Bench Memos

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Text reports this good news from the Omaha Herald:

Sen. Chuck Hagel, R-Neb., for weeks said he was undecided on whether to back a move by Frist, if it comes. Wednesday, he officially rejected signing on to a compromise.

“I believe that all of the president’s nominees deserve an up or down vote,” Hagel said, quoted by spokesman Mike Buttry. “The agreement that has been proposed calls for three of the president’s nominees not to get a vote. I could not agree to that. That is unfair and it’s not right.”

Of [Ben] Nelson’s effort, Hagel said that he wants a vote on all nominees, that the Senate is in a very difficult position and that “Sen. Nelson, like all of us, has to do what he has to do.”

Pryor and the Voting Rights Act


In typical understated fashion, on the Senate floor earlier Sen. Ted Kennedy (D, Mass.) raved that 11th Circuit nominee Bill Pryor wanted to “destroy” the Voting Rights Act. Here is the relevant section from Committee for Justice’s report on Pryor (footnotes not included):

Section 5 of the Voting Rights Act. Special interest groups also have attempted to misrepresent some of General Pryor’s statements about the Voting Rights Act of 1964. General Pryor has made it clear that “the Voting Rights Act is one of the greatest and most necessary laws in American history.” Because he believes so much in the Act, he has called for the amendment of Section 5 of the Act to ensure appropriate balance and state flexibility to ensure equal rights. He has criticized the “abuse of federal power” under Section 5, and has also taken to task federal courts that have “turned the Act on its head and wielded . . . power to deprive all voters of the right to select . . . public officers,” even though the Act “was passed to empower minority voters in the exercise of the franchise.” Indeed, as it is currently interpreted by courts, Section 5 has forced states to create or maintain safe minority seats which actually dilute minority voting strength elsewhere by packing minority voters into certain districts.

General Pryor’s concerns about Section 5 have been borne out in Georgia, where Section 5 has recently hampered the commonsense efforts of African-American state legislators to create a plan to maximize the number of voting districts that afford African-Americans a chance at electoral victory. A federal district court has found that Georgia’s plan violates Section 5, which has forced the state to appeal to the Supreme Court to have the plan approved. In Georgia’s brief to the Supreme Court, Thurbert Baker, the African-American Democratic Attorney General of Georgia, called Section 5 an “extraordinary transgression of the normal prerogatives of the states” and a “a grave intrusion into the authority of the states.” General Baker added, “Section 5 was initially enacted as a ‘temporary’ measure to last five years precisely because it was so intrusive.”

Section 5 has not only placed a burden on the states it covers, but also on the U.S. Justice Department, which has been forced to preclear a huge number of changes in voting practices that have nothing to do with minority voting rights. Section 5 requires covered states to preclear any decision to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” For example, if a covered state moved voting booths from
one side of a street to another, this action would have to be precleared by the Justice Department pursuant to Section 5. From 2000-2002, the Justice Department received requests to preclear 49,567 voting changes. In response to these requests, the Department issued only 28 letters interposing objections to proposed changes under Section 5.

Because of these problems, it should come as no surprise that some of the most revered Justices of the U.S. Supreme Court have criticized Section 5. The second Justice John Marshall Harlan wrote, “I find it especially difficult to believe that Congress would single out a handful of States as requiring stricter federal supervision concerning their treatment of a problem that may well be just as serious in parts of the North as it is in the South.” Justice Lewis Powell stated that it is “a serious intrusion, incompatible with the basic structure of our system, for federal authorities to compel a State to submit its [reapportionment] legislation for advance review” under Section 5, and observed that he disagrees “with the unprecedented requirement of advance review of state or local legislative acts by federal authorities, rendered the more noxious by its selective application to only a few States.”

On the occasion of Justice Powell’s death, President Clinton saluted him as being “one of our most thoughtful and conscientious justices” and observed that he reviewed cases “without an ideological agenda.”39 General Pryor should also be saluted for thoughtfully contributing to the public debate on how to best overcome America’s tragic legacy of racism and discrimination, just as these icons of American jurisprudence have.


Sen. Griffin’s Words


Earlier today, to justify current Democratic judicial filibusters, Sen. Stabenow (D, Mich.) cited former-Sen. Robert Griffin, the leader in 1968 of the bipartisan opposition to Abe Fortas. Her quotes were selective, however. Consider his words at the end of the Fortas debate:

“[T]hus far, there have been only four days of Senate debate on this very important, historic issue. … [A] filibuster, by any ordinary definition, is not now in progress.” And: “An examination of the Congressional Record … clearly reveals that the will of the majority was not frustrated. … On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated.”

The Senate Minority Keeps Getting Smaller


Has anyone noticed that the spotlight on judicial nominations has shifted from a minority of 40 U.S. senators determining who sits on the federal bench, to a minority of 12 U.S. senators deciding this in a back room? The Senate minority–or is it oligarchy?–is getting even smaller.

RE: Shutdown


This comes from the RNC.




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

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

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

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

Putting Judicial Nominees in Perspective, Part II


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

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

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

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

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

Dangling Nominees Under Clinton v. Bush 41


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

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

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

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

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

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

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

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

Re: Playing With Actual Nukes


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

Shutdown Averted


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

Playing with Actual Nukes


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

Heat in The Corner Kitchen


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

Non-Originalists Can’t Be Trusted


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

Re: Slippery Slopes


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

RE: Nebraska


Maggie Gallagher:

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

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

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


“Extreme” Becomes “Extraordinary”


Byron York has a deal-talk update here.

RE: Owen


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

It’s Been a Long Day


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

“95 Percent”


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

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



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


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