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Bench Memos

NRO’s home for judicial news and analysis.

A Minor Correction



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Just a quick correction to my Friday posting in the interest of complete accuracy: Senator Leahy was still a few weeks away from being Chairman on the day of the May 9, 2001 event, because Sen. Jeffords had not yet defected. But the substantive point is the same, because Sen. Leahy had become Chairman by the time the process of holding hearings started. The Senate switched hands shortly after the May 9 event.

Confirmation And Judicial Philosophy



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Thanks to Ramesh for his important correction of the media’s misrepresentation of Ken Starr’s views on filibuster reform. But I think that Mr. Starr’s stated view that senators should not “invok[e] judicial philosophy as a grounds for voting against a qualified nominee of integrity and experience” merits exploration. As a great admirer of Mr. Starr, I am in the uncomfortable position of finding myself in disagreement with him.

Let’s take Mr. Starr’s specific position that Senate Republicans rightly voted to confirm Justice Ginsburg and that it would have been wrong to vote against her based on her judicial philosophy. I am not going to dispute here that it was an acceptable course of conduct for Republicans, in an exercise of deference to the President, to confirm Justice Ginsburg. But I do want to suggest why I think that it would have been proper to vote against her based on her “judicial philosophy”.

There are lots of illegitimate judicial philosophies. One hypothetical nominee might believe, as a matter of “philosophy,” that the petitioner should always lose. Another might believe that the poorer party should always win. And still others, like Justice Ginsburg and other proponents of the phony “living Constitution,” might believe that the Constitution means whatever their moral and political intuitions tell them advances the cause of human progress. Surely everyone would agree that anyone who adheres to either of the first two views should not be confirmed. I likewise believe it proper (and perhaps compulsory, but I’ve promised to set aside that point now) for Senators to vote against anyone adhering to the Ginsburg view, which I believe is manifestly incompatible with the core tenets of our constitutional republic. (For a fuller explanation of my views, see my recent NRO essays here and here.)

The only justification that I can see for the view that senators shouldn’t look to judicial philosophy would be a practical one, premised on a judgment that senators can’t be trusted to distinguish legitimate judicial methodologies from illegitimate ones. The irresponsible attacks of Senate Democrats on President Bush’s judicial nominees obviously provide substantial support for such a judgment.

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frist is ready to roll



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Senator Frist issued the following statement today regarding the pending battle over the filibuster:


Upon completion of action on the pending highway bill, the Senate will begin debate on fair up or down votes on judicial nominations. As is the regular order, the Leader will move to act on judge nominations sent to the full Senate by the Judiciary Committee in the past several weeks. Priscilla Owen, to serve as a judge for the 5th Circuit Court of Appeals, and Janice Rogers Brown, to serve as a judge for the 9th Circuit Court of Appeals, will be the nominees of focus.

The Majority Leader will continue to discuss an appropriate resolution of the need for fair up or down votes with the Minority Leader. If they can not find a way for the Senate to decide on fair up or down votes on judicial nominations, the Majority Leader will seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees. After the ruling, he will ensure that every Senator has the opportunity to decide whether to restore the 214-year practice of fair up or down votes on judicial nominees; or, to enshrine a new veto by filibuster that both denies all Senators the opportunity to advise and consent and fundamentally disturbs the separation of powers between the branches.

There will be a full and vigorous Senate floor debate that is too important for parliamentary tactics to speed it up or slow it down until all members who wish have had their say. All members are encouraged to ensure that rhetoric in this debate follows the rules, and best traditions, of the Senate.

It is time for 100 Senators to decide the issue of fair up or down votes for judicial nominees after over two years of unprecedented obstructionism. The Minority has made public threats that much of the Senate’s work will be shut down. Such threats are unfortunate.

The Majority Leader has proposed his Fairness Rule: up to 100 hours of debate, and then an up or down vote on circuit and Supreme Court nominations. Further, the Fairness Rule would eliminate the opportunity for blockade of such nominees at the Judiciary Committee. And finally, it will make no changes to the legislative filibuster.

If Senators believe a nominee is qualified, they should have the opportunity to vote for her. If they believe she is unqualified, they should have the opportunity to vote against her.

Members must decide if their legacy to the Senate is to eliminate the filibuster’s barrier to the Constitutional responsibility of all Senators to advise and consent with fair, up or down votes.


I Respectfully Dissent



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from the argument made today by my Brother McCarthy. (Remember when Supreme Court justices referred to each other that way? They gave it up long ago, even before abandoning “Mr. Justice” on the eve of Sandra Day O’Connor’s joining the Court. Why they couldn’t use “Sister” and “Madam Justice” when the ladies joined them I’ll never know.)

The current abuse of the filibuster against judicial nominees is a Bad Thing indeed–and it may be appropriate for the majority to put a decisive stop to it with the so-called “nuclear” ruling from the chair–but I cannot regard it as unconstitutional. Andy introduces a parade of horribles under the Senate’s power to make its own rules–that it might adopt a rule to consider presidential nominations only every other year, for instance. But as John Marshall said long ago, “arguments drawn against the existence of a power from its supposed abuse are illogical, and generally lead to unsound conclusions.” The Senate might indeed do any of the things Andy supposes, but I have difficulty seeing any of them as unconstitutional either. Stupid, yes, even politically suicidal; unconstitutional, no.

Contra Andy, there is no intrusion by the Senate on the powers of the president here. The power of naming judges to the federal bench is jointly but not equally held by the president and the Senate, and if the Senate adopts a rule making it extremely difficult to do its part in the process, that is no injury to the president’s prerogatives.

Andy is right that all the arguments but one about the filibuster are “mostly makeweight.” The free speech of dissenters, the promotion of deliberation–these are all hogwash, as he points out. But that one argument for the legitimacy of the filibuster–not for its use in any given instance–is quite good enough: Article I, section 5’s power of each house to “determine the Rules of its Proceedings.” Without getting into the dicier question of what violates the “spirit” of the Constitution, where the “letter” is concerned the decisive argument for the filibuster’s constitutionality is simply that the Senate can do it, and no other institution can gainsay it.

An argument as good or better can be made that the president’s recess appointments of judges are violations of the “spirit” of the Constitution. The clause under which they were made almost certainly did not contemplate the very short recesses and adjournments of the modern Congress, and the intent of this presidential power was surely not to enable presidents to circumvent the advice and consent power of the Senate. But presidents can do it, and have done it, and none can gainsay it. And that, it seems to me, is how a constitution ought to work–each branch with its own undisputed powers, and with ample opportunities to mess with the other branches’ business.

Nobody Puts Baby in a Corner!



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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….


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Re: McCarthy on the Filibuster



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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



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McCarthy on the Filibuster



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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



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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



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

Kyl on the P.R. Battle



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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 Radioblogger.com.

The Judicial Balance



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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



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

Specter Still Seeking Deal



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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



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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



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It Takes a Strong Man



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

Owen Dishonesty



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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



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

The Democratic Filibuster Fraud



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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.”

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