Bench Memos

NRO’s home for judicial news and analysis.

RE: Shutdown


This comes from the RNC.



A reader passes along these golden oldies from Sen. Kennedy and Sen. Boxer.

Here is a link to a Freeper list of Dem quotes on voting for Judicial nominees.

A couple of examples: Sen. Ted Kennedy (D-MA): “We owe it to Americans
across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.” (Congressional
Record, 2/3/98)

Sen. Barbara Boxer (D-CA) 5/14/97 : “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.”


Putting Judicial Nominees in Perspective, Part II


Time for a bit more perspective on judicial nominees (on top of this post on Rosemary Barkett).

On May 5, 1994, President Clinton nominated district judge H. Lee Sarokin to be a judge on the U.S. Court of Appeals for the Third Circuit. As Senator Hatch accurately stated at the time, Sarokin had earned a reputation as a stridently liberal judicial activist. Indeed, Sarokin described himself as a “flaming liberal” as a judge. The Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent.” The New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases.” A broad range of police and victim’s groups announced their opposition to his nomination.

Here’s a fuller memo on Sarokin’s record that Senator Hatch submitted on the Senate floor. If you read nothing else, be sure to read about Sarokin’s wildly lawless ruling (reversed by the Third Circuit) in Kreimer. There Sarokin ruled that the Morristown public library couldn’t enforce its written policies to expel a homeless man who regularly engaged in offensive and disruptive behavior and whose odor was so offensive that it prevented the library patrons from using certain areas of the library and prohibited library employees from performing their jobs. “[O]ne person’s hay-fever is another person’s ambrosia” was among Sarokin’s justifications for preventing a community from setting even minimal standards.

Senate Democrats regarded Sarokin as an ideal judge. Senator Leahy, for example, called him “a judge of proven competence, temperament, and fairness” and “an excellent choice.” A mere five months after his nomination, Judge Sarokin was confirmed over Republican opposition.

Of the eight current Democrat Senators on the Senate Judiciary Committee, six (Leahy, Kennedy, Biden, Kohl, Feinstein, and Feingold) served in the Senate at the time of the nominations of Barkett and Sarokin, and all six strongly supported their nominations. (Sen. Kennedy missed the vote on Sarokin.) It is, I think, obvious from their performance that the two new members, Schumer and Durbin, would have done so as well. These Senators simply do not deserve to be taken seriously as arbiters of the qualifications of judges. And their reckless attacks on President Bush’s outstanding nominees are doubly shameful in light of their support for nominees like Barkett and Sarokin.

Dangling Nominees Under Clinton v. Bush 41


My boss, Boyden Gray, White House counsel to the first President Bush, sent this note to reporters today:

On the Senate floor Wednesday, Sen. Durbin sought to justify current Democratic filibusters by claiming that Republicans had held open judicial vacancies during President Clinton’s tenure in order to put Republican judges in those seats later. First, the confirmation slowdown under Clinton occurred mainly during the last year of his second term, a tradition that goes back many years and has been employed by both parties. More to the point, the same strategy was employed–to greater effect–by Senate Democrats at the end of President Bush 41’s single term in office.

Of the nominees left dangling from Clinton’s two terms, most did not get through the Judiciary Committee due to a specific cause: late nomination, problems with home-state senators, incomplete paperwork, or they were impeachable, meaning they had behavioral issues in their pasts that rendered them unacceptable. In many of these latter cases, the Clinton White House privately agreed with the decision not to move forward.

Nonetheless, Clinton was able to have 377 of his nominees confirmed—five short of the all-time record. He lost one floor vote for a nominee to the district court. Clinton’s eight-year appellate confirmation rate was 74%, in addition to getting two liberals confirmed to the Supreme Court. Many of the Clinton nominees who were delayed for long periods of time and not confirmed had problems with their home-state senators. For example, Helene White, Kathleen McRae Lewis, Jorge Rangel, Enrique Moreno, James Beatty and James Wynn all lacked support from one or both of their home-state senators and did not successfully negotiate these issues.

When the Senate adjourned for the last time under President Clinton, there were 41 nominations dangling and 67 judicial vacancies. Overall, that is a good record.

By comparison, during President George H.W. Bush’s single term, Democrats were more aggressive with such committee procedures. After creating 85 new judgeships in 1990, the majority Democrats slowed down the confirmation process to keep many of them open. After the Clarence Thomas confirmation fight, Democrats temporarily stopped the confirmation process entirely. Though a deal was reached to restart the process, the Democrats were able to keep many outstanding nominees off the bench, including Terry Boyle for the 4th Circuit, Frederica Moreno for the 11th Circuit, Lillian Bevier for the 4th Circuit, and John Roberts for the D.C. Circuit.

In all, at the end of the first President Bush’s term, 54 nominees did not get confirmed and we were left with 97 judicial vacancies.

If Clinton’s two terms are added together, the number left dangling is around 60–a figure Democrats cite regularly–or an average of about 30 per term, compared to 54 for the single term of the first President Bush.

Re: Playing With Actual Nukes


K-Lo, we can only hope the GOP is paying attention. I disagree with the Democrats, but I have long admired their appreciation of how central the
courts are to their program. It has been much underappreciated on our
side. You say their all-out fight is “not going to go over” with the
American people, and I think that’s true. But I think they don’t have
to “win” in a democratic sense to win in a bottom line sense. If they
prevail in the filibuster fight, they keep originalists off the courts
and incrementally accomplish their agenda. That’s far more important to
them than, say, Iran’s nukes. They can lose some seats over this
struggle and still win big-time if they block a lot of judges. It’s
critical to understand how important this is to them, and to respect
that instead of continually being nonplussed by it.


Shutdown Averted


Latest from the Senate: The Dems are allowing the Iran hearing to happen. Must have been Bench Memo pressure!

Playing with Actual Nukes


Buzz from Senate leadership types is that Democrats are currently objecting to a Iranian-nukes hearing in the Senate Foreign Relations Committee, as part of their hardball-on-judges strategy. Shutting down the Senate folks, is not going to go over–you know, besides it just being wrong to do…and on a national-security issue, no less.

Heat in The Corner Kitchen


There’s a bit of action in regard to filibusters and NR’s editorial policy over in The Corner, you’ll want to check it out if you haven’t.

Non-Originalists Can’t Be Trusted


The proposition that non-originalists can’t be trusted applies in a number of realms. Among other things, non-originalists can’t be trusted to assess originalist arguments because their primary interest is to discredit originalism. As my essay on NRO today shows, Yale law professor Jack Balkin’s lengthy critique of my recent NRO essay on Brown v. Board of Education and originalism exhibits this characteristic flaw and fails even to present accurately the arguments he purports to refute.

Re: Slippery Slopes


Apropos Ramesh’s insights, it’s worth reminding people of Sean Rushton’s important article a few weeks ago. Back in 1995, Democrats, led by many of those now accusing Republicans of seeking radically to alter the character of the senate, actually proposed eliminating the filibuster entirely — not just in connection with judicial nomination.

RE: Nebraska


Maggie Gallagher:

There certainly is animus on display in these decisions, but it comes from judges toward the American people. The majority in the Massachusetts court declared, baldly, that only animus could explain the desire of the people of Massachusetts to protect marriage as the union of husband and wife. In California, a trial court judge actually found that passing a civil unions bill indicated the kind of animus on the part of Californians toward gay people that justified striking down that state’s marriage laws. And in Nebraska, a federal judge said that the state marriage amendment “goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus.” Most ludicrously, this federal judge defined Nebraska’s constitutional amendment as a “bill of attainder,” which means he called the amendment an attempt to legislatively punish citizens without trial.

I first testified on a federal marriage amendment before the Senate in fall of 2003. The man who sat on my right was Jon Bruning, the attorney general of the state of Nebraska. He testified that, based on some preliminary court rulings, he expected a federal judge would soon overrule Nebraska’s state marriage amendment.

Democratic senators in the room assumed a pose of powerful skepticism about the motives of those like us who supported a Marriage Protection Amendment. They pooh-poohed the idea there was any judicial threat to marriage. No court had then ruled in favor of gay marriage, they noted. Our fears of judicial re-invention were unwarranted, if not hysterical then basely political. And besides, they said, none of their constituents were talking about this issue, nobody really cared about it.


“Extreme” Becomes “Extraordinary”


Byron York has a deal-talk update here.

RE: Owen


And here’s Sen. Cornyn on Gonzales/”judicial activism” re: Owen.

It’s Been a Long Day


Here’s what Gonzales said at his confirmation hearing (here and here) about Owen, fyi.

“95 Percent”


I’m sure it is well known, but listening to Sen. Schumer (D, NY) drone on about President Bush getting “95 percent” of his judicial nominees confirmed requires a restatement of the truth.

The fight over President Bush’s judges has been confined to the important Circuit Courts of Appeal. Since the filibuster strategy’s inauguration in 2003, Senate Democrats have filibustered 10 of 34 appellate nominees, almost 1/3, and stopped another six in committee. In his first term President Bush had the lowest four year appellate confirmation rate of any modern president, 67 percent, according to AEI scholar John R. Lott Jr. He got 35 of 52 appellate judges confirmed.



…took down the B16 image Sean linked to earlier. Here it is:

Owen and Gonzales


In a parental-notification case in Texas in 2000, Alberto Gonzales, then a Texas Supreme Court justice, wrote that to construe the law’s provision for a judicial bypass narrowly would be “an unconscionable act of judicial activism.” Since Priscilla Owen was on the other side of the case, Democrats have used those words against her. Various conservatives–notably Orrin Hatch, Terry Eastland, and the folks at PowerLine and NRO (including me)–have disputed this account. So has Alberto Gonzales.

There are three theories about Gonzales’s words. 1) He was attacking Owen and the other dissenters. 2) He was attacking one or two of the dissenters but not Owen. 3) He wasn’t attacking anybody.

Eastland’s argument for 2) was that Gonzales was concerned about a narrow construction of the judicial-bypass provision, which was the major focus of Justice Hecht’s dissent but not of Justice Owen’s. Owen, he said, dissented mainly because of how the court had treated lower courts.

People for the American Way and Eric Boehlert of Salon argue in response for 1) because Gonzales refers to dissenting “opinions” at the start of the paragraph with the “unconscionable” line in it and because Owen did, indeed, try to construe the statute narrowly.

You could even make a case for 3)–the words of the passage don’t quite add up to an indictment of anybody without some additional interpretation of the context. Here’s the Gonzales paragraph: “The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent’s right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute’s legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.” (The paragraph continues, but that’s the end of the relevant section.)

You could interpret this passage a number of ways. Gonzales could, for example, be saying: Some justices want to read this bypass narrowly. But I’ve looked more closely at the legislative history than they have. For me to ignore what I know (but they apparently don’t) would be an act of unconscionable judicial activism.

Personally, I don’t buy 3). I buy 2). Gonzales refers specifically to Hecht’s dissent twice and refers specifically to Owen’s never. It’s Hecht who got to him, and who he was implicitly slamming.

I also don’t take Gonzales to be the last word in statutory interpretation or judicial decisionmaking–but for what it’s worth, I think the conservatives have the better of the argument here.

Gonzales’s decision can be found here.

Deal Rumor


Word on the street is that Sen. Salazar (D, Colo) has proposed a compromise whereby the Dems allow votes on all currently filibustered appellate nominees and agree to self-restraint except under extreme circumstances. (I agree with Adler: how do they define extreme? Chief Justice Scalia?) Regardless, I am not sure the Dems could keep their caucus together for a Supreme Court filibuster, and if they did it would probably cost them seats in 2006. In exchange, the GOP gives up the nuclear option in the 109th Congress and the filibuster goes back to being what it always has been: a mainly theoretical Sword of Damocles, as Stuart Taylor called it.

The Party of Pinocchio


In the last 24 hours, Sens. Richard Durbin (D, IL) Dianne Feinstein (D, CA) and Byron Dorgan (D, ND) have continued to spin the theory that 60 Clinton judicial nominees were “filibustered” by blue slips, holds, or other procedural devices, and that numerous other nominees in the 19th and 20th centuries were filibustered.

This is duplicitous. Two things are important when discussing filibusters – when and why one occurs. A filibuster happens when one or both of the means for limiting debate (unanimous consent or cloture) fail, not when they succeed. And temporary filibusters that do not abolish majority rule altogether can have a legitimate purpose (bargaining, delaying for more debate, etc.). Permanent filibusters intended to defeat a nominee who has majority Senate support are illegitimate.

Consider the words of moderate columnist Stuart Taylor:

“It is … misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as “filibusters” even genuine debates and short-term stalls that ended in cloture votes and confirmation.

“The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)

“And even the 1968 filibuster of then-Justice Fortas’s nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas’s request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote.”

Successful cloture votes are not filibusters. Generic delays or blockages are not filibusters. Blue slips and holds are not filibusters. For Durbin, Dorgan, and Feinstein to suggest otherwise is simply deceptive.

Dem Strategy Memos


Charlie Hurt in the Washington Times takes us back to the filibuster fight’s roots.


Sign up for free NRO e-mails today:

Subscribe to National Review