Bench Memos

NRO’s home for judicial news and analysis.

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.

A Unanimous Nominee?


Legal Affairs’ Debate Club considers whether there is a potential Supreme Court nominee who could be confirmed 100-0. Orin Kerr has an idea of one candidate, John Roberts, who should be confirmed 100-0, but I wouldn’t bet on it.


Four More in the Queue


Today should give a fairly clear indication of what the deal means for those nominees it did not explicitly mention as the Senate Judiciary Committee is scheduled to consider the nominations of four appellate nominees: Terrence Boyle, Brett Kavanaugh, Richard Griffin, and David McKeague.

Questions for Senators Byrd and Landrieu


More than four years ago, on May 9, 2001, President Bush nominated Texas Supreme Court Justice Priscilla Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. Today, both Senator Byrd and Senator Landrieu voted to confirm her nomination. But on four separate occasions in 2003, both Byrd and Landrieu voted in support of the Democrats’ successful filibuster of her nomination.

On what principled basis do Byrd and Landrieu justify having filibustered a nominee whom they now vote to confirm? Why have they contributed to a four-year delay in Owen’s confirmation? Do they take the voters of West Virginia and Louisiana to be fools who can readily be duped into thinking that today’s vote marks Byrd and Landrieu as more responsible than their Democrat colleagues? Will each, in the fashion of John Kerry, boast to have voted for her after voting against her?

Left Annoyed by the Deal, Con’t



The Importance of Byrd and Landrieu


What is important about the fact that Senators Robert Byrd and Mary Landrieu voted for Justice Priscilla Owen? Byrd and Landrieu are both part of the Gang of 14: they are signatories to the document that allows filibusters only in “extraordinary circumstances,” which now, by definition, did not obtain in the case of Justice Owen, who was painted for four years as an “extremist.”

“pretty good for conservatives.”


I’m slow to link: David Frum on the deal.

Owen Confirmation: What It Means about “Extraordinary” and “Ordinary” Circumstances


The Owen confirmation has now firmly established that the predictable attacks from liberal pressure groups, Chuck Schumer, Ted Kennedy, and Harry Reid, asserting that President Bush’s judicial nominees are “extremists,” does not constitute an “extraordinary circumstance.” Rather, it is truly an “ordinary circumstance,” which we can expect to see more of, and which does not in any way justify a future filibuster under the 14 Senators’ “Memorandum of Understanding on Judicial Nominations.” I’ve issued a press release to that effect, at the Judicial Confirmation Network website.

re: Roll Call


also worth noting: Ben Nelson and Chafee voted against.

Roll Call


56-43, Owen Confirmed


The Washington Post vs. Pryor


The Post’s case against Pryor is awfully thin. It’s impermissible for a nominee to think that the appointment of Justice Souter was a mistake? To think that the 5-4 result in Bush v. Gore might have the salutary effect of reminding people how important judicial appointments are? To support “states’ rights,” or at least to do so more “aggressively” than the dainty editors of the Post would like? None of these positions establishes what the Post asserts they establish: that Pryor’s view of the judicial function is “overtly political.” The Post’s own politicized view of judging does not cease to exist simply because it is hidden (perhaps even to itself, so lost in editorial pretension are its writers).

Putting Judicial Nominees in Perspective, Part IV


The anti-cloture reform agreement among 14 Senators encourages the President to consult in advance with senators about prospective nominees. That is a very bad idea, for reasons that I have explained here and here. It is especially bad because, as my previous posts in this series (on Rosemary Barkett, Lee Sarokin, and a not-so-hypothetical leftist nominee of a Democrat President) show, Senate Democrats have demonstrated that they do not deserve to be taken seriously as arbiters of the qualifications of judicial nominees.

But in all fairness to Senator Kennedy, I must point out that he is not always wrong about President Bush’s nominees. Well, at least once he wasn’t. Sort of.

Kennedy was one of nine Democrats who voted against an earlier nominee of President Bush’s. That nominee, Kennedy argued, had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy. The nominee’s record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling.” Among other things, when litigating on behalf of a state, the nominee had made “reactionary arguments” contesting the extent of Congress’s power to protect against discrimination.

In the area of voting rights, Kennedy thundered, the nominee’s record was equally bad. The nominee “was willing to defend the indefensible”—the use of literacy tests for voting–and had thereby demonstrated a willingness to discriminate against the poor and uneducated.

According to newspaper reports, the nominee had even described affirmative-action programs as affirmative discrimination.

Kennedy also found that the nominee’s record on sex discrimination raised “troubling questions.” By arguing for a deferential standard of review of classifications based on sex, the nominee had shown that he was not “genuinely concerned about the rights of women.”

And, of course, Kennedy found the nominee’s responses onRoe v. Wade “alarming.”

In sum, Kennedy feared, the nominee would work with others “to turn back the clock on the historic progress of recent decades.”

In retrospect, there is ample reason for those who have a proper understanding of the role of the courts in our constitutional republic to wish that Kennedy’s arguments had prevailed. For the nominee against whom Kennedy railed was none other than Justice David H. Souter, nominated by the first President Bush to the Supreme Court in 1990.

As a Justice, Souter has been far more left-wing than even Kennedy might have hoped. Contrary to media depictions of him as a “moderate,” Souter has read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution. Souter’s only arguable saving grace as a Justice has been a prose style so impenetrable that his opinions often verge on the incomprehensible.

It is particularly instructive that Kennedy deployed his full arsenal of clichés against Souter, for those same clichés are now being used—with comparable disregard for accuracy—by Senate Democrats generally against President Bush’s judicial nominees. Kennedy’s insistence that a Supreme Court nominee have demonstrated his leftist credentials in order to be confirmed has now become the position of Senate Democrats on President Bush’s appellate-court nominees. Senate Democrats do not want judicial nominees who will be responsible judges. They want judicial nominees who will be their political allies, imposing through the courts what the Left cannot achieve through the political processes.

(Source of Kennedy statements about Souter: Kennedy’s October 2, 1990, Senate floor statement.)

Interesting Take--and What About Griffith?


An insightful reader makes some predictions (reacting to this morning’s Corner discussion in which I noted that the MOU does not mention Kavanaugh and Haynes):

You say, “I don’t understand why they weren’t mentioned in an MOU that went to the trouble of mentioning the other 5.”

Kavanaugh, Haynes were both left unmentioned. Thomas Griffith, another controversial nominee about to come to the floor, was also left out. I believe that these three will be the “test cases” for the “extraordinary circumstances” clause.

The three green-lighted nominees — Owen, Brown, and Pryor — were opposed only on grounds of ideology. There were no real character-related objections to them (besides “judicial temperment,” which really came back down to ideology.).

Saad and Myers, both thrown overboard, were also opposed for non-substantive grounds. Saad would tip the balance on the 6th Circuit and is hated by Reid. Myers would have been an “anti-green” on the West’s 9th Circuit. There were no character-related objections to either (except for Reid’s weird reference to Saad’s FBI file).

These five were handled in a straight-up trade. The Dems cave on three conservatives who were only opposed on ideological grounds, and the GOP tosses overboard the one (of four) 6th Cir. nominees who really drew fire, plus a nominee to a liberal court where he would have no marginal impact.

This leaves the other three, who share in common one important trait: they are opposed on ideological grounds PLUS there are major objections to their records:

1. Haynes, former [general counsel] of the Pentagon, is seen as being responsible for War on Terror policies that, critics claim, show a lack of respect for the Rule of Law.

2. Kavanaugh, former Starr investigator, is claimed to have been leak prone in an lawless political war on the Clinton Administration.

3. Griffith let his bar membership lapse while practicing in Utah.

(I’m not saying I agree with the portrayals[,] … I’m just echoing the critics.)

They will be the test cases for “extraordinary circumstances.” After much “deliberation” (or an attempt to put on such appearances), the Fabulous Fourteen will kill the Haynes and Kavanaugh nominations, and let Griffith (who Reid has already offered to support in previous negotiations) succeed. By doing this, the Fourteen can paint themselves as deliberative, nonideological, nonpartisan, and cohesive.

No Surrender


The NYT found the judge deal “heartening,” but still defends resort to the filibuster. “While the idea of letting the majority rule is at the heart of much in American democracy, it has little to do with the Senate, where some members represent 10 times as many people as others. There is absolutely nothing unfair about allowing a minority that actually represents more American people to veto lifetime appointments of judges who are far outside the mainstream of American thinking.”

Post Endorses Owen


Today’s Washington Post calls for Senate Democrats to drop their opposition to Justice Owen’s confirmation. “Justice Owen would not have been our choice for the job. But she is undoubtedly well-qualified, and the case against her is not strong enough to justify denying the president his choice. Mr. Bush did win the election.” Alas, the same editorial encourages opposition to Justice Brown and Judge Pryor.

In Case You Haven’t Checked In


Sky Falling at Noon


From a mass e-mail from Senator Cornyn’s office: “For four years, two weeks and two days, Justice Owen’s opponents have warned that allowing a simple up-or-down vote on Priscilla Owen would cause the sky to fall, mountains to crumble, and rivers to overrun their banks. They’ve told us that the Republic as we know it would cease to exist and that the judiciary would be ruined for all time. So at noon today, we are encouraging everyone to don their hard hats—just to be safe.”

This image was send around too:

The Real Leader of the Senate


David Broder may say it’s John McCain, but George Allen may be a contender. From the Boston Globe: “‘I’m disappointed in the deal. I don’t feel at all bound by it. William Myers should be accorded a vote. That may be when we have the battle.” You go, Allen. (Of course, he’s greatest advantage is that he is not Majority Leader.)

RE: Roll Call


A roll-call watcher inside the Senate notes: “And keep in mind that before the vote ended, a few Senators changed from “yea” to “nay.” This group includes Biden, Sarbanes and others. I guess now they, too, can have a great line like “I actually did vote for her–before I voted against her.”

I guess they didn’t want there to be too few nays. Not that politics are involved or anything. “


Subscribe to National Review