Bench Memos

NRO’s home for judicial news and analysis.

“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:


Owen and Gonzales


In a parental-notification case in Texas in 2000, Alberto Gonzales, then a Texas Supreme Court justice, wrote that to construe the law’s provision for a judicial bypass narrowly would be “an unconscionable act of judicial activism.” Since Priscilla Owen was on the other side of the case, Democrats have used those words against her. Various conservatives–notably Orrin Hatch, Terry Eastland, and the folks at PowerLine and NRO (including me)–have disputed this account. So has Alberto Gonzales.

There are three theories about Gonzales’s words. 1) He was attacking Owen and the other dissenters. 2) He was attacking one or two of the dissenters but not Owen. 3) He wasn’t attacking anybody.

Eastland’s argument for 2) was that Gonzales was concerned about a narrow construction of the judicial-bypass provision, which was the major focus of Justice Hecht’s dissent but not of Justice Owen’s. Owen, he said, dissented mainly because of how the court had treated lower courts.

People for the American Way and Eric Boehlert of Salon argue in response for 1) because Gonzales refers to dissenting “opinions” at the start of the paragraph with the “unconscionable” line in it and because Owen did, indeed, try to construe the statute narrowly.

You could even make a case for 3)–the words of the passage don’t quite add up to an indictment of anybody without some additional interpretation of the context. Here’s the Gonzales paragraph: “The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent’s right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute’s legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.” (The paragraph continues, but that’s the end of the relevant section.)

You could interpret this passage a number of ways. Gonzales could, for example, be saying: Some justices want to read this bypass narrowly. But I’ve looked more closely at the legislative history than they have. For me to ignore what I know (but they apparently don’t) would be an act of unconscionable judicial activism.

Personally, I don’t buy 3). I buy 2). Gonzales refers specifically to Hecht’s dissent twice and refers specifically to Owen’s never. It’s Hecht who got to him, and who he was implicitly slamming.

I also don’t take Gonzales to be the last word in statutory interpretation or judicial decisionmaking–but for what it’s worth, I think the conservatives have the better of the argument here.

Gonzales’s decision can be found here.

Deal Rumor


Word on the street is that Sen. Salazar (D, Colo) has proposed a compromise whereby the Dems allow votes on all currently filibustered appellate nominees and agree to self-restraint except under extreme circumstances. (I agree with Adler: how do they define extreme? Chief Justice Scalia?) Regardless, I am not sure the Dems could keep their caucus together for a Supreme Court filibuster, and if they did it would probably cost them seats in 2006. In exchange, the GOP gives up the nuclear option in the 109th Congress and the filibuster goes back to being what it always has been: a mainly theoretical Sword of Damocles, as Stuart Taylor called it.

The Party of Pinocchio


In the last 24 hours, Sens. Richard Durbin (D, IL) Dianne Feinstein (D, CA) and Byron Dorgan (D, ND) have continued to spin the theory that 60 Clinton judicial nominees were “filibustered” by blue slips, holds, or other procedural devices, and that numerous other nominees in the 19th and 20th centuries were filibustered.

This is duplicitous. Two things are important when discussing filibusters – when and why one occurs. A filibuster happens when one or both of the means for limiting debate (unanimous consent or cloture) fail, not when they succeed. And temporary filibusters that do not abolish majority rule altogether can have a legitimate purpose (bargaining, delaying for more debate, etc.). Permanent filibusters intended to defeat a nominee who has majority Senate support are illegitimate.

Consider the words of moderate columnist Stuart Taylor:

“It is … misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as “filibusters” even genuine debates and short-term stalls that ended in cloture votes and confirmation.

“The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)

“And even the 1968 filibuster of then-Justice Fortas’s nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas’s request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote.”

Successful cloture votes are not filibusters. Generic delays or blockages are not filibusters. Blue slips and holds are not filibusters. For Durbin, Dorgan, and Feinstein to suggest otherwise is simply deceptive.

Dem Strategy Memos


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

Slippery Slopes


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

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

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

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

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

Would Moveon Filibuster the Pope?


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

An Abuse Compounded


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

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

Re: The Washington Post Is Unfair and Unbalanced


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

shutdown begins?


From Bill Frist’s office:

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

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

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

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

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

democracy in the senate


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

RE: Not to be Insensitive


I’d prefer to see more of their senators crying.

Schumer on Senate Rule Changes


The office of Sen. John Cornyn (R, Tex.) points out that though Sen. Schumer accused Senate Republicans of an activist reading of the Constitution in order to confirm activist judges, here’s what he said at a hearing on the issue of filibusters on judicial nominations:

Mr. KMIEC. . . . The real constitutional injury here . . . is the entrenchment of rules being imposed from one body onto the next.

Senator SCHUMER. Which could be changed by majority vote.

Mr. KMIEC. And should be changed by majority vote . . .

Senator SCHUMER. Right. That is why – I do not know why you say ‘imposed,’ because . . . the 51 Senators of the majority could propose changes in the rules.

[Judicial Nominations, Filibusters, and the Constitution: When a Majority is Denied Its Right to Consent, S. Hrg. 108-227, at 60 (2003).]

Not to be Insensitive


…but Kay Bailey Hutchison was just crying on the Senate floor, rounding up her personal portrait profile speech of Priscilla Owen. Can they just get down to business already and vote? It’s not like anyone whose a blank slate on these issues is listening to these speeches.

Extraordinary Circumstances


A critical problem with some of the compromises now being feverishly hashed over by the senators in both parties who are afraid of an up-or-down vote (on filibusters, that is) is that the “extraordinary circumstances” escape valve is sure to be abused. How do we know this? Well, truly “extraordinary circumstances” ought to lend themselves to a bipartisan vote against confirmation. If a nominee is truly extreme or out-of-the-mainstream, then even a 45-senator minority ought to be able to persuade 6 Republican moderates to vote no. Almost by definition, any controversial nominee who can ultimately garner the support of a Senate majority is sufficiently mainstream to deserve confirmation. Thus, in truly “extraordinary circumstances,” a filibuster shouldn’t be necessary; good, old-fashioned debate and persuasion should do the trick.

The only wrinkle here is party discipline. There are times when leadership in both parties leans hard on its senators and doesn’t allow them to vote their consciences. The Democrats are actually much more ruthless and effective about this: Their internal party rules give their leadership much more power to punish an apostate than do the Republicans’ rules. Nonetheless, there are “leadership votes” or “caucus issues” where both parties essentially force their members to get in line. Perhaps to best compromise of all is for both parties to agree to the exercise of the nuclear option (i.e., that 50 votes will be sufficient for confirmation) and simultaneously that neither party will insist on party discipline in votes on judicial confirmation. That way, the constitutional principle of advice-and-consent by a majority of the Senate will be respected, but the power of rational persuasion will be given free rein, and the minority need not fear raw power plays by the majority.

Pravda & Things


I just like the fact that Ed Whelan used the phrase “poppycock” in discussing today’s events.


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