Google+

Bench Memos

NRO’s home for judicial news and analysis.

Looong Night Ahead



Text  



{16:48:24 NSP} (MR. BURNS) { NOT AN OFFICIAL TRANSCRIPT }

MR. BURNS: MR. PRESIDENT, I ASK UNANIMOUS CONSENT THAT THE
MAJORITY LEADER BE RECOGNIZED AT

5:30 P.M. TODAY, PROVIDED

FURTHER THAT FROM 6:00 TO 7:00 THIS EVENING BE UNDER THE
CONTROL OF THE MAJORITY LEADER

OR HIS DESIGNEE, THAT FROM 7:00

TO 8:00 P.M. BE UNDER THE DEMOCRATIC CONTROL WITH TIME
CONTINUING TO ROW ROWE TATE INTO

THE FASHION UNTIL 9:00 A.M.


Kmiec v. Tribe II



Text  



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

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

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

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

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

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

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

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

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

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

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

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

ADVERTISEMENT

Re: Brown and Originalism



Text  



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

Eartjhustice and Justice Owen



Text  



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

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

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

Did Dems Go Too Far?



Text  



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

ADVERTISEMENT

Abortion & the First Scotus Opening



Text  



If you weren’t already convinced the confirmation hearings would be largely about abortion, here’s more reason they will be.

Filibuster Reform and Presidential Politics



Text  



The Des Moines Register reports Iowa conservatives are warning Republicans that judicial filibuster reform will be an issue at the next presidential caucus. There is an effort now to get similar warnings from GOP leaders in other major primary states.

Is Anyone Out Listening?



Text  


A Postscript on Brown and Originalism



Text  



In my NRO essay on Brown v. Board of Education and originalism, I outlined originalist arguments by Michael McConnell and Robert Bork in support of the result in Brown. I also observed that the Left has no real interest in exploring the merits of these originalist arguments because its overriding interest is in using Brown’s supposed incompatibility with originalism to discredit originalism. Yale law professor Jack Balkin continues to provide ample evidence in support of my observation.

I will not drag the hapless reader through the back-and-forth of Balkin’s critique of my essay, my response to his critique, and his comments on my response. (His comments are appended to his critique as an “update”.) I will instead focus on the big picture.

My essay did not purport to present my own scholarship but instead sought to draw attention to two serious originalist arguments that others have made. The primary originalist argument that my essay presented is that the original understanding of the Fourteenth Amendment was that segregated schools were unconstitutional. That argument was made most forcefully ten years ago by Michael McConnell and is consistent with the 1880 Strauder decision and Justice Harlan’s famous dissent in the 1896 Plessy ruling.

As I pointed out in my response, Balkin’s critique provided an inaccurate and anemic summary of McConnell’s argument and presented a supposedly unanswerable objection that McConnell had in fact refuted ten years ago. In his update, Balkin offers not a word of explanation or defense for his mistreatment of McConnell’s argument. Instead, his core argument is his irrelevant charge that I do not adequately understand the history of the post-Civil War amendments.

I will readily concede that Balkin knows far more about the history of these amendments than I do. But despite his effort to pitch the contest as being between himself and me, the relevant question is whether he understands that history–and the proper treatment of that history in originalist methodology–better than McConnell. Perhaps he does. But the fact that he has yet to answer McConnell provides little reason for confidence in his judgment.

The second originalist argument that my essay presented is Robert Bork’s argument that by the time of Brown any assumption by the framers that segregated schools were compatible with the Fourteenth Amendment’s original meaning of establishing racial equality under the law was no longer tenable. Balkin’s critique contended that Bork’s argument “isn’t actually originalist,” and my response explained why Balkin was wrong. Again, all that Balkin’s update provides is a misdirected attack on my knowledge of the history of the post-Civil War amendments.

Balkin’s misstatements continue in his update. He asserts that I base my argument on the “plain language” of the Fourteenth Amendment and purports to quote me twice as to what that amendment “plainly” says. But the originalist arguments that I present are not “plain meaning” arguments, and the only time I use “plain” or “plainly” in either of the two essays is in presenting McConnell’s point that Balkin’s reliance on racism in public opinion at the time of ratification should also compel him to conclude “that the Fifteenth Amendment doesn’t mean what it plainly says.”

I have no doubt that Jack Balkin is very smart and learned. Given his intelligence and knowledge, his failure to address squarely the originalist analyses of McConnell and Bork lends additional support to my thesis that non-originalists on the Left are not really interested in exploring whether the result in Brown can be reconciled with the original meaning of the Fourteenth Amendment but instead prefer to use Brown as a weapon against originalism.

“Unequivocal Support”



Text  



Sean, here’s a new letter, too, from DOJ on the AG & Owen.

Gonzales & Owen



Text  



On Friday at the National Press Club, Alberto Gonzales again once again addressed whether he accused Priscilla Owen of “unconscionable judicial activism”:

MODERATOR: Opponents of Priscilla Owen have time and time again quoted a particular Texas case when you and she were both on the Supreme Court. And people in the White House have said that it’s been taken out of context, the quote that was used. I wanted to give you a change to explain both what you wrote in the context current debate.

GONZALES: There’s a lot of misinformation about this. It’s rather difficult to explain in a short sound byte. And, therefore, people choose to ignore the explanation–or choose to ignore the fact that I fully support Judge Owen. I would not have recommended her to the president if I didn’t fully support her.

She and I did serve together on the court for a period of two years. And the quote that is my quote comes from an opinion I wrote in connection with the parental notification case. The Texas legislature passed a parental notification was in connection with abortions involving minor daughters I believe in 1999 or 2000.

And the legislature didn’t make the parental notification right absolute. They provide an exception, that is that you could go to a court and get a judicial bypass if you could how three things. And one of the things that the Texas legislature said would be an exception to having provide notice to a parent, was if the minor could show a judge that she was mature and sufficiently well-informed–mature and sufficiently well-informed.

And so it fell upon the Texas Supreme Court to try to give meaning to those words. What did the Texas legislature intend when they said that as a matter of policy if a minor could show that she was mature and sufficiently well-informed she could receive a judicial bypass.

And so it was a case involved statutory construction. I looked at the case, looked at the way the statute was constructed and made a decision that the legislature intended that exception, that bypass to be a meaningful one, to be a real one. And to construct the statue in a way that didn’t respect that legislative decision, I felt, would be an act of judicial activism.

GONZALES: I was referring to my own interpretation of the statute. I was not referring to the writings or the positions of other judges on the court who wrote in dissent in that particular case. I have made this position quite clear, under oath, in connection with my confirmation hearings.

As an initial matter, I didn’t give this explanation when Judge Owen was first nominated because, quite frankly, I have a problem with judges describing the deliberative thought processes, quite frankly. And I just didn’t think it was appropriate. And therefore, as an initial matter I took the position: Look, judges disagree all the time on cases. The fact that I disagree with Judge Owen on this case or other cases takes away in no way from my own views that she is well-qualified and deserves to serve on the 5th Circuit.

That’s I hope a helpful explanation of the words that I used in that particular statute. Again, it was referring to the way that I interpreted legislative intent based upon the words used in the statute, based upon the framework of the statute, that judicial bypasses had to mean something and that for me to ignore my interpretation of the statute would be an act of judicial activism on my part.

Not Activist Enough



Text  



Jon Adler hits the nail on the head. A must-read to grasp what’s at stake in the Own confirmation battle, and the battle over confirmations in general.

Democrats Still Hiding From Vote on Mainstream Nominees



Text  



Here’s a short column I wrote for today’s Philadelphia Inquirer on how Justice Owen, Justice Brown, and the President’s other nominees are the ones who are really “mainstream.” The liberal Democrats are the ones who are outside the American mainstream, which is why they are hiding from a vote — not filibustering for more time.

Short Memories



Text  



TAPped’s Jeffery Dubner finds it absurd that Republicans complain about the blocking of Bush’s judicial nominees because Senate Republicans blocked and delayed some of Clinton’s. Yet neither Dubner nor his colleagues ever makes mention of the Democratic obstruction of Reagan and Bush I nominees. No, I’m not just talking about Bork and other defeated nominees. Rather, there are plenty of individuals who were nominated and stalled by the Democratic Senate, including John Roberts and Terrence Boyle, both of whom were first nominated by the first President Bush, and both of whom were refused votes in the Democratic Senate. It’s great that the Left now believes that “It is completely unfair to those who want to serve their country to have to wait months or even years without knowing if they will have a job or not.” It’s too bad that Senate majorities have not treated nominees of another party’s President that way for the past 20 years.

And This Tells Us What, Exactly?



Text  



Dozens of the nation’s newspapers probably carried a story I saw in my local rag yesterday morning, an Associated Press story about its own AP/Ipsos poll (PDF file) on people’s attitudes about the judiciary and judicial appointments. Here’s the lead in the story linked above, by Will Lester of AP: “About four in five Americans want the Senate to thoroughly examine the president’s nominees to be federal judges . . .” In our local paper, we got this alternative lead: “More than three-quarters of Americans say the Senate should aggressively examine federal judicial nominees and not just approve them because they are the president’s choices.”

Either way the story is introduced, it folds neatly into the Senate Democrats’ playbook. You can count on Democratic senators to recite this “fact” as though it were decisive in favor of their filibuster strategy. And the AP can, with a perfectly straight face, say that it put no spin on its own poll, asked no “slanted” question, and published a story with no intent to help or harm either side in the Senate debate.

Okay, let’s look at the question AP asked, and the responses it got:

As you may know, the president nominates federal judges, but the appointments must be approved by the U.S. Senate. Do you think the Senate should:
Give the president’s judicial nominees the benefit of the doubt and approve them without a lot of scrutiny: 18%
Take an assertive role in examining each nominee: 78%
Not sure: 4%
The set-up before this question is asked consists of three questions about how conservative or liberal respondents think judges are, how conservative or liberal they’d like Pres. Bush’s nominees to be, and how much they trust him to make the “right kind” of appointments to the bench. In themselves, these are pretty worthless questions, especially the two about judicial ideology, which give respondents no chance to say that judges, as judges, really ought to have no ideological leanings at all. And they completely fail to provide any context for the question that became the headline result of the poll. When respondents are asked the question above about the Senate’s role in judicial appointments, they have been given no contextual information about the months and years of filibustering in which Democrats have engaged, or about the fact that all the filibustered nominees have been “examined” already in hearings by “assertive” senators on both sides, or about the fact that all the nominees currently blocked by the Democrats have the support of the majority of the Senate.

In short, the poll asks respondents to choose, in a context-free environment, between an alternative that no political leader is advancing (that the Senate simply rubber-stamp judicial nominations in deference to the president), and an alternative that no political leader is against (that the Senate fulfill its responsibility to exercise its independent institutional judgment on the nominations). The only news in this poll is that AP/Ipsos could find 18% of a random sample of Americans to sign on to the stupid proposition that senators be slackers.

So why did AP task its pollsters to ask a question that yields no useful information? And why did it send out a wire story leading with the results of that one question, the most worthless one in the poll? The most natural answer seems to be that the poll and the story give Democrats some fresh talking points going into Tuesday’s cloture vote.

A Helpful Reminder from the New York Times



Text  



An editorial in today’s Times provides a sobering reminder to anyone tempted to believe that the hard-left (to adopt Sen. Schumer’s way of speaking) interests driving the ideological opposition to President Bush and his judicial nominees have any real interest in compromise.

According to the Times, “[i]t is encouraging that moderates from both parties are trying to work out a compromise. But they should agree only to one that does not make unacceptable concessions on Senate procedures and does not lead to the appointment of unqualified, ideologically extreme judges.” Hmmm. One wonders what it is, exactly, that is “encouraging” about the efforts of the “moderates”, since they all appear to have conceded–implicitly, at least–that the practice of the Times and the extremists among the Senate Democrats of slandering the president’s nominees as “unworthy,” “hard-right ideologues” is just so much nonsense. It’s an interesting move, actually: The Times purports to desire compromise, but only if it results in (a) continuation of the Democrats’ unprecedented and unjustifiable abuse of the filibuster and (b) continuation of the practice of demonizing jurists who dare to think differently about the Constitution and the law than those who advise the editorial writers for the Times.

Hardly



Text  


Frist’s Office on the Schedule



Text  




STATEMENT FROM THE OFFICE OF THE SENATE MAJORITY LEADER
Debate on fair up or down votes for judicial nominees began on Wednesday, May 18, 2005, with the nomination of Priscilla Owen to serve as a judge on the 5th Circuit Court of Appeals, and discussion of the nomination of Janice Rogers Brown to serve as a judge on the D.C. Circuit Court of Appeals. By the close of business on Friday, May 20, 2005, the Senate will have conducted approximately 25 hours of debate on fair up or down votes.

CLOTURE FILED

Today cloture will be filed on the nomination of Priscilla Owen to serve as a judge on the 5th Circuit Court of Appeals. The roll call vote on the cloture petition will occur on Tuesday, May 24, 2005.

VOTES BEGIN
As previously announced, on Monday, May 23, 2005, the Senate will conduct a roll call vote at 5:30pm on a motion to instruct the Senate Sergeant at Arms to request the attendance of absent Senators. As of Friday, May 20, 2005, further procedural roll call votes during Monday, May 23 are possible. In addition, it is possible the Senate will conduct further procedural roll call votes on Tuesday, May 24.

PRECEDENT DESCRIBED
If the Senate invokes cloture on the nomination, the Senate will be required under its rules to give the Owen nomination a fair up or down vote. In the event the Senate fails to invoke cloture on the Owen nomination and no reasonable arrangement for fair up or down votes is agreed to, the Majority Leader will begin the constitutional option by making a point of order to the Presiding Officer regarding the appropriate amount of time to be used by the Senate to debate Circuit and Supreme Court nominations.

MEMBERS DECIDE

To ensure that all 100 Senators have the opportunity to decide on the precedent, the Majority Leader remains hopeful that parliamentary tactics will not be employed to prevent all 100 Senators from deciding the question. If the motion to table is successful and completed, the precedent regarding judicial nominations will then take effect.


Lincoln and Majorities



Text  



Some useful reminders courtesy of John Cornyn’s office:

Sen. Lincoln just said that Justice Owen should have a clear and substantial majority to be confirmed: “What we are here to say is that when the opportunity comes, we need a clear—a clear and substantial amount of this body to say that this is the person for this job.”

Well, a bipartisan majority voted for cloture in the last Congress—four times. A stronger majority stands ready to vote for her now. And that the best way to see if she has a majority is to have a vote.

And the fact is, throughout history, the Senate has ALWAYS confirmed judges by a majority vote – including judges who received less than 60 Senate votes:

President Carter: Abner Mikva D.C. Cir. 58-31 Sept. 25, 1979
L. T. Senter N.D. Miss. 43-25 Dec. 20, 1979
President Reagan: J. Harvie Wilkinson III 4th Cir. 58-39 Aug. 9, 1984
Alex Kozinski 9th Cir. 54-43 Nov. 7, 1985
Sidney A. Fitzwater N.D. Tex. 52-42 Mar. 18, 1986
Daniel A. Manion 7th Cir. 48-46 June 26, 1986
President Bush: Clarence Thomas S. Ct. 52-48 Oct. 15, 1991
President Clinton:Susan O. Mollway D. Haw. 56-34 June 22, 1998
William A. Fletcher 9th Cir. 57-41 Oct. 8, 1998
Richard A. Paez 9th Cir. 59-39 Mar. 9, 2000

Breaking News: Lindsey Graham Going Wobbly?



Text  



Breaking news: Word is that Lindsey Graham may be a lynchpin in a bad deal being cooked up on judges. Lindsey, can you hear us? We will not be able to hold back a primary challenge if there is some backroom deal with your name on it backstabbing the president’s judicial nominees. Politics and principle happily converge here: Every judge, and the American people, deserves an up-or-down vote. Those wishing to fortify Senator Graham can contact his offices, here.

Pages

Sign up for free NRO e-mails today:

Subscribe to National Review