Bench Memos

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Reid Just Promised in His Press Conference


to filibuster on Myers.

At Reid Presser Now


“Michigan judges are going to be approved–except for Saad, of course.”


“Nominees should only be filibustered under extraordinary circumstances.”


Besides being annoyed every judge isn’t getting a vote, what is extradordinary circumstances? Do we know what that means? Isn’t the blocking of “extremists” Brown/Owens/Pryor “extraordinary circumstances” in the minds of Harry Reid, etc.?

“Nominees should only be filibustered under extraordinary circumstances.”


Besides being annoyed every judge isn’t getting a vote, what is extradordinary circumstances? Do we know what that means? Isn’t the blocking of “extremists” Brown/Owens/Pryor “extraordinary circumstances” in the minds of Harry Reid, etc.?




We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.


Winners & Losers


“The Senate won and the country won.” (I think that was McCain…I wasn’t looking at the screen.) Oh please.

Reax, based only on Press Conference


Damn, a deal. The nonsense that this would hurt the Senate is silly–the Senate is hurt by the nonsense the Dems have pulled. And some kind of record has to show that–the NR history of the world, if nothing else.

But, that said, the Dems have invested so much in making Janice Rogers Brown, Priscilla Owen & Bill Pryor “extremists” that you gotta imagine people in People for the American Way offices are swearing right now.



according to the agreement, will only happen in “extraordinary circumstances.”

Agreeing (this and the following posts are based on the presser)


to vote for cloture on Rogers Brown, Owen, Pryor…

Totally Overly Dramatic


intro from John McCain….about the damaging impact the rule change would have had.

Republicans Who Dealed


McCain, DeWine, Snowe, Warner, Graham, Collins (update: chafee who is not present)

A Compromise Is Happening


(Accord to FNC)

Wassup with Warner


Hearing rumors of him going along with a deal. But people have to talk about something, so take that with a grain of salt. I’m told he’s speaking on the Senate floor at 8 tonight.

Ruining Lunch Plans the Country Over


Ok, not quite, but a cloture vote is now set for noon tomorrow

Is that Out of the Mainstream?


Looong Night Ahead









Kmiec v. Tribe II


Here is another round of debate between Professor Tribe and Professor Kmiec. Tribe is here: Professor Kmiec’s response below:

Professor Tribe and I continue to disagree, in friendship and with respect, over whether the filibuster is appropriately aimed at judicial nominations. He thinks it is; I do not.

Like the superb lawyer and scholar that he is, Professor Tribe marshals counter-evidence or interpretation that is important to consider as Senate process is evaluated, but let me suggest that what should not be lost is the substance over which we share common ground: those appointed to the federal judiciary should have integrity, a clear understanding of the separation of powers in a democratic republic, and the character and stamina to honor both. Judges ought not be in service of partisan agendas. Likewise, I would suggest, judges should be sufficiently restrained in demeanor not to indulge the practice of disallowing the policy choices of the people’s representatives that the Constitution does not prohibit.

On matters of process, I note that Professor Tribe does not specifically refute earlier argument that the filibuster applied to judicial nominations can result in harm to executive and judicial branch. With respect to the executive, the framers in convention were most concerned with allocating appointment authority in a manner that would promote public accountability. The president was given a slight edge (the power of unfettered nomination and the qualified power of ultimate appointment following advice and consent) since, as the Supreme Court would later observe: “the Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism” than the Senate.” The founders especially did not want the process to be dominated by, as Nathaniel Ghorum put it, “intrigue and cabal,” and that was thought more likely to affect the political bargaining of a legislative assembly than the discernment of a single person. Gouverneur Morris thus sums the Constitution’s allocation of appointment authority in favor of the president succinctly: “as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”

Now, of course, the question is how much security is too little and how much would be too great. Too little security from the Senate would not avoid the patronage aspects of appointment that might infect a presidential choice, and too much power lodged in the Senate would invite Senate domination of appointment which would represent the obfuscation or diffusion of responsibility that the framers wished to avoid. The framers especially wanted to avoid legislative bargaining that would ignore the intrinsic qualities of each candidate – or as Hamilton put – the sentiment that says “give us the man we wish for this office, and you shall have the one you wish for that.” Hamilton’s words resonate hauntingly since the idea of legislative compromise over the past weeks has been just that: “will give you Brown, but not Owen” or even worse, “you can have two or three of yours, but not seven or ten.”

My colleague in constitutional teaching Professor Tribe concedes that Federalist 77 extols the virtue of “submitting each nomination to the judgment of the entire branch of the legislature” – what Dr. Frist might call the wisdom of an “up or down vote” – but then curiously deduces from that a minority of the Senate can frustrate the “entire branch” from addressing the question at all. The one does not follow from the other. Far from supporting the notion of a minority generally determining the fate of appointments, Hamilton anticipated that Senate disapproval would be limited to where there was “special and strong reasons for refusal.” It is simply not conceivable that the framers would have applauded a filibuster device applied to judicial nominations that would invite the Senate to globally impede, rather than being a check, as Hamilton wrote, of “in general, a silent operation.”

So, then, how did the framers believe too little “security” would come from the Senate? Precisely by empowering less than the whole body to pass upon an appointment. Hamilton in Federalist 77 was especially outspoken against small councils of appointment, since they would not be “large enough to preclude a facility of combination. . . .[E]ach member will have his friends and connexions to provide for, the desire for mutual gratification will beget a scandalous bargaining of votes and bargaining for places.” Now, to be sure, the colonial councils of appointment being referenced are different than the larger minority operating under a filibuster, but here I hope Professor Tribe and I can find additional agreement.

I am critical of the filibuster for denying the entire Senate its constitutional role. In his earlier rebuttal, Professor Tribe challenged me to acknowledge “the myriad ways in which presidential nominations of judges . . . have .. .been suffocated in the cradle and never permitted to reach the floor at all.” To my colleague and friend, I say, “amen.” I have no brief in support of either Democrat filibusters that prevent the entire Senate from exercising its judgment or Republican committee practices that deny hearings or refuse to bring candidates to the floor that have the same effect. Both are constitutional defaults. The default comes in the sacrifice of accountability, or what is popularly termed, transparency. Filibusters denying full floor action and “committee cradle suffocations” of nominees both dangerously – as Hamilton warned – “shut up in private [and make] impenetrable to the public eye,…”

Professor Tribe argues, if the full body of the Senate should vote, why not require more than a majority for approval? This, however, goes to the other extreme and raises the issue of too much security. It also disregards a constitutional text that demonstrates a founding generation that knew how to provide for super-majority requirements when they were intended. Simply imposing the non-textual super-majority approval requirement of the filibuster, as discussed above, fundamentally changes the particular nature of the appointment allocation that is part of the Constitutional design. The framers considered and rejected in the convention a 2/3ds Senate concurrence for judicial appointments. It is fair to conclude that they believed such would undermine the assignment of responsibility – and hence, accountability – for appointment; a super-majority requirement would only aggravate the cabal-like, bargaining behavior thought unsuitable to weigh the merits of judicial candidates. What was needed to defeat a nomination? The lack of a majority. “If the Senate be divided, no appointment could be made.” Federalist 69. It was that simple. It was that important.

In all this, I have said little about the damage to the judicial branch posed by the judicial filibuster, but perhaps that is too obvious to need great elaboration. Certainly, long-standing vacancies in the face of expanding dockets mean a failure to address the life, liberty and property in litigation. Beyond this, other scholars have often reinforced the framers concern that when a minority of the Senate can delay or obstruct a fully capable nominee by reason of partisan or ideological disagreement, there is the greater likelihood of a “faction,” as Madison would have called it, eroding the independence of the judiciary.

A few final words. Professor Tribe more or less concedes that senior members of the Senate, such as Senator Byrd (D-W. Va) and Senator Schumer (D-NY), have acknowledged the power of a majority of the Senate to change its rules, including its cloture rules, by majority vote, though he implies that somehow, these members now believe that since this was not done “at the beginning of a new Congress,” the Senate is estopped to adopt new rules or otherwise interpret existing cloture rules as inapposite to judicial nominations. I know of no support for this timing limitation, though I admit orderliness and good administration would commend it. The constitutional text is clear: “Each House may determine the Rules of Proceedings, . . .” Article I, section 5. The power is plenary and available. And as Senator Byrd, as recently as today, confirmed, the power of a majority to close debate existed from the time of the first Senate. In Senator Byrd’s own words: “The rules adopted by the United States Senate in April 1789 included a motion for the previous question . . . the previous question allowed the Senate to terminate debate. ‘Mr. President, I move the previous question.’ Or in the House, ‘Mr. Speaker, I move the previous question.’ And if that gains a majority, no further debate-the previous question will be voted on.”

The time for closing debate on these long-pending judicial nominations is at hand. The Senate majority should do so, not to “automatically confirm” anyone, but to decide, consistent with the historic understanding of the Senate’s “advice and consent” duty, whether the men and women nominated merit appointment not because they are our fellow partisans with respect to one policy or another, but because they understand the nature of the judicial role and the rule of law.

Re: Brown and Originalism


Asking whether originalism can give you the result of Brown v. Board of Education is a bit of a trick question–and the trick is Brown itself. Brown launched constitutional law on a trajectory aimed at the conclusion that the Court is supreme expositor of the Constitution, that what the Court says and what the Constitution means are pretty much the same thing. Cooper v. Aaron, the 1958 decision smacking down Governor Faubus’s resistance to Brown, was central to this development. Asking about Brown and originalism now–that is, without questioning this type of judicial supremacy–is to ask whether the judiciary was authorized by the Fourteenth Amendment to strike down segregated public schools. The answer to this question is: hard to say; the historical evidence does not permita confident answer either way. But those who wrote and ratified the Fourteenth Amendment were not judicial supremacists of the Cooper variety. They surely meant for Congress–and not the Court–to be the main guarantor of the rights against hostile state action vouchsafed in section one of the Amendment. That is why the Amendment includes an express grant of enforcement authority to Congress (in section five), and leaves the judicial enforcement role to implication. The question which originalists should want to answer about Brown, then, is this: did the ratifiers of the Fourteenth Amendment understand that the enforcement power which they gave to Congress included the power to order states to desegregate public schools? The answer to this question is “yes”, as the debates in Congress over the civil-rights laws during Reconstruction (among other things) make abundantly clear.

Eartjhustice and Justice Owen


Glenn Sugameli of Earthjustice believes that I have misrepresented their critique of Justice Owen. He raises two points. First, he points out that Earthjustice has produced substantive analyses of some of Justice Owen’s opinions so it is unfair for me to suggest otherwise. Writes Glenn, “Earthjustice always provides and posts on our website a detailed analysis of the legal merits of any judicial nominee’s opinions that we criticize.” Second, he believes I mischaracterized the issues in the FM Properties case. Let me address each point.

First, Glenn is correct to note that Earthjustice has produced some lengthy analyses of Justice Owen’s record (see, e.g. here). Nonetheless, I believe it is fair to characterize Earthjustice’s analyses as result-oriented and misleading. The language used to promote the various reports and critiques — that a given justice is “anti-environment,” or favors “special interests over public health and ordinary citizens,” etc. — furthers the perception that judges should be evaluated based upon the identities of the winners and losers or the policy implications of specific cases, not the legal merits of the claims at issue. Glenn objects that some of these characterizations appear in material distributed by the Alliance for Justice, and not Earthjustice itself. True, but last I checked Earthjustice is a member of the Alliance for Justice. And while Earthjustice may “always” always provide detailed analyses of opinions they criticize, they’ve certainly gone after various nominees, such as Miguel Estrada and Henry Saad, without providing much analytical support.

Second, Glenn is correct to note that there is a distinction between delegations to administrative agencies (which are routinely upheld) and delegations to private entities. FM Properties concerned the latter, and environmental groups have typically been staunch defenders of the former. I didn’t note this distinction in my article due to space concerns (though I did in my prior Owen piece). In any event, I don’t think this undermines my point that the criticism of Justice Owen here has little to do with the doctrinal merits or any alleged “activism,” but rather with the end result. Environmentalist groups didn’t like the statute at issue in FM Properties, so they attack Justice Owen’s vote not to strike it down and use it as a basis to oppose her confirmation. Moreover, Earthjustice continues to distribute various fact sheets that distort the legal issues at stake. This one, for instance, suggests that Justice Owen would have “exempted big business from municipal clean-water safeguards,” when it was the statute passed by the legislature that created the exemption. As Justice Owen explained in her dissent, it is not unconstitutional for a state to exempt qualified private landowners from state-authorized local regulation. Whether such exemptions are wise policy is a decision left to the state legislature, not state courts.

Did Dems Go Too Far?


Robert Novak has some insights on the filibuster fight. Among other things, he suggests that if the Dems had filibustered fewer of Bush’s nominees, they would have a much easier time preventing the rule change to eliminate the judicial filibuster.


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