Bench Memos

NRO’s home for judicial news and analysis.

Dem Strategy Memos


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

Slippery Slopes


I’ve noticed an argument in a few places that what’s dangerous about the proposed rules change is not (so much) that it will allow judges to be confirmed by simple-majority vote as that it will allow further rules change by simple-majority vote. The implicit question is “What’s to stop a majority from getting rid of filibusters altogether?” Or: “from getting rid of majority-frustrating procedural devices altogether?”

The argument is made as though it’s a decisive objection. But even if it’s a good argument–if it establishes a reason worth considering not to make a rules change–it can’t be a decisive objection.

Let me take a step back. What restrains the majority from getting rid of all minority powers now? A lot of things: a majority’s fear of being in the minority in the future; the possibility that such an action will anger the public, or segments of the public important to members of the majority; widely accepted norms of acceptable political behavior. The day after a majority votes for the judicial-filibuster rules change, these restraints will not all disappear. It will be theoretically possible for a majority to abolish the filibuster altogether–as it is theoretically possible for it to do so now. But that does not mean that it will happen.

Now some of the restraints on the majority–such as those norms mentioned above–may well be weakened. It may be that the majority, having seen that it can get rid of judicial filibusters, will be more likely to change the rules in the future when a minority is causing it too much trouble. But the objection is, at least, weaker than it’s usually put. The objection is: “This move would increase the probability that the majority will abolish other minority powers.” And, presumably, a lot of things increase that probability–including, incidentally, the minority’s abuse of the powers it enjoys. For example: Talking about a rules change increases the probability that minority powers will be reduced. That can’t be a decisive objection to talking about it, can it?

Under ideal circumstances, I’d prefer the question of whether 51 senators can change the rules not be put to the test. I’d prefer it to remain a gray area. I’d like the minority to behave with restraint out of fear of provoking the majority into making a 51-vote rules change, and I’d like the majority to behave with restraint because it hasn’t fully grasped its theoretical power to change the rules when it feels like it. But the Democrats’ unprecedented use of the filibuster as a matter of routine has forced the issue. The possible consequences of allowing it to continue seem worse to me than the slightly increased probability that the filibuster will be abolished entirely.


Would Moveon Filibuster the Pope?


Liberal opposition to the President’s judicial nominees has nothing to do with religious faith, right? But , look what’s on MoveOn’s website(Hat tip NRSC)

An Abuse Compounded


The constitutional (or so-called “nuclear”) option is limited to debate over judicial nominees. Those who support it say that preventing an up or down vote on the president’s choices for the federal bench is an abuse of the filibuster. Fair enough. These supporters usually say (or imply) that when it comes to ordinary legislation — say, a highways bill or a civil rights measure — the filibuster is legitimate because a minority ought to be able to stymy legislation it very strongly opposes. Maybe; the question is how to protect minority interests, and talking until the wee hours is just one way. But it is still worth noting that the legislative filibuster is itself an abuse, an abuse of the privilege of unlimited debate. “Unlimited debate” and what we call the “filibuster” are not the same thing. Certainly, one can affirm the proposition that any member of a deliberative body who has something germane to say ought to be heard, no matter how long it takes, without endorsing the proposition that some members who cannot defeat a proposal on the merits may properly band together and talk, talk, talk precisely to defeat the proposal, either by causing its proponents to abandon it or by talking until the session ends. This is, of course, exactly what the Democrats want to do. None of them suggests that Republicans want to vote on, say, Janice Brown before everyone gets his or her say. No Democrat says that Senator Frist’s limit of one hundred hours debate is not enough to air the case against her.

Truth be told, there probably isn’t a thing that Democratic senators want to say about Janice Brown that they have not said already.

Re: The Washington Post Is Unfair and Unbalanced


Brother Whelan: Maybe I set the bar too low for “fair and balanced” at the Post. I cannot quarrel with your criticisms of certain Postie turns of phrase and characterizations. I just thought that the Post had done a public service by putting a pretty straightforward descriptive piece about Senate process on the front page. I still think that, despite a few slantings in the narrative, and I still recommend the story to interested readers. And it was I who compared it favorably to the NY Times–but to be fair there, at least the Times’s hysteria was in an editorial!


shutdown begins?


From Bill Frist’s office:

WASHINGTON — U.S. Senate Majority Leader Bill Frist’s Communication Director Bob Stevenson today made the following statement in response to the Senate Democrats’ refusal to grant consent, effectively shutting down the Senate’s committees and preventing them from meeting after 11:30 a.m..

“What a difference a day makes. Less than 24 hours after he complained the Senate is ignoring issues important to Americans, Democrat Leader Harry Reid today threatened progress on an energy bill, a jobs bill, disaster relief, and a closed intelligence meeting.

“To close down the committees over the judges issue is not only counterproductive, it could hurt Americans looking for work or suffering at the gas pumps.

“Despite any differences over the judges, the American people want their government to continue working on issues important to them. They want the Senate to do its job.

“Despite his suggestions to the contrary, Senator Reid’s actions speak volumes. It would appear the Democrats’ threat to shut down the Senate has already begun.”

democracy in the senate


Here’s NR’s latest editorial on the judge debate.

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.


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