Bench Memos

NRO’s home for judicial news and analysis.

Nobody Puts Baby in a Corner!


Focus on the Family ads not having desired effect in Alaska:

Sen. Lisa Murkowski says she has no intention of yielding to pressure from the Colorado-based evangelical group Focus on the Family, which is calling her a “squishy Republican” in its campaign to prevent Democrats from using the filibuster to block the appointments of some federal judges.

Firing back at the organization, which is running ads against her in Alaska and targeted her during its “Justice Sunday” simulcast to conservative churches around the country last weekend, Murkowski said the group is trying to undermine the Constitution’s separation of power doctrine that has served the nation well for more than 200 years.

“I am NOT squishy,” Murkowski said in a telephone interview from Washington. “This whole deal with Focus on the Family has gotten me mad. They’re not going to put me in a corner this way.”

But even as she resists the organization, Murkowski still is not saying how she would ultimately vote if the so-called nuclear option button is pressed and the Senate must choose whether to continue to allow judicial filibusters….

Re: McCarthy on the Filibuster


Ramesh raises a point that has been addressed by a number of readers as well. I could of course be wrong about the validity of filibusters — I hope not, but I have (no matter how you slice it) been wrong at one point or another. But I don’t think this much should be debatable: Article II, Section 2, Clause 2 does not draw distinctions among the high government officials the president is empowered to appoint. As a matter of constitutional law, if the filibuster is impermissible for any, it should be impermissible for all.

Obviously, the political considerations are different — e.g., lifetime judicial appointments raise different concerns than limited-term executive posts. Also, the fact that no one has tried to filibuster an executive branch official may be a good reason for steering clear of that potential problem in the context of dealing with the judges. But, as a narrow matter of law, I don’t think it would be any more appropriate to filibuster John Bolton than it would to filibuster Judge Pryor.


PFAW in PA, AK and ME


McCarthy on the Filibuster


Andy has written an interesting article on why he changed his mind about the constitutionality of the judicial filibuster. It seems to me that on his argument, the Republicans ought to go further than they are going: They should make it impossible to filibuster Cabinet as well as judicial nominees.

Richard Cohen


has good days and bad days, and today is one of the latter.

He has written about the judicial filibuster before giving the matter any thought. He presents as fact several highly contested claims. He says, for example, that Alberto Gonzales accused Priscilla Owen of “unconscionable judicial activism.” Gonzales plausibly denies that his remark was aimed at her. (Less plausibly, he denies that it was aimed at Nathan Hecht, a fellow Texas supreme court justice at the time. Greg Abbott, another colleague, dances around this issue on our home page.) Cohen suggests twice that Republicans are planning to get rid of the filibuster entirely, which is untrue.

Cohen suggests that all seven filibustered nominees are “extreme” and “Odious,” which not even the Democrats say about all seven. (Some of them are being blocked as payback for Republican judge-blocking under Clinton.) And he “reasons,” essentially, that they must be extreme since the Democrats are blocking them.

Then there’s this weird Cohenism: “Senate Republicans [are] as ignorant of cinema history as they are determined to roll over the minority Democrats.” This comes after Cohen has written about how Mr. Smith Goes to Washington introduced Americans to the glories of the filibuster. Does he really think that Republicans are unfamiliar with the movie? Or that the movie makes an airtight case for filibusters? Or for filibusters of judges? Does he think at all before he types?


End the Filibuster


The time for a vote is now–we have a new editorial up saying as much.

Kyl on the P.R. Battle


Last night, Hugh Hewitt asked Senator Kyl whether Republicans had pulled even in the P.R. battle over judicial nominations yet. Kyl responded:

I’m not sure that we have yet. The problem is that Bill Frist, the Senate Republican Majority leader, did not want to fire the first shot. He said he’s going to try to work out some resolution of this issue, as hard as he can. And the other side decided well, they were ready to go do battle. And so they’ve had all of their outside groups putting on advertising on TV, and they’ve all been making these speeches, and so on. So, I think they got ahead of us in the P.R. battle. Maybe we’re even now, but the fact of the matter is, the argument is on the side of retaining the tradition of the Senate. And an over 200 year old tradition of giving nominees an up or down vote. And far from changing the rules, we are simply restoring that tradition that existed for 200 years, that’s only been broken as a result of the last Congress, when these judges were filibustered by the Democrats.
More of the interview is available at

The Judicial Balance


In reference to Jalk Balkin’s comments (see here and here), it would seem to me that the balance of the judiciary largely reflects presidential voting over the past decades. Republicans have held the White House for 23 of the past 35 years, and 17 of the past 25, so it seems only natural that Republicans have been responsible for the lion’s share of judicial appointments.

Boyle: So Close, Yet So Far


The News & Observer on the latest delay in Judge Terrence Boyle’s bid for confirmation to the Fourth Circuit.

Specter Still Seeking Deal


The Philadelphia Inquirer reports on an interview with Senator Specter calling for “a show of independence” by Senate Majority Leader Bill Frist to reject the calls for a nuclear showdown and forge a compromise. The filibuster fight is largely driven by activists on the extreme, Specter said. Adding “I think the way to approach it is for both party leaders not only to release their caucuses from party-line voting but to urge independent voting on the issue. I think if that were to happen there wouldn’t be a filibuster and some of these nominees might well be defeated.”

A Little Forgotten History


In thinking about how we got to the point where the Senate may need to act to eliminate judicial filibusters, it’s worth remembering a little history from the beginning of this administration.

Four years ago this past Monday, on May 9, 2001, President Bush held an event in the East Room to introduce to the country and to the Senate his first 11 nominees to the federal bench. He invited leaders from both parties. I distinctly remember seeing Senator Leahy–then chairman of the Judiciary Committee–in the room. There were a record number of judicial vacancies, including numerous judicial emergencies designated by the non-partisan Administrative Office of the U.S. courts, and President Bush had moved with record speed to get a slate of nominees up to the Senate.

The president presented a slate of well-qualified, mainstream nominees. The slate was racially diverse. It included a mix of men and women. And, perhaps most importantly, it included both Republicans and Democrats. People forget this, but two of the original eleven were judges originally nominated by President Clinton: Roger Gregory and Barrington Parker. In the case of Judge Gregory, it was the first time in history that a president had re-nominated a failed circuit-court nominee originally nominated by his predecessor from the other political party. This was unprecedented and highly significant, and it was intended to send a message. It was an olive branch. The president highlighted it in his speech that day, asking the Senate to move beyond the bitterness of the past in the judicial wars and to start afresh in a spirit of cooperation and good faith.

The Democrats took the olive branch the president extended and slapped him in the face with it. They immediately held hearings for, and confirmed, the two Democrats among the nominees and then held up the rest, refusing even to hold hearings for a long time on most of them. They then complained incessantly (and, for the most part, falsely) about not having been adequately consulted by the White House with regard to these nominations. And they executed the play suggested by Professor Tribe, Marcia Greenberger, and others at a Democratic strategy session on how to block Bush judicial nominations–a session held before the president had even taken office–when they scheduled hearings under Senator Schumer to try to legitimize the notion that judicial nominations could be blocked on ideological, rather than competence grounds.

This sent the strongest possible message to those of us in the White House that there was no interest at all in cooperation or good faith from the Democratic side and that they were determined from the start to try to frustrate the new president’s efforts to fill judicial vacancies. The Democrats were alarmed that the president had begun by focusing on appellate appointments; that those appointments were concentrated in circuits where the partisan balance was close; and that the president appeared determined to appoint highly qualified minorities and women, such as Miguel Estrada and Priscilla Owen.

The president tried to change the tone, but he was shouted down. This is where the genesis of the conflict that has led us to the brink of the nuclear option really began, at least in this administration. When the Democrats later lost the Senate, they simply shifted tactics, using the filibuster to accomplish what they could no longer use control of the Judiciary Committee to do.

The ultimate proof that the Democrats escalated this conflict beyond all reasonable or defensible proportions is this: Today, more than four years after the East Room event, three of the original eleven nominees still have never received an up-or-down confirmation vote in the Senate.

Reid’s Smear


It Takes a Strong Man


to admit mistakes: Our Andy McCarthy admits he was wrong on filibusters.

Owen Dishonesty


The Texas Attorney General, Greg Abbott:

Almost 1,500 days have passed since President Bush announced his first eleven judicial nominees, an exceptionally diverse slate of qualified candidates that even the New York Times said was “notable for its inclusion of women and minorities.” Since that May 9, 2001, day, America has endured a terrorist attack, bestowed iconic status on a gizmo called the iPod, produced eleven of Hollywood’s top-20 all-time blockbusters, and birthed democracy in two long-oppressed regimes.

But one thing has persisted: Senate Democrats’ bare-fisted attacks on Texas supreme court justice Priscilla Owen. Justice Owen’s resume is impeccable: top of her law-school class (completing undergraduate and law school in just over five years); highest score statewide on the bar exam; ten years on the Texas Supreme Court; reelected in 2000 with 84 percent of the vote and the endorsement of every major Texas newspaper; and the highest rating possible — a unanimous “well qualified” — from the American Bar Association (no conservative bastion), which Democrats once hailed as “the gold standard.”

Read his whole piece here.

Onward FMA


Stanley Kurtz says Eugene Volokh is being naïve on the Nebraska same-sex-marriage ruling.

The Democratic Filibuster Fraud


You’ll want to read Charles Krauthammer today:

Two hundred years of tradition has been radically and unilaterally changed by the minority. Why? The reason is obvious. Democrats have not had a very good run recently in the popularly elected branches. Since choosing the wrong side of the culture wars of the 1960s, they have won only three of the past 10 presidential elections. A decade ago they lost control of the House for the first time in 40 years, and now have lost all the elected branches. They are in a panic that they will lose their one remaining ability to legislate — through the courts.

Going “nuclear,” he says, is simply “restoration.”

It Will Be Reversed


Here’s Eugene Volokh on the Nebraska decision.

Re: The Filibuster & Partisan Retrenchment


Richard, I agree with you. But isn’t the main problem with Balkinization that it doesn’t actually believe in republican democracy?

If Prof. Balkin believes the Democrats have too little power given their purported public support (a systemic critique that, not surprisingly, was unheard when President Clinton won the presidency with 42 percent of the vote and enjoyed majorities in both houses of Congress in 1992), doesn’t that mean he simply doesn’t accept the majority-rule outcomes of our system? How can it be, moreover, that the propriety vel non of a strategy like the filibuster hinges on the degree to which a party is unsuccessful in convincing the country of the rightness of its policy positions? “The worse we do the better we deserve to do” — makes the filibuster sound like affirmative action for underachieving social engineers.

It’s Just My Opinion


that the reasoning in today’s Washington Post editorial is very weak. Wagging its finger at House Judiciary chairman James Sensenbrenner for his remarks on Monday at Stanford University, the Post has this to say on the option of impeaching judges, which Sensenbrenner steered clear of: “Judicial independence has no meaning if Congress reserves the right to remove judges from the bench when it disagrees with their opinions.” Well now. I agree with NR’s view in its editorial in the May 9 issue that impeachment is practically useless today because there are simply too many “bad apples”: where would one start, and where would one stop? But the Post effectively takes the position, “What’s the Constitution between friends?” There’s your opinion, there’s my opinion, and there’s the Court’s opinion of what the Constitution means. So what’s to worry about? You wouldn’t retaliate against those poor helpless judges just because of what they think, would you?

This won’t do. The reason there is so much attention paid to the judiciary today–the reason a new blog like this one is such a good idea–is that the effects of judicial supremacy over the interpretation of the Constitution have become so obviously disastrous for the Republic. A judicial opinion is far more than the “opinion” anyone else might have: it is the giving of reasons for a decision on the practical meaning of the Constitution, and in the usual dispensation nowadays (embraced every other day by the Post), if that opinion is announced by the Supreme Court, it is itself an authoritative statement of the law of the land, as good as the Constitution itself at all times and places, until and unless the Court itself changes its mind.

The Post appears committed to two ideas that are rationally incompatible but nevertheless have been historic bedfellows: judicial supremacy and the “living Constitution.” The first holds that the final and ultimate arbiter of all questions regarding the meaning of the Constitution is the U.S. Supreme Court. The second holds that the Constitution has no fixed meaning of its own, from which it follows that there are no correct and incorrect interpretations of it–only “progressive” and “reactionary” meanings to be struggled over by contending political forces seeking authoritative control of public policy. A softer, more “postmodern” version of this second idea is that the Constitution is radically indeterminate in its meaning, capable of accommodating just about any “creative” opinion about its interpretation.

How anyone attached to republicanism could hold both these thoughts together is a fair question. The Post avoids the difficulty by suppressing (just for today) its usual support of judicial supremacy, in order to advance the view that all kinds of “opinions” about the meaning of the Constitution ought to be treated with the utmost tolerance. But if we remember that contemporary orthodoxy says the rest of us have to live, like it or not, with whatever the Supreme Court says the Constitution means, and if we believe (what the Post implicitly denies) that it matters whether the Court gets it right or gets it wrong, we can think more clearly about these matters than the Washington Post.

Stray Thought


On Judge Bataillon’s theory, don’t opponents of same-sex marriage in Massachusetts have a federal case? The Massachusetts court infringed on their “associational political rights,” or whatever he calls this judicial invention, by forcing them to pass a constitutional amendment, rather than persuade the legislature, to see their views prevail.


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