Bench Memos

NRO’s home for judicial news and analysis.

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.

Re: Wine Gone to Their Heads?


Brother Franck makes an excellent point, and one that — as he can explain with more depth than I can — is important in understanding the current divide about what kind of judiciary we ought to have.

The same thing that bothers Matt about the coverage of the vino case struck me in particular in the coverage of the Gitmo detainee cases (especially Hamdi) and all of the sentencing cases that culminated with Booker and Fanfan. In Gitmo, two originalists, Scalia and Thomas, were — so far as I could tell — faithful to their originalist philosophy and yet came out in diametrically opposite places (Scalia emphasizing fidelity to the habeas corpus suspension clause; Thomas the executive’s national security powers). In the sentencing cases, we’ve found liberals parting ways (Ginsberg, for example, siding with Scalia and Thomas’s emphasis on the grand jury and trial rights of defendants; Breyer going with Rehnquist, O’Connor and Kennedy in defense of sentencing schemes that shift power from juries to courts).

The point here is (at least) two-fold. First, the partisan labels of judges are often not very useful — when it gets down to the brass tacks of cases. Many cases are complex, they don’t present as straight-up cultural or free-market issues, but frequently as a complex mix of substantive and procedural questions. Pigeon-holing these folks as “conservative” or “liberal” is often not a useful barometer for how they will come out in a given case.

Second, and more importantly, it is no slight to judges to say they should content themselves with their actual job, which is interpreting the law as it exists rather than taking a walk on the wild side of policy imposition and judicial legislating. Their actual job is more than difficult enough to do.

And So It Begins?


While the New York Times sputters about Priscilla Owen and Janice Rogers Brown being “singularly unqualified” and fulminates about Senator’s Frist’s coming “attempt to scrap the opposition’s right have a say,” the Washington Post provides a pretty fair and balanced look at how events may develop this week in the Senate. The Post’s writers, Mike Allen and Jeff Birnbaum, refer to an article (PDF file) in the Harvard Journal of Law and Public Policy that lays out a “virtual script for what could happen next.”

Oh the Horror!


An e-mail list I’m on brings word that Harvard Law School’s Laurence Tribe has sent out an “open letter” to those who have eagerly awaited the second volume of the third edition of his doorstop of a treatise, American Constitutional Law. He remarks, in evidently wistful and frustrated tones: “I have come to the sobering realization that no treatise, in my sense of the term, can be true to this moment in our constitutional history–to its conflicts, innovations, and complexities.”

For this he should call himself Laurence Tripe. Some of us who toil in this field have gotten along just fine for years without so much as owning a copy of Tribe’s magnum opus, which evidenced all the self-importance of the sentence just quoted (but at much greater length), without the compensation of any usable wisdom on the subject of the Constitution.

Readers should recall the recent revelation, by Ramesh Ponnuru in NRODT, that Tribe is something of a fabulist about . . . well, about himself. So perhaps Tribe’s assumption that hearts will be broken all over ConLawLand by the news of his abandoned treatise project is understandable. As for the real reason he is giving up on it? Well, we know some things also from that exposé a few months ago by Joseph Bottum in The Weekly Standard (sorry, no free link for nonsubscribers), revealing the extent to which Tribe plagiarized, in another of his books, the work of the incomparable gentleman and scholar Henry J. Abraham of the University of Virginia politics department. (A matter that Harvard just recently swept under the rug.) Maybe Tribe has given up on his treatise because he could no longer find research assistants willing to plunder the works of political scientists for him.

Fein Reading


Conservative lawyer and columnist Bruce Fein is out with a collection of his recent articles on the judicial confirmation and filibuster debates.

Wine Gone to Their Heads?


This morning’s Wall Street Journal (subscription only) praises yesterday’s Supreme Court ruling that struck down state laws discriminating against out-of-state wine makers and favoring in-state vintners’ direct sales to consumers. But I can’t quite join the party the Journal’s editors throw when they include sentences like this:

“Notably, the Court’s conservatives were split, with Antonin Scalia siding with the free-market majority and William Rehnquist and Clarence Thomas in the states-rights minority.”

Maybe it’s just my pet peeve, but this is lazy journalistic talk of the sort that I don’t like when I see it in the New York Times or Washington Post, so I have to take the Journal to task for it as well. What irks me is the facile identification of the contending sides on the court with ideological positions. Viewed through the Journal’s lenses, the Court is populated with “liberals” and “conservatives,” and its rulings may be characterized in the same way. What interests them in the sentence quoted above is that the case presents us with two kinds of conservatism: devotion to the free market on one side, to states’ rights on the other. Yesterday, in the Journal’s jurisprudential world, one kind of conservatism had more votes than the other, and the rest of the editorial praises the ruling on strictly results-oriented grounds.

The problem with this way of looking at the ruling is not that it fails to account for why the Court’s equally divided “liberals” voted as they did–though the editorial does fail in that way. The real problem is that it fails to take the arguments of the justices seriously on constitutional terms rather than ideological ones. Yesterday’s ruling was either correct or incorrect as a constitutional matter, but you will learn from the Journal only that the editors like its results, which is not the same thing as praising its correctness. (This is not just a journalistic problem–I find myself among a dwindling number of academic constitutional scholars who take seriously the proposition that there is a real Constitution apart from one’s ideological commitments.)

To put it plainly: either the “conservative” Scalia was right–constitutionally right–to join the “moderate” Kennedy and the “liberal” Souter, Ginsburg, and Breyer, or he was wrong–constitutionally wrong. And the “conservative” Thomas was either right–constitutionally right–to write in dissent for the “conservative” Rehnquist, the “moderate” O’Connor, and the “liberal” Stevens, or he was wrong–constitutionally wrong.

Can’t we first talk about a case that way–in the Constitution’s own terms–rather than leaping immediately to ideological labels as though they were always explanatory of something? The reader may notice that I have said nothing about my own view of whether the case (Granholm v. Heald) was correctly or incorrectly decided. Here I will only say that my constitutional opinion and my political preference are at odds with each other. If that’s so for me, could it also be true for some of the justices?

Putting Judicial Nominees in Perspective


Time for a bit of perspective. As Senate Democrats attack and distort the records of President Bush’s judicial nominees, it is instructive to examine the record of judicial nominees that Senate Democrats regarded as stellar. Let’s begin with Rosemary Barkett, who was nominated by President Clinton to the Eleventh Circuit Court of Appeals in 1993 and was confirmed in 1994.
Senator Hatch’s statement on the floor of the Senate summarized the overwhelming case against the Barkett nomination. Simply put, Barkett’s record was demonstrably awful across the board. Yet this is the nominee whom Sen. Kennedy described as an “outstanding jurist” and whom all the Senate Democrats, except for Sen. Byrd, voted to confirm.

Here are some highlights from Sen. Hatch’s statement. (For ease of reading, I’ve made minor edits in brackets and have added the headings and bullet marks below.) If you read nothing else, read about the Dougan case under the Death Penalty heading.

Equal Protection and Substantive Due Process
· [I]n her dissent in University of Miami versus Echarte, Chief Justice Barkett voted to strike down statutory caps on noneconomic damages in medical malpractice cases. In addition to a variety of State law grounds, her dissent also relied upon the Federal equal protection clause. Without citing any Federal precedent, she asserted: “I fail to see how singling out the most seriously injured medical malpractice victims for less than full recovery bears any rational relationship to the Legislature’s stated goal of alleviating the financial crisis in the medical liability insurance industry.”

In fact, the rational relationship between the means and the goal is self-evident and was clearly spelled out by the legislature. One might well disagree with caps on noneconomic damages as a policy matter. But, Chief Justice Barkett’s purported application of rational-basis review is a stark overreach and a flagrant misuse of the Federal equal protection clause. At her hearing, she acknowledged that she should not have relied on that clause.

· In another case, Shriner’s Hospital versus Zrillic, the nominee again relied on the rational basis standard under the Federal equal protection clause–as well as on a variety of State law grounds–in striking down a statute. In her opinion, she took the remarkable position that `underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test.’ This distortion of rational basis review into something akin to strict scrutiny clearly flies in the face of equal protection principles set forth in nearly 50 years of U.S. Supreme Court precedent.

· Justice Barkett’s misreliance on the Federal equal protection clause in these two cases is all the more striking to me in light of her partial dissent in Foster versus State. There, in seeking to rely on a theory of statistical racial discrimination in a challenge to the death penalty, she expressly acknowledged that the Federal equal protection clause was unavailable to her in light of a Supreme Court decision, McCleskey versus Kemp, squarely rejecting her view under the U.S. Constitution. Accordingly, in her Foster opinion she only relied on the Florida equal protection clause. Yet, she did not recognize the error of relying on the Federal Constitution when she wrote her opinions in Echarte and Zrillic. Her failure to appreciate in these two opinions that Supreme Court precedent foreclosed her reliance on the U.S. Constitution deeply troubles me.

· I also find Chief Justice Barkett’s reliance on Federal substantive due process very troubling. In State versus Saiez, she wrote an opinion holding that a State law criminalizing the possession of embossing machines capable of counterfeiting credit cards `violated substantive due process under the Fourteenth Amendment to the United States Constitution.’ Briefly, let me just say here, this expansive, substantive use of the due process clause is insupportable under Supreme Court precedent. The nominee testified that she was really relying on State due process grounds and her inclusion of the Federal due process clause was `careless’.


· [I]n Stall versus State, Chief Justice Barkett joined a dissent striking down a State obscenity statute on State law grounds. She also wrote separately in an opinion that, again, is sweeping and overbroad. There are several problems with this dissent.

First, her statement that, `A basic legal problem with the criminalization of obscenity is that it cannot be defined’ is flatly contradicted by the U.S. Supreme Court’s landmark opinion in Miller versus California (413 U.S. 15 (1973)), which Chief Justice Barkett does not even acknowledge, much less discuss.

Second, she sweepingly claims that an obscenity law such as the one in Florida violates `every principle of notice and due process in our society’–not, I might add, a statement limited to state law principles, and, again, contradicted by the Miller decision.

Third, Chief Justice Barkett’s opinion mischaracterizes the Florida law in the case: That law does not turn on the `subjective’ view of a handful of law enforcement people and jurors or judges, as she incorrectly suggests. The Florida law incorporates the standard set forth by the U.S. Supreme Court in Miller. The law bans materials that, judged by contemporary community standards, appeal to the prurient interest, that depict or describe, in a patently offensive way, specifically defined sexual conduct, and that lack serious literary, artistic, political, or scientific value. Thus, the role of jurors or judges under this law would not be to make their own `subjective definition’ of what is obscene, but rather to discern and apply existing community standards.

Criminal Law

· With respect to criminal law issues aside from the death penalty, I believe that the nominee has too often erroneously come down on the side of lawbreakers and against police officers and law enforcement. She has exhibited an unduly restrictive view of the Fourth Amendment that would hamstring the police, especially with regard to controlling drugs.

For example, in Bostick [v. State], a case involving cocaine trafficking, Justice Barkett adopted an across-the-board, per se ban on passenger searches on intercity buses even though Supreme Court precedent clearly called for an analysis of a search’s legality based on all of the particular circumstances of the search. The U.S. Supreme Court reversed her.

The U.S. Supreme Court also reversed her in the Riley case, where her misapplication of precedent would have led to dismissal of charges against criminals growing marijuana. In yet another drug case, the Court criticized her overbroad reading of precedent.

In her dissent in a case called Cross, Justice Barkett refused to credit the testimony of police officers that they had seen cocaine packaged in the same peculiar way on hundreds of occasions in their combined 20 years of law enforcement. In so doing, she ignored Florida precedent cited by the majority that provided that the observation of an experienced policeman of circumstances associated with drugs could provide probable cause for an arrest.

In another dissent, she ignored settled principles enunciated in U.S. Supreme Court precedent in finding that someone who was growing marijuana in his backyard had his fourth amendment rights violated when police, acting on a tip, looked over a 6-foot fence, spotted the marijuana plants and then obtained a search warrant. Rather than inquiring whether the defendant had an expectation of privacy that was objectively reasonable, Chief Justice Barkett simply displayed her personal opposition toward what she regarded as overly intrusive law enforcement.

· Justice Barkett has also written opinions striking down narrowly drawn laws that ban loitering for the purpose of prostitution and drug dealing. These opinions are badly flawed and misapply precedent. Moreover, they seriously disable communities from preventing harmful crime.

Death Penalty

· If a nominee exhibits a clear tendency to strain for unconvincing escapes from the imposition of the death penalty in cases where that penalty is appropriate, then that raises concerns in my mind about the nominee’s fidelity to the law, no matter how many times the nominee may have upheld the death penalty in other cases. From my review of her record, I have concluded that Justice Barkett clearly exhibits such a tendency. [O]ne of Justice Barkett’s dissenting opinions [(in Foster v. State)] would render the death penalty virtually unenforceable, unless imposed on the basis of racial quotas. Overall, I believe that Justice Barkett, in reviewing death sentences, views aggravating circumstances too narrowly; construes mitigating circumstances too broadly; creates unjustified categorical exclusions from death penalty eligibility; subjects the death penalty to racial statistical analysis that would paralyze its implementation, as I have just discussed; and creates procedural anomalies.

· Dougan versus State is a 1992 Florida Supreme Court case. Dougan was the leader of a group that called itself the Black Liberation Army and that, according to the trial judge, had as its `apparent sole purpose * * * to indiscriminately kill white people and thus start a revolution and a race war.’ One evening in 1974, he and four other members of his group, armed with a pistol and a knife, went in search of victims. They picked up a white hitchhiker, Steven Orlando, drove him to an isolated trash dump, stabbed him repeatedly, and threw him to the ground. As Orlando writhed in pain and begged for his life, Dougan put his foot on Orlando’s head and shot him twice–once in the chest and once in the ear–killing him instantly. Subsequent to the murder, Dougan made several tape recordings bragging about the murder, and mailed them to the victim’s mother as well as to the media. The following excerpt from one of the tapes aptly illustrates the content: “He was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

The Florida Supreme Court upheld the death penalty for Dougan. Justice Barkett and another Justice joined a remarkable and very disturbing dissent by Justice McDonald in which she voted to reduce the death penalty to life imprisonment, with eligibility for parole in 25 years[:] “This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.

“To some extent, [Dougan's] emotions were parallel to that of a spouse disenchanted with marriage, full of discord and disharmony which, because of frustration or rejection, culminate in homicide. We seldom uphold a death penalty involving husbands and wives or lovers, yet the emotion of that hate-love circumstance are somewhat akin to those which existed in this case.

“Such a sentence reduction should aid in an understanding and at least a partial reconciliation of the wounds arising from discordant racial relations that have permeated our society. To a large extent, it was this disease of racial bias and discrimination that infect an otherwise honorable person and contributed to the perpetration of the most horrible of crimes. An approval of the death penalty would exacerbate rather than heal those wounds still affecting a large segment of our society.”

This Place


certainly has the calm-before-the-storm feel today.

Judges and Democracy


Over at “Mirror of Justice,” I have a post in response to Philip Kennicott’s essay in today’s Washington Post, “Judge Not.” He asks whether (what the author sees as) the outbreak of hostility to the persons and work of judges in popular discourse–particularly among religious conservatives–should worry Catholics, academics, and others who–like judges–inhabit spheres that are “protected” from the “leveling power of untrammeled democracy.” In response, I suggested (among other things) that “[t]he complaint about judges is (or, at least, should be) not that they are judges, or that they are not elected, or that their rulings go against popular opinion; it should be that some are handing down excessively ambitious and legally incorrect rulings in contexts and with respect to issues to which their authority does not properly extend. To think that not-democratically-accountable power is worrisome in some contexts (for example, the debate over whether or not a community should embrace a sweeping abortion license) is not (necessarily) to endorse “democracy” all other contexts (for example, the debate over the divinity of Christ).”

Reid Calls off Negotiations.


Looks like its go time.

Reid Notes


According to Reuters, Harry Reid needs help … I mean, more votes.

“With time running out for a possible compromise, U.S. Senate Democratic leader Harry Reid appealed to Republican colleagues on Monday to break ranks in the battle over President Bush’s judicial nominees.

“Reid said if a handful of Republicans side with Democrats, they could preserve Senate rules that help check the powers of the White House by permitting procedural roadblocks, known as filibusters, against candidates for the federal bench.

“‘I’m confident and hopeful that there will be six Republican senators who will be profiles in courage,” said Reid of Nevada in a Senate speech. “I believe there must be at least six out there.’”

Democrats said they were a couple of votes short in this struggle that could shift the balance of power between Congress and the White House

Kmiec v. Tribe on Judicial Filibusters


Harvard’s Professor Lawrence Tribe recently posted on line his reasons against ending the filibuster as it has been applied to judicial nominees. Below is Pepperdine Professor Doug Kmiec’s counter-argument in favor of ending judicial filibusters. (Professor Tribe in regular font; Professor Kmiec in italics.)

The Nuclear vs. The Constitutional Option –

The constitutional instruction to the Senate is to give “advice and consent,” not to confuse and equivocate.

Point – Counterpoint

There’s is a good reason the Republicans have used the phrase “Nuclear Option” to describe the technique they threaten to deploy in order to change the rules under which the Senate performs its constitutional role of “advise and consent” with respect to presidential nominations to the federal bench. Nuclear weapons, we all know, are uniquely threatening. The reason isn’t simply that they devastate everything within a defined radius from ground zero. Other weapons have been devised that can do that. What is distinctive about nuclear weapons is that they leave behind a radioactive legacy that poisons generations yet unborn. Thus they cast a permanent shadow over the future. In two important and distinct respects, what the Majority Leader threatens to do is not merely nuclear but thermonuclear in its implications.

First, the substantive area in which the nuclear device is to be detonated is particularly rich in radioactive materials whose half-life is measured not in years but in decades. Each federal judge, and ultimately each Supreme Court Justice, who is confirmed by the new technique will serve for life. Such a judge, even when wielding only a single vote, is empowered to alter the legal landscape we must all share not just during the current Bush presidency but through a likely succession of presidents of both parties and of many different philosophical bents. This President and Senate were put in power by a narrowly divided national electorate not because it prefers judges in the mold of Justices Scalia and Thomas, the president’s unabashed role models for the job, but principally because of 9/11 and a reluctance to change leaders in the midst of the “war on terrorism.”

This assumes something very much not in evidence – that there is a singular published and accepted reason for an electoral outcome. The president campaigned in direct reference to, among other matters, the war, reforming social programs, as well as the appointment of men and women of appropriate judicial demeanor to the bench.

How absurd it is in a constitutional democracy for that national mood suddenly to be transformed, by an unyielding president and a rigidly ideological Senate majority, into a mandate to project into the distant future, and over the opposition of more than enough Senators to have precluded confirmation under the rules that prevailed until now, a firm determination to roll back reproductive freedom, weaken the separation of church and state, disengage from the rest of the world on issues like global warming and genocide, and take other steps so radical that we may well bequeath our children and grandchildren a nation profoundly different from the one we take for granted.

This is simply a partisan preference for some policy outcomes over others. In some respects, as a matter of politics, I may share Professor Tribe’s preferences, though in others I would not. Our preferences as voters and residents of Massachusetts and California, respectively, matter, but they do not determine the meaning of the law or the Constitution. Separating preference from law does illustrate President Bush’s point, however – judges should be appointed who will follow the law as enacted by the people, not as desired by the judges, or Professor Tribe and myself.

Second, unlike the standard procedure in which a small nuclear explosion provides the heat that generates the thermonuclear fusion of a hydrogen bomb, here it is a hydrogen bomb that will have to be detonated first, triggering the nuclear explosion of a radically altered judicial branch. For a change in the currently governing Rules of the Senate is a necessary prerequisite of this transformation in the composition of the judiciary – a transformation that will begin with a handful of circuit court judges but that is of course designed to be reenacted each time there is a vacancy on the Supreme Court. But the currently governing Senate Rules, including those that regulate the conduct and ending of a filibuster by a cloture vote, include a vitally important “meta-rule” providing that the rules themselves may be altered only by a specified supermajority vote.

Yes, the Senate has the power to set its own rules, including the rule on how to change the rules. The Senate has been setting, and re-setting, its rules from the beginning. What has been forgotten, or is being conveniently overlooked, is that every Senate should have at least one opportunity to approve the continuation of carry-over rules. Without this singular opportunity, the Senate is no longer a fully representative body – representing the people who put them in office — but merely the dead hand of the past.

Full Senate consideration is exactly what the framers anticipated. The Senate’s very role in the confirmation process was justified by Hamilton in Federalist Nos. 76 and 77 on the supposition that it would be exercised “by the whole body, by an entire branch of the legislature.” It is only the regrettable, latter-day onset of Democrat filibusters that have defeated nominees for whom a majority of the Senate has expressed support.

That the juxtaposition of majority approval with defeat is deeply problematic for a democracy explains why it is unprecedented to require 60 members (the number needed to end a filibuster) to confirm judges. A judicial filibuster was attempted successfully only once in our history, when LBJ tried to elevate Abe Fortas to be Chief Justice and his nomination went seriously awry over personal financial questions. But Fortas never had the support of a majority of the Senate, and he quickly withdrew. There was some filibuster talk over a handful of Clinton nominees (Breyer, Barkett, Sarokin, Paez and Berson), but wisely, the full Senate voted on each and each went on to serve.

Obstructing judicial nominees with majority support is no small matter. Doing so not only thwarts the President, it also exacerbates the increasingly heavy workload of the independent judicial branch – which, in turn, affects anyone whose life, liberty or property is at issue before a federal tribunal.

The Constitution allows the Senate to set its own rules. Yet, this rule-making power is not unlimited. No one should contemplate the Senate ever adopting a rule categorically excluding women or African-Americans or Catholics from serving on the federal bench. The Bill of Rights would rightly trump such bias. And while there is no similar trump denying a 60 vote requirement to cut off debate on judicial nominations, this super-majority vote requirement is nevertheless constitutionally deficient for one simple reason: this Senate – the 109th – has never adopted it.

The 60-vote cloture rule is a carryover from a previous Senate and merely imposed on the present body. Every two years, the Senate’s composition changes as one-third of its membership stands for election. An ever enlarging group of Senators, led by Senator John Cornyn (R_TX), has rightly asked why they, as more recently elected members, have never had a say over Senate process.

According to the present Democrat leadership, the new guys are just out of luck. You see, they say, another rule requires 67 votes to change the 60 vote rule. And where did the 67 vote rule come from? Yep, it, too, comes from a previous Senate. And so it goes. The people of the several States elect new Senators, but if Senator Reid is to be believed, the new folks are stuck with old rules effectively denying their representational voice.

This cannot be, and is not, the law. An unbroken chain of Supreme Court rulings anchored in English common law as venerable as Sir William Blackstone provides that “every succeeding Legislature possesses the same jurisdiction and power. . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less.”

That the Senate Democrats have disregarded this ancient precept and are operating outside the Constitution has prompted Senator Frist to contemplate asserting the prerogative of a majority of the existing Senate membership to change the carryover rules to allow a similar majority to exercise the power of advice and consent. Derisively, this has been dubbed by the Democrats as “the nuclear option,” but in truth, it is the constitutional one.

And don’t just take my word for it. Consider the following:

“[T]he members of the Senate who met in 1789 and approved the first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . .Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.”


“By what logic can the Senate of 1917 or 1949 or 1959 bind the Senate of [today]. . . .The immediate issue is whether a simple majority of the Senate is entitled to change Senate rules. . . .[I]t is clear that this question should be settled by a majority vote.”

Or simply:

“[Senate rules] could be changed by majority vote.”

The authorities: Senator Robert Byrd (D-WVA), the dean of Senate procedure and author of a magisterial history of the Senate on the Senate floor in 1979; Senator Edward M. Kennedy (D-MA) on the floor in 1975; and Senator Charles Schumer (D-NY) in colloquy with me before the Senate Judiciary Committee in 2003.

That rule stands in the way of deploying the nuclear option for the simple reason that its proponents are far from having the supermajority required by the meta-rule. Their solution? Equally simple: Knock the meta-rule aside either by ignoring it or by “redefining” its meaning by the same narrow majority that wants to take the action that the meta-rule says it can’t take absent a stronger majority — here, confirming all of the Bush nominees to the federal bench by demanding an up-or-down vote. Cutting through the arcane language and the cumbersome procedural maneuvers involved in this revolutionary step, its vice is transparent. We teach our kids when they’re little that rules are made to be followed; that unjust or unwise rules can be challenged and ultimately changed; that the rules for challenging or changing them are especially important; and that those rules, at least while we’re playing the same game, can’t be broken but must be obeyed. What’s true even of a child’s game is doubly true in adult political life. Ripping up the rules for changing the rules is unacceptable if one believes in a rule-governed democracy. For a mere majority simply to plow ahead and have its way even when the rules in place haven’t been changed in accord with their own provision for change is to reduce rules to mere suggestions. And this means, in the particular case of judges, that any time the same political party is in control of the two political branches, even the thinnest congressional majority can see to it that the third branch is dedicated for decades to precisely the ideology that the two political branches at that moment represent.

Again, this is more of a complaint directed at the consequence of losing the last election. To the extent that the argument is meant to suggest that every newly composed Senate lacks the authority to set its own rules for proceeding, it is not supported by history or text.

One needn’t be a fan of the filibuster as a device for making the Senate proceed in slow motion and occasionally freeze in its tracks in order to recognize the enormity of the explosion that threshold step entails before one confirms even a single judge. It is precisely because the Majority Leader, Senator Frist, must likewise see how massive an explosion is involved that he and others offer the reassurance that their nuclear device will be exploded “only” for federal judicial appointments.

Senator Frist has chosen merely to address the unprecedented use of the filibuster against judicial nominees who have majority support in the Senate. The broader merits or demerits of the filibuster may be open to question beyond this – after all, many believe it was disgracefully deployed to deny civil rights for many years – but that is a matter for the Senate to decide as the occasion warrants.

It’s a strange “only,” given the lifetime character of the power being conferred on these judges and the far-reaching consequences of its exercise, and it’s a hollow “only” because there’s clearly no way to make good on a promise that this bomb will be exploded in no other setting and that the Senate will not transform itself into a legislative chamber that, like the House of Representatives, adopts a different rule for debating and passing each action it is about to consider. For the Constitution’s Advice and Consent Clause (Article II, Section 2, Clause 2) speaks in the same breath of the Senate’s role in confirming “Judges of the Supreme Court” and “all other Officers of the United States” covered by the Clause. And the provision empowering each chamber to “determine the Rules of its Proceedings” (Article I, Section 5, Clause 2) does not treat differently the power to promulgate or alter rules depending on the endpoint of the proceedings governed by those rules — whether that endpoint is the confirmation or rejection of a nomination, the ratification or defeat of a treaty, the passage or defeat of a bill, the override of a presidential veto, or the promulgation of a constitutional amendment for consideration by the states. Although the Constitution itself sometimes specifies that a 2/3 majority is needed for one or another step, it leaves to each chamber of Congress the power to decide how to proceed, both when a 2/3 majority is ultimately needed (as with the ratification of treaties and the override of presidential vetoes) and when a mere majority will in the end suffice (as with confirming judges or other officers). And if the Senate may break the very rules it has made to regulate how it will proceed in any of these settings, then it may break the rules for all of them.

That the Constitution specifically calls for a super-majority in several specific instances, but not others, illustrates that there is nothing radical – nuclear or thermo-nuclear – about proceeding by majority determination elsewhere.

For all practical purposes, the pact that connects the current Senate with the Senate that sat in the First Congress — and the pact that most significantly differentiates the Senate as a continuing body with staggered replacements and with fixed modes of proceeding, from the House as a new body every two years and with rules of proceeding fashioned ad hoc for every measure — will have been broken once the power has been asserted to define the Senate’s rules anew whenever a majority is sufficiently determined to have its way and is willing to override its own rules to do so.

The filibuster emerged well after the founding, and quite by accident, when the standard means for calling the question were rather unthinkingly changed; the filibuster is no part of the intrinsic constitutional design.

Having played the game in violation of its own rules “just this once,” the Senate will have crossed an invisible but crucial line, making it difficult if not impossible to resist breaking the rules again whenever a majority of the Senators wish to do so, as a majority — and someday a Democratic majority — most assuredly will. The step proposed is one by which the Senate would have crossed the Rubicon and lost its virginity, and it is not the kind of loss that can be reversed or forgotten.

Whatever ultimate political price those Republican Senators who take that fateful step may pay, and whatever price might be exacted by a frustrated and confused electorate from those (mostly Democratic) Senators who retaliate by using the many formal and informal devices available for slowing the work of the Senate on all other business, all of us will undoubtedly have been made to pay a heavy price indeed. We will all have lost the great virtues of having an upper chamber in our national legislature that not only takes its “advice and consent” role seriously, but also believes in proceeding according to rules established in advance rather than making up and changing the rules as it goes along. It is because I so greatly lament that loss, and not because I fervently love the filibuster — a device that I would be the first to concede has been deployed at least as often for ill as well as for good — that I shudder at the thought of the thermonuclear step that is being proposed.

The Senate should take its advice and consent role seriously; that is why the filibuster should not be used to deny the full chamber the opportunity to speak its mind upon these important nominations.

Professor Tribe and I agree wholeheartedly that the integrity and independence of the judiciary is vital to our constitutional success. Our constitutional assessments do differ over where and when it is appropriate for the courts to set aside the democratic choices of the people. This is a significant question; it is one that is recurring; it is one open to legitimate debate in the Senate – so have the debate in general, or each and every time a nominee is presented, but after a reasonable and responsible period, the debate should be concluded and a vote taken on individual nominees. An offer of public service by any man or woman deserves this courtesy. The constitutional instruction to the Senate is to give “advice and consent,” not to confuse and equivocate.


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