powerful. Hence, separation of powers and the 9th and 10th amendments. (The 9th and 10th amendments do not expand the authority of the federal courts. Both speak of rights and power belonging to the people. Likewise, the 14th amendment explicitly empowers Congress to enforce its provisions, not the courts.)

More to the point, there’s nothing in Article III endorsing the proposition that the courts’ main job is to secure liberty. The structure of the Constitution, including the notion of co-equal branches with authority to check each other, is intended to secure liberty in the context of a federal system. Indeed, Article III, rather than conferring ultimate jurisdictional authority on the judiciary, leaves it to Congress to determine much of the courts’ authority. This is a constitutional check granted to Congress over the judiciary. In any event, nowhere in the Constitution is their explicit authority for Roger’s proposition.

From a policy and ideological point of view, I reject Roger’s proposition as well. The judiciary has been no more or less effective at safeguarding liberty than the other branches. Roger himself is disappointed in much of the judiciary’s post-1937 jurisprudence. He writes, in part:

“With the floodgates opened, it soon became a majoritarian (or, just as often, special interest) free-for-all, with winners claiming the democratic “high ground”–as if that’s what the Constitution were about. Liberty and limited government gave way to majoritarian democracy.”

But the courts’ anti-liberty record didn’t begin with the New Deal. The most egregious decision was Dred Scott in 1857 which, among other things, overturned the Missouri Compromise banning slavery in the new territories. The elected branches led the war that ended slavery.

Moreover, as opposed to the elected branches–federal and state–when the courts make dire errors in judgment, that Roger concedes has occurred throughout the last 70 years, it is dramatically more difficult to redress them. Indeed, since Dwight Eisenhower’s presidency, conservatives have lamented judicial activism and have attempted to appoint, in most cases, judges who respect the limits of their power. But this effort has failed.

For all practical purposes, the judiciary is supreme today and there are no effective limits to its power. And yet Roger rightly complains about the dimunition of our liberty.

“Time to Retire the Filibuster”


The U.S. Senate likes to call itself the world’s greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him.

For years Senate filibusters — when they weren’t conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor — consisted mainly of negative feats of endurance. Senator Sam Ervin once spoke for 22 hours straight. Outrage over these tactics and their ability to bring Senate business to a halt led to the current so-called two-track system, whereby a senator can hold up one piece of legislation while other business goes on as usual.

The two-track system has been nearly as obstructive as the old rules. Under those rules, if the Senate could not muster the 60 votes necessary to end debate and bring a bill to a vote, someone had to be willing to continue the debate, in person, on the floor. That is no longer required. Even if the 60 votes are not achieved, debate stops and the Senate proceeds with other business. The measure is simply put on hold until the next cloture vote. In this way a bill can be stymied at any number of points along its legislative journey.

One unpleasant and unforeseen consequence has been to make the filibuster easy to invoke and painless to pursue. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.

Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now proposes to make such obstruction harder. Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.

Admirably, Mr. Harkin says he does not want to do that. He proposes to change the rules so that if a vote for cloture fails to attract the necessary 60 votes, the number of votes needed to close off debate would be reduced by three in each subsequent vote. By the time the measure came to a fourth vote — with votes occurring no more frequently than every second day — cloture could be invoked with only a simple majority. Under the Harkin plan, minority members who feel passionately about a given measure could still hold it up, but not indefinitely.

Another set of reforms, more incremental but also useful, is proposed by George Mitchell, who is retiring as the Democratic majority leader. He wants to eat away at some of the more annoying kinds of brakes that can be applied to a measure along its legislative journey.

One example is the procedure for sending a measure to a conference committee with the House. Under current rules, unless the Senate consents unanimously to send a measure to conference, three separate motions can be required to move it along. This gives one senator the power to hold up a measure almost indefinitely. Mr. Mitchell would like to reduce the number of motions to one.

He would also like to limit the debate on a motion to two hours and count the time consumed by quorum calls against the debate time of a senator, thus encouraging senators to save their time for debating the substance of a measure rather than in obstruction. All of his suggestions seem reasonable, but his reforms would leave the filibuster essentially intact.

The Harkin plan, along with some of Mr. Mitchell’s proposals, would go a long way toward making the Senate a more productive place to conduct the nation’s business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

You just read a New York Times editorial, c. January 1, 1995.

Moderates Attempted Dealmaking


American Spectator has this item on the rumored “deal” to stop the filibuster. The problem, as the article suggests, is that the Democrats want to be able to use the filibuster in “extraordinary circumstances,” which apparently means any day that the earth revolves around the sun. If you think about it, that is a pretty extraordinary thing, but it is a thin reed on which to build a deal.

Filibusters & Judicial Quality


Here is an op-ed by Steffen Johnson, a lawyer with the Office of Legal Counsel, called “How Filibusters Drain Quality.” Johnson writes:

As the moment of truth approaches for Senate Republicans deciding whether to go “nuclear” to end Democratic filibusters of federal judicial nominees, the debaters continue to overlook the most important reason filibusters should be laid to rest: They are a substantial threat to a genuinely distinguished and intellectually diverse judiciary.

Beyond the issue of who controls the presidency or the Senate, filibustering judges is plainly a bad idea. It enables the minority party to blackball any nominee with any record of distinction, since any nominee worth his or her salt will have offended one or another interest group in the course of prior government or academic service. This means the courts will be filled with undistinguished, inoffensive “moderates” rather than a diverse group of the most talented judges from both parties.

Read the whole thing.

Janice Rogers Brown


By the way: There’s been a debate happening in The Corner between Ramesh Ponnuru and Peter Kirsanow over Peter’s defense of Brown yesterday.


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