Bench Memos

NRO’s home for judicial news and analysis.

Short Memories


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?


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


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.



Frist’s Office on the Schedule


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.


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.

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.

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.


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


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?


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.

The Senate Debate


I got a few frantic e-mails from the Senate about Arlen Specter a little bit ago, folks thought from the sound of his speech he was about to come out against the constitutional option. He didn’t but he made some folks extra uncomfortable.

Putting Judicial Nominees in Perspective, Part III


Imagine, if you will, that a Democrat President nominated a judge whose constitutional and policy views were, by any measure, on the extreme left fringes of American society.

Let’s assume, for example, that this nominee had expressed strong sympathy for the position that there is a constitutional right to prostitution as well as a constitutional right to polygamy.

Let’s say, further, that he had attacked the Boy Scouts and the Girl Scouts as organizations that perpetuate stereotyped sex roles and that he had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.

And, to get really absurd, let’s add that he had called for an end to single-sex prisons on the theory that if male prisoners are going to return to a community in which men and women function as equal partners, prison is just the place for them to get prepared to deal with women.

Let’s further posit that this nominee had opined that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But then, lo and behold, to make this nominee even more of a parody of an out-of-touch leftist, let’s say it was discovered that while operating his own office for over a decade in a city that was majority-black, this nominee had never had a single black person among his more than 50 hires.

Imagine, in sum, a nominee whose record is indisputably extreme and who could be expected to use his judicial role to impose those views on mainstream America. Surely such a person would never be nominated to an appellate court. Surely no Senate Democrat would support someone with such extreme views. And surely Senate Republicans, rather than deferring to the nominating power of the Democrat President, would pull out all stops—filibuster and everything—to stop such a nominee.

Well, not quite. The hypothetical nominee I have just described is, in every particular except his sex, Ruth Bader Ginsburg at the time she was nominated to the Supreme Court in 1993.

President Clinton nominated Ruth Bader Ginsburg on June 22, 1993. A mere six weeks later, on August 3, 1993, the Senate confirmed her nomination by a 96-3 vote.

(The source for the information in the second through fourth paragraphs is “Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,” co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974. The information in the fifth paragraph can be found in the transcript of Ginsburg’s confirmation hearing.)

Deal Sessions & the Chairman


From the Washington Post: “Judiciary Committee Chairman Arlen Specter (Pa.), who has not said how he will vote on the rule change, participated yesterday.”

The “Frist Operation” is the “Byrd Option”


The lefties are furiously linking to this column by Norman Ornstein of AEI, trying to demonstrate the radical nature of the operation contemplated by Dr. Frist and the Republicans to restore the 214-year tradition of voting up-or-down on judicial nominees who have majority support.

Wrong. The facts: Senate procedures and practices can be set either by amending the Standing Rules of the Senate or by establishing parliamentary precedent. Amending the Standing Rules takes a simple majority vote, but such amendments can themselves be filibustered. So the same 60 votes needed to break the filibusters of President Bush’s judicial nominees would be required to amend the Standing Rules.

But Senate precedent (which is really at issue here: affirming and restoring the precedent of voting on judges with majority support) is properly established with 51 votes on a parliamentary ruling that cannot be filibustered. Such precedents can be consistent with, alter, or even override the Standing Rules.

Here’s how it would work in this case: Majority Leader Frist raises a parliamentary “point of order” that enough time has transpired debating the nomination of Justice Owen and that further debate would be “dilatory.” The chairman (usually whatever junior Republican Senator is rotating in the duty of sitting in the chair, but possibly Vice President Cheney, in his constitutional role as President of the Senate) upholds the point of order.

The Democrats appeal the ruling of the Chair. Republicans move to “table” the appeal. If 51 Republicans vote to table, a precedent is set for voting on judicial nominees. An up-or-down vote is then held on Justice Owen, and after a full debate on other nominees, a vote is taken on whether to confirm each of them, as well. The precedent applies to all nominees in the future, regardless of what party controls the White House and the Senate, unless a Senate majority changes it again.

This method of setting precedents by parliamentary procedure and majority vote is not new: it has been invoked by Senator Robert Byrd four times — in 1977, 1979, 1980, and 1987, as detailed in a Senate Republican Policy Committee policy paper.

Ornstein suggests that codifying the longstanding tradition of voting on judges, and leaving untouched the separate tradition of allowing filibusters of legislation, will somehow make it “easy and tempting to erase future filibusters on executive nominations and bills. Make no mistake about that.”

Actually, Norm, that is a mistake. Republicans are the ones who in the past have opposed “erasing” the real filibuster tradition on legislation. Democrats (including nine Democrats now sanctimoniously advocating the filibuster of President Bush’s nominees) have favored it. And if you think that a President Hillary Clinton and a Democrat-controlled Senate would hesitate for one second to do away with the legislative filibuster if it suited their purposes — irrespective of whether Republicans in 2005 did or did not clarify the precedent of voting on judges — think again.

Boxer-Feinstein v. Owen-Brown: Who’s Mainstream?


At a press conference yesterday billed as “Women’s Groups Against Nominees,” featuring liberal left groups like NARAL, National Abortion Federation, National Organization for Women, and Planned Parenthood, Feminist Majority, and the Religious Coalition for Reproductive Rights, Senator Barbara Boxer (D-Calif.) denounced as extremist Justice Priscilla Owen and Justice Janice Rogers Brown.

Boxer declared that Justice Owen has ruled on “a series of issues where she’s hostile to the people.” What Justice Brown “wants to do to our lives and other peoples’ lives” is “frightening,” she said. To “use these two women nominees to say that the Republicans care about women, you know, is like saying that Clarence Thomas has ruled in favor of African Americans, when in fact he has been the leader on the opposite side.”

Boxer reveals her deep ignorance of the role of judges in our constitutional system and her inability to see beyond the liberal left view that judges can rule for any party or idea they find sympathetic or attractive. She can’t even conceive that a judge is supposed to be a neutral umpire, applying the laws as written, without partiality.

Even more ironic is the idea that Boxer and her ilk would pronounce on who is “extreme” and who is “mainstream.”

In her last election, Boxer was supported by 58% of the voters in California; California’s other Senator, Diane Feinstein, won only 56% of the vote. Justice Brown was supported by 76% of Californians in her reelection to the California Supreme Court, and 84% of Texans voted in the last election for Justice Owen.

LAT On Owen


The Los Angeles Times ran a surprisingly fair (and favorable) profile of Owen.


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.


Sign up for free NRO e-mails today:

Subscribe to National Review