Bench Memos

NRO’s home for judicial news and analysis.

Not So Extraordinary


A Legal Times story on the aftermath of the deal reports that, as expected, some liberal interest groups will find an “extraordinary circumstance” just about anywhere:

Among the four most widely discussed potential high court nominees–U.S. Court of Appeals Judges J. Michael Luttig of the 4th Circuit, John Roberts Jr. of the D.C. Circuit, and Michael McConnell of the 10th Circuit, and Attorney General Alberto Gonzales–all have past statements and court rulings that, liberal interest groups say, could arguably meet the new, elevated filibuster threshold.
By this standard, the appointment of any conservative to the Supreme Court by President Bush would be “extraordinary.”

Thought of the Day


Rush Limbaugh made a good point today: As the media debates whether W. Mark Felt was great, near great, or just a regular guy who accidentally saved the nation from presidential corruption, pause to recall that a central Democratic charge against appellate court nominee Brett Kavanaugh is he leaked to the press as a member of Ken Starr’s Office of Independent Counsel.


Not A Parody: The Wisdom of the “Sensible Center”


This letter to the editor appears in today’s Washington Post:

It’s risky to predict what current events will become historical turning points, but I’m willing to take a chance on this one. Years from now, students and analysts of American political life will point to May 23, 2005, as the day “radical moderates” took a stand and began to recapture the sensible center of U.S. politics. The 14 Republican and Democratic senators who came together to avert the detonation of the “nuclear option” over judicial nominations are owed a much greater debt of gratitude than many people yet realize.

By uniting in defense of America’s historical commitment to consensus on issues of great national importance, they proved that moderates possess political muscle and are not afraid to use it judiciously and effectively. As a result, President Bush’s judicial nominees will get the up-or-down votes they deserve, and the Senate can turn its focus from procedural matters back to the important challenges facing our country.

Predictably, those whom I call “social fundamentalists” — the vocal minority who would purge from the Republican Party those who don’t meet their narrow ideological litmus tests on a handful of social issues — have gone to Defcon 2, just short of a nuclear launch, in their reactions.

Gary L. Bauer, president of American Values, called the compromise a “sellout”; the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, accused the seven Republicans of lacking “backbone” and “fortitude”; and James C. Dobson, head of Focus on the Family, spoke of his “disappointment, outrage and sense of abandonment.” Outraged talk radio hosts are vowing to help defeat the seven GOP senators in their next primaries.

History one day will reflect that the high-water mark of the “social conservative” movement in this country came two months ago with the Terri Schiavo case, when a vocal and organized minority persuaded Congress to intervene. Most Americans did not support that intrusion. History also will record that the tide began to turn just eight weeks later, as radical moderates flexed their political muscles to return the sensible center in American politics to its rightful place.


Oldwick, N.J.

The writer is a former governor of New Jersey and a former administrator of the Environmental Protection Agency.

Note that Whitman falsely asserts that the anti-cloture reform agreement means that “President Bush’s judicial nominees will get the up-or-down votes they deserve.” In fact, the agreement promises cloture on only three judicial nominees and does not ensure that any of the President’s other judicial nominees, pending or future, will get an up-or-down vote. For this very reason, I suspect that this “historical turning point” will have the same lasting significance as the last momentous triumph of “radical moderates”–the defection of Senator What-was-his-name from the Republicans in 2001 that was to result in lasting Democrat control of the Senate.

If the agreement in fact said what Whitman misrepresents it to say, the “social fundamentalists” whom Whitman detests would be celebrating. Thus, the apparent difference between Whitman and conservatives is that (a) she doesn’t understand the agreement and they do, (b) she thinks the American people are too stupid to notice her misrepresentation, or (c) she likes to pretend that defeats are victories–or, of course, some combination of the above. Hardly the makings of a powerful “sensible center.”

A Temporary Deal?


USN&WR’s Terrence Samuel thinks so, based on this article from TAP.

Gone in 4


Southern Appeal says Rehnquist steps down in four. Hot fun in the summer time (she says in a voice of dread).


Re: Interesting Cornyn Questions


Andy, I’ll bite. Any of the grounds you mention–all squarely based in judicial philosophy–should be sufficient for voting against a nominee to the Supreme Court, or any other court. Jurists who would make up the Constitution as they go shouldn’t be given a pass just because they haven’t cheated on their taxes. Judicial philosophy is always a legitimate subject of debate, and a legitimate ground for senators’ votes, positive or negative.

The tougher question you ask is, can judicial philosophy ever justify a filibuster of a nominee? I wouldn’t want to answer yea or nay on that until another question is answered first–namely, what do we mean by “filibuster”?

Is it a “filibuster” any time one or more senators refuse to join a unanimous consent agreement (the customary means of controlling the terms and duration of debate in the Senate) that will, in their opinion, bring a nomination to a floor vote after insufficient debate? Such delaying tactics may be legitimately used if the alternative is that the majority leadership ramrods a nomination through the process, while a delay might provide some persuasive opportunity to the minority to change some minds in the hasty majority. If that’s a filibuster, I’m all for it under the right circumstances.

Or do we reserve the name “filibuster” nowadays for any occasion when 41 to 49 senators simply act to obstruct a floor vote permanently, with no intent to persuade anyone of anything, no matter how much time passes or how much talk occurs? That is the abuse of which Democrats have been guilty these last few years (and which I said here a week ago was the new principle of minority power implicitly enshrined in The Deal). If that’s a filibuster, I’m against it in all circumstances–certainly in cases of judicial or executive nominations, anyway, and maybe even in legislation too.

When a filibuster begins or is in progress, it may be hard to tell which of these is occurring, though with the passage of time it becomes pretty plain. The difference of principle is that the first encourages deliberation and facilitates the wise exercise of majority rule, while the second stifles deliberation and frustrates any exercise of majority rule. Clearly the Senate Democrats crossed the line from the first to the second when they made it clear that there were no circumstances under which they would tolerate a floor vote on certain judicial nominations.

This was the abuse that brought Republicans to the brink of stating that the rules required only a simple majority of the Senate to attain cloture on a judicial nomination. Would such a threshold make it impossible to engage in the first, less objectionable form of filibuster above? Probably not, since it would still remain possible to tie up the Senate for a decent interval just by objecting to a unanimous consent agreement to bring on a final vote. Cloture would still take time to achieve, would still usually result in ample debate afterward as it does now, and would not be achieved hastily in a Senate culture that still respects minority views and the individual senator’s right to be heard at length. (I never bought the “sky is falling” view of how the Byrd option would radically undermine that Senate culture.)

However, if senators in either party are to have a meaningful opportunity to change their colleagues’ minds about judicial nominees, another tradition must go–namely, the ridiculous practice of mincing around the questions any sensible person would ask the nominees during Judiciary Committee hearings. If you want to know what a nominee thinks of abortion, or the influence of international law, or anything of a substantive character, ask away–and expect real answers. We should tolerate nothing less than total candor on the subject of broad constitutional opinions and principles of reasoning, especially in hearings on Supreme Court nominees. Hiding behind “judicial independence,” or pretending that answering any real questions would invite improper speculation on cases that might come before the Court, just won’t do–not in an age when it cannot be assumed that nominees understand the difference between interpretation and policymaking. (An age that has lasted more than a century already, but that’s another story.)

Unpopular Answers?


I might surprise you, Andy, with some of my answers. First, I don’t think that simple disagreement on constitutional doctrine is a good reason to vote against a nominee to the Supreme Court. The Constitution provides for presidential nomination of judges and justices in the same clause that provides for nominations of ambassadors and other officials, and I believe substantial deference is due to all such nominations, provided there are not questions of character or fitness that would make one unsuited for the job. This means that if a Democratic president nominates highly qualified liberals, the Senate should confirm them. So, in my mind, the Senate was right to confirm Justices Breyer and Ginsburg, even though I believe both are profoundly mistaken in their approach to constitutional interpretation and many other legal questions. Does this mean anyone is fair game? I’m not sure. But I am skeptical that a president would nominate someone to the Supreme Court that is so far afield. President Bush is not likely to nominate my friends Richard Epstein or Randy Barnett, and I doubt a Democratic president would seriously consider appointing a Cass Sunstein or Mark Tushnet. (Of course, if all Senators had my view about the inappropriateness of imposing ideological litmus tests on judges, maybe such nominations would be more likely . . . ).

As for the filibuster, I believe it should never be used to block confirmation of a judicial nominee, period. It is one thing to use the filibuster for its traditional purpose of extending debate–perhaps under the theory that a longer debate will cause some Senators to turn against a truly controversial nominee–but I think the use of the filibuster for judicial nominees is wrong, and contrary to the constitutional design, even if I don’t

Interesting Cornyn Questions


So Sen. Cornyn says: “[W]ith Owen’s confirmation, it should now be settled that disagreement over judicial philosophy is not an ‘extraordinary circumstance’ — and, thus, no justification for a filibuster. Call it the ‘Owen standard.’ Senators should vote their conscience, but debates over judicial philosophy and disagreements about past rulings are no grounds for violating Senate tradition by imposing a supermajority voting requirement for confirming judges.” I happen to agree with him on that. But judging from my mail and some previous exchanges on the Corner, I suspect a number of my colleagues don’t.

So let’s say, just for argument’s sake, that it’s 2009, there’s an opening on SCOTUS, and a Democratic POTUS nominates a liberal who has stellar academic and professional credentials, no personal problems that would warrant opposition, and who believes: Roe is good constitutional law, the right to privacy is expansive enough to impose gay marriage judicially, the death penalty is unconstitutional, foreign law should be a guide to interpreting the U.S. constitution, etc.

Three questions arise: (1) Although I suspect there is consensus that this would be an adequate basis to justify voting against confirmation, do people disagree with that? (2) Are these facts enough to justify a filibuster? (3) If your answer to the second question is “yes,” would your answer be the same if the Democrats had not filibustered nominees for the past four years?

All Options Remain Open


Sen. Cornyn on the deal:

I was not a party to this deal. I firmly believe we should restore the Senate tradition of majority vote on all judicial nominations. And I am disappointed that the Senate did not do that last week.

It is nevertheless important to recognize three important elements of the deal reached by these 14 senators:

First, although it doesn’t solve the problem today, the deal does keep all options open — including, of course, the Byrd option — for solving the problem in the future.

Second, with Owen’s confirmation, it should now be settled that disagreement over judicial philosophy is not an “extraordinary circumstance” — and, thus, no justification for a filibuster. Call it the “Owen standard.” Senators should vote their conscience, but debates over judicial philosophy and disagreements about past rulings are no grounds for violating Senate tradition by imposing a supermajority voting requirement for confirming judges.

Third, should the Owen standard be violated and a baseless filibuster against a judicial nomination be launched in the future, that would be a violation of the agreement — and, thus, grounds for the use of the Byrd option to restore Senate tradition.

AP Dissects Deal-Making


Howard Bashman highlights this interesting AP story on how the judge deal was negotiated and struck. Among other things, the story notes that within minutes of the deal, Senate Minority Leader Harry Reid sought assurances from participating Democrats that they would vote to filibuster judicial nominees William Haynes (4th Circuit) and Brett Kavanaugh (D.C. Circuit), but that Senator Ben Nelson balked. Senator Mary Landrieu reportedly agreed in Reid’s office, but her office maintains that no commitment has been made.

The Washington Post’s New Aversion to the F-Word


The Washington Post’s front-page headline this morning—”Democrats Extend Debate On Bolton“—struck me as curious. Why the longer, less lively phrase “extend debate” rather than the punchy “filibuster”?

As it happens, a search of the Post’s archives reveals that the Post has used the term “filibuster” in headlines a total of 1,775 times. Until today, it had never used “extend debate” in a headline as a synonym for “filibuster”. (The only time the Post had ever previously used “extend debate” in a headline was in a 1999 article titled “Commissioners Extend Debate on Teacher Fee”.)

Might the Post be providing rhetorical cover for Democrats?

Roe: Invention, Overreach, Arbitrariness, Textual Indifference


Given the central role that Roe v. Wade plays in the Left’s battle to maintain control of the Supreme Court, it is encouraging that a number of today’s thoughtful liberals are coming to recognize and publicly acknowledge that Roe is jurisprudentially indefensible and deeply harmful to the proper functioning of the American political system. (There was, of course, a flurry of liberal criticism of Roe in its immediate aftermath, but political correctness silenced such criticism over the last couple decades.)

An example on the jurisprudential point is Will Saletan’s new review of Linda Greenhouse’s sympathetic biography of Justice Blackmun. Saletan concludes from Greenhouse’s account that “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.” (Oddly, Saletan’s next sentence states, “But they also implicate his critics,” even though the only supposed critic he discusses is Chief Justice Burger, who fully joined Blackmun’s opinion in Roe while also writing a separate concurring opinion.)

thursday night


Frist just filed cloture on Janice Rogers Brown and William Pryor, right before they went to recess. So they’re up when the Senate is back.

Vote-Count Report


Replacing Priscilla Owen


Texas conservatives are happy that Priscilla Owen will finally be sitting on the Fifth Circuit Court of Appeals—but they have reason to worry about who will now replace her on the Texas Supreme Court. She has been a conservative powerhouse there. Republican governor Rick Perry, facing a possible primary challenge from Senator Kay Bailey Hutchison, is being advised by some to appoint a woman to replace her. That imperative is in some practical tension with the objective of getting another solid conservative on the court.

To the extent that there is a conflict—if the decision ends up being between a conservative man and a not-very-conservative woman—Perry is probably better off picking the conservative. People who care a great deal about the number of women in high office are going to vote for Hutchison over Perry (or, even more likely, to vote in the Democratic primary). If Perry survives a Hutchison challenge, on the other hand, it will be because he rallied the conservative base.

Two Get Through, Others Stalled


The Senate Judiciary Committee approved two Bush nominees for the U.S. Court of Appeals for the Sixth Circuit–Richard Griffin and David McKeague. Both are nominees from Michigan who were previously blocked by Senate Democrats in retaliation for Republicans’ blocking some of President Clinton’s Michigan nominees. Action on two other appellate nominees, Terrence Boyle and Brett Kavanaugh, scheduled for today was put off yet again. This AP story does not indicate why the Boyle and Kavanaugh nominations were held over, though there is speculation that the Kavanaugh nomination is doomed by tacit agreement of the “Gang of Fourteen.”

“Dead Loss for the Republicans”


Would Frist have had 50 Votes?


Perhaps I’ve missed it, but I would have thought that there would be a lot of discussion whether Senator Frist would have had the 50 votes he needed (together with the VP’s tie-breaking vote) for changing the filibuster rule if the agreement among the 14 senators hadn’t been reached. Stated somewhat differently, it cannot be presumed that all seven Republicans who signed the agreement would have opposed the Frist proposal if they had faced a binary choice between that proposal and doing nothing. Those of us who oppose the agreement would have far more reason to be infuriated with the Republican signatories if the agreement actually prevented 50 senators from approving the Frist proposal. Conversely, if the Frist proposal would not have passed, those who defend the agreement could argue that the agreement has produced benefits (the confirmation of Owen and, presumably, the imminent confirmations of Brown and Pryor) that would not otherwise have occurred. (Of course, this argument by defenders of the agreement would have something of a bootstrapping quality to it, since it would depend on the judgment that it was defensible for Republican senators not to support the Frist proposal.)

For what it’s worth, a very knowledgeable source assures me that Frist would have had 50 votes–specifically, that Dewine and Graham would have supported the Frist proposal if the agreement hadn’t been reached (and that no non-signatories would have jumped ship). This same source tells me that Warner, not McCain, was the real driving force in putting the agreement together.

Far Be it From Me...


To get in a wrestling match with John Podhoretz, who calls those of us who disagree with his assessment of The Deal on judicial filibusters “unhinged.” On John’s side is Linda Chavez, who, as noted yesterday in The Corner, calls it a better deal for the Right than for the Left “in the long run.” Could be, but that could turn out to be a very long run indeed. Byron York, in The Hill, notes the Democrats’ embrace of incoherence. Any takers on a bet that the Democrats don’t care about looking coherent in this argument? And this morning, George Will takes a pretty balanced view of The Deal, and leads by saying it was reached by “seven Democrats essentially supported by their party’s base and seven Republicans at odds with theirs.” For today at least, Will appears to count himself among the unhappy GOP base. I will happily hang my hat this time where York and Will have put theirs.

Greens Vs. Judges


Earthjustice praised the judge deal, in part because it suggests William Myers will never be confirmed. It has also issued a press release lamenting confirmation of the “anti-environmental” Priscilla Owen. I’ve addressed these charges here and here.


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