May 14, 2005
Sum-Up
[Sean Rushton 05/14 08:42 PM]
FYI, Committee for Justice’s Boyden Gray has a good overview of the judicial confirmation spin wars in Human Events.
Re: Revising the Senate Filibuster Rules
[Edward Whelan 05/14 07:48 PM]
Andy asks whether the Post is correct in suggesting that filibuster reform depends on a determination that the existing filibuster rule is unconstitutional. The Post is clearly not correct.
From what I can tell, there are three or four people who fully understand the intricacies of changing the Senate rules, and I’m certainly not one of them. But Marty Gold is. Based on a discussion I had with him, here’s my understanding:
1. The Senate has plenary power under the Constitution to change its rules at any time. As a constitutional matter, that power can be exercised by a majority of Senators present and constituting a quorum. One traditional means of modifying the Standing Rules of the Senate is for the majority to override the presiding officer's application of the existing rules. Such override doesn’t mean that the presiding officer was wrong. It means, rather, that the Senate is exercising its plenary power to change the existing rules. In parliamentarian language, the Senate establishes a “precedent” that departs from the Standing Rules. That “precedent” governs Senate proceedings on a going-forward basis.
2. It is crystal-clear that reforming the filibuster does not depend on a determination that the existing filibuster rule is unconstitutional. The Senate has revised its filibuster rule numerous times.
3. As I understand it, the particular procedure that would unfold would involve a determination by the vice president, as president of the Senate, or by the president pro tem or other presiding officer whether the existing filibuster rule applies to judicial nominations. If the initial determination is that the rule does apply, a majority of senators could then vote to override this determination and establish a precedent that the Standing Rule does not apply to judicial nominations. (In the event of a tie, the VP would break the tie, so the votes of 50 Senators are needed.) If the initial determination is that the rule does not apply, a majority of senators would be needed to override this determination and retain the filibuster. Again, this parliamentarian jargon should not obscure that what would really happen is a simple exercise of the Senate’s constitutional authority to revise its rules. So, as I understand it, there would be nothing improper in the vice president’s determining as an initial matter that the existing filibuster rule does not apply to judicial nominations (even though the Standing Rule plainly does). Such a determination would merely be part of the mechanism for changing the rule.
(I have not run the above written explanation by Marty Gold, and any error in it is mine alone.)
There’s a minor side issue as to whether the Senate can formally revise its Standing Rules at any time (as opposed to establishing precedents that effectively depart from the Standing Rules). My own understanding of the Senate’s constitutional power leads me to the conclusion that the Senate can do so, but I’ve heard others express a contrary view (the basis of which I'm unclear on). In practice, nothing turns on this.
Re: Bring Back Blue Slips?
[Andy McCarthy 05/14 07:46 PM]
I'm also interested in what people's views are on the subject Jon has reintroduced. I got a good education on it last week, courtesy of Jon
and others, and didn't like what I learned.
I also wonder whether -- given how the Internet has made the work of individual lawyers and judges so readily accessible in modern times -- it really makes sense anymore to presume that senators have special insight regarding the legal community in their states. Certainly, they have special insight into the party politics of their states. But if judge selection should be more about merit and less about patronage, that would seem to argue pretty strongly against blue slips.
The Filibuster Debate
[Andy McCarthy 05/14 07:40 PM]
I thank Brothers Franck, Whelan, and Levin for their thoughtful consideration of my article.
I should say preliminarily that I have been gratified by the tone of the reaction, particularly from people who disagree. I was braced for a lot of “you sounded pretty sure of yourself when you were making the argument you now tell us was wrong …” I’d certainly have had that coming. But readers on both sides of this have been very gracious.
Matt and Ed, who disagree with me, get to the heart of the matter, and resolve it the way I used to, so I’m loath to rebut. Nonetheless, I think we part company in some important places.
I agree with the principle that constitutional perfectionism is to be avoided. Provisions of law should not be deemed problematic absent realistic--and better yet, actual--instances of abuse. Here, though, we confront a situation in which the abuse of a power is not merely “supposed” (to borrow Chief Justice Marshall’s phrase cited by Matt) but quite real. For me, this detracts from Ed’s observation about my seemingly absurd example. (I note that until 2001, imagining a filibuster of judicial nominees would probably have qualified as an absurd example; now it’s reality.) It also undercuts Matt’s reliance on Marshall.
That said, there is definite appeal in my two colleagues’ suggestion that disputes over whether powers have been abused should be resolved by the political process rather than by holding them ultra vires. Indeed, much of the objection to the purported “organic” constitution (which I think Ed, Matt, and I share) lies in the principle that where the Constitution is silent, democratic solutions are the rule of the road.
Alas, in ways germane to the present question, that is not the world we inhabit--and I don’t see us ever going back to a time that was either pre-Marbury (as I understood it) or pre-Cooper v. Aaron as Ed puts it. (I certainly defer to Ed on that.) I take it as a given that the Supreme Court has the power to strike down a statute as beyond the power of Congress. I take it as a given that the Supreme Court, in particular, has the power to void an act of Congress which attempts to seize the Court’s authority to interpret the law dispositively. In such instances, we do not wait for the political process to work itself out--for the public to rise up and vote the runaway congress out the door. The acts are declared unconstitutional.
In this instance, to the contrary, we are dealing with a constitutional power of the president rather than the court. That should not matter--they are peers and their constitutional powers of equal weight for purposes of this analysis. We are also dealing with a species of regulation--viz., a senate rule--that is plainly inferior to a statute in the deference it merits. Given that the Supreme Court does not hesitate to invalidate a statute as unconstitutional if upholding it would nullify a constitutional power of the court, how can a mere senate rule be permitted to nullify a constitutional power of the president? (Matt and I simply disagree here about whether the filibuster intrudes on the president’s power. The senate has a proper way to check the president’s prerogatives: it can vote “no.” But I believe it has a duty to vote.)
It seems to me that there is an important difference between the pedigree of the Senate’s power to prescribe its own rules and the pedigree of any particular rule prescribed. It is the prescriptive power that is of constitutional dimension. The resulting rules are not. Congress, analogously, has the constitutional power to prescribe rules (laws) for the conduct of interstate commerce. The rules so prescribed are not themselves extensions of the constitution. They are just statutes. If, pursuant to the constitutional power, congress were to prescribe a rule (or statute) that purported to nullify the courts’ power to determine the constitutionality of commerce laws, that rule would be stricken. It would not be saved simply because the power that enabled congress to enact the rule is indisputably enumerated in the constitution. I believe the same principles should hold true in the confrontation between a senate rule and the president’s constitutional power.
Finally, I don’t think Matt’s analogy to recess appointments works. Even if Matt is right that the recess appointment does not today work as it was contemplated, the fact remains that it is explicitly provided for by the Constitution (Art. II, Sec. 2, cl. 3)--we don’t need to derive it from some other express grant. In contrast, the filibuster is not an express power--it must be derived. It does not have the force of constitutional law. And I was not dealing with anything so amorphous as the “spirit of the constitution.” I am talking about the appointments clause--an enumerated power of the executive.
NRDC Goes Anti-Nuke
[Jonathan Adler 05/14 07:34 PM]
Environmental activists have always been anti-nuclear power, so perhaps it's no surprise that they're mobilizing against the "nuclear option." The latest is the Natural Resource Defense Council's effort to "protect our environment from activist judges!" According to their latest missive, blocking Bush's judicial picks is actually about the environment.
"Losing the right to filibuster means that President Bush would gain unchallenged power to grant lifetime tenure to judges who could do permanent damage to wilderness, wildlife and the health of millions of Americans currently protected by strict enforcement of environmental laws."
The NRDC Action Fund has set up
this page to allow activists to send e-mails and faxes to home state Senators opposing elimination of the filibuster (although it appears that users can customize the e-mail message however they please).
News Roundup
[Jonathan Adler 05/14 07:33 PM]
You can find How Appealing's round-up of the Saturday judicial confirmation news stories here.
More on Starr's Views
[Jonathan Adler 05/14 07:32 PM]
Orin Kerr has a bit more on Starr's actual views about judicial confirmations and the filibuster here.
Re: Does It Matter If the Judicial Filibuster Is Unconstitutional?
[Matthew J. Franck 05/14 07:30 PM]
I'm glad to see Andy McCarthy reject the option of going to court over the constitutionality of the filibuster. (Whose injury would be alleged in a lawsuit, anyhow?) Some constitutional questions really are political ones, not judicial ones.
Now Andy raises the very interesting question, do 51 senators have to hold a good-faith belief in the unconstitutionality of filibustering judicial nominations in order to vote in favor of a "nuclear" ruling from the chair by Vice President Cheney that such filibusters are disallowed under Senate rules? My answer is, not exactly.
It's true that the Senate's rules call for 67 votes to change the rules (a rule that itself could be rejected by simple majority when each new Congress begins--but that's another argument), while only 51 votes are needed to support the presiding officer's interpretation and application of the rules, however much that application appears to break new ground or reverse an ongoing practice. But I don't see why the vice president has to state flatly that he regards the judicial filibuster as unconstitutional (which I have argued it isn't). He need only rule from the chair that such filibusters are improper, an abuse of an otherwise acceptable practice, an unconscionable frustration of the Senate's proper business, and a break with the historic tradition of giving judicial nominees an up or down vote of the full Senate. Hence they are disallowed under the rules of the chamber.
This would not only have the considerable virtue of according with my interpretation of the Constitution. It would be smart politics, enabling GOP senators who have their own doubts about the constitutional issue to sign on to a vote in support of the chair on much softer, more comfortable grounds that more of them can support.
Orson Scott Card on Filibusters
[Jonathan Adler 05/14 11:32 AM]
Famed sci-fi author Orson Scott Card blogs this essay on the judicial filibuster. His conclusion: Ending the filibuster would be courageous, but not necessarily prudent.
On the Nebraska Decision
[Gerard V. Bradley 05/14 11:21 AM]
Even a stopped clock twice a day tells the correct time. Thursday's Nebraska decision is so poorly reasoned that one wonders if it is all tongue-in-cheek. Forty-three turgid, confused pages in support of two legal conclusions, one more improbable than the other. The result nonetheless follows from Lawrence v. Texas, and owes more than a little to faulty draftsmanship in a good cause.
The court concluded that Nebraska's DOMA was actually a Bill of Attainder. Yes, that Bill of Attainder, the one which you naively thought referred to legislative judgments of guilt without benefit of judicial proceedings. Now we are invited to concur that it covers a constitutional provision which denies unmarried couples the benefits of marriage. The court's reasoning in support here is disastrous, almost obviously insincere. Mercifully, it's just a few pages at the end.
The court's reasoning in support of the Romer conclusion is much more involved. Unfortunately, it never quite achieves relevance. It is entirely question-begging. It depends upon some normative--that is, federal constitutional--distinction between legislative and constitutional politics which the court never supplies. This conclusion depends, in other words, entirely upon a missing account of which norms may be enacted by legislators but never by those (e.g., the people) who make constitutions. For myself, I cannot imagine what such an account would look like. Neither, Thursday's decision suggests, can Judge Bataillon.
To the extent there is any force to this part of the opinion, it is supplied by the assertion that there is no rational basis at all to this political outcome, that it rests upon mere animus towards a particular group. The targeted group is, evidently, comprised of homosexuals. But the force is particularly weak here because the Nebraska plaintiffs are not same-sex couples at all. The plaintiffs are political outfits such as ACLU Nebraska. Besides, the Nebraska law does not actually use the words "homosexual," "lesbian," or "sexual orientation."
Unfortunately, the law was poorly written and, assuming (as the court has to assume) that Lawrence is good law, Judge Bataillon nonetheless landed in the right spot.
Here is what the relevant part of the challenged law says:
The uniting of two persons of the same-sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.
There is an ambiguity here, one which the Nebraska court sophistically exploited in supports of its misplaced legal conclusions. The court did not see that the quick route to its desired conclusion runs right through the ambiguity. And the route is a very short one.
Reading one: The law does not refer exclusively to same-sex relationships involving sexual conduct between the two parties. The law on this reading includes homosexual and lesbian couples but is not limited to them. The law includes other "same-sex couples," such as Felix and Oscar (The Odd Couple), spinster sisters, grandma raising a foster girl child of 16. On this reading, the law is not targeted specifically at homosexuals, and so it would seem to escape condemnation under Romer. On this reading, however, the law utterly lacks a rational basis. It would prohibit extension of a legal benefit to, say, Felix and Oscar (they are members of the same sex) but it would allow extension of the exact same benefit to, say, Will and Grace. No benefits to spinster sisters, but benefits to an elderly brother and his sister living right next door and otherwise indistinguishable from the spinsters. No benefit to grandma raising her foster girl child of 16, but the same benefit to her neighbor raising a 16 year-old boy. And so on.
Reading two: The law does refer exclusively to same-sex sexual relationships. It does not refer to Felix and Oscar or to spinster aunts living out their days together under one roof. It obviously cannot refer to any married couple (for marriage is reserved to union of man and woman). But, on this reading, the law distinguishes between unmarried same-sex sexually involved couples, and unmarried opposite-sex sexually involved couples. On this reading the Nebraska constitution allows no benefits to the former, but permits the latter to receive whatever the legislature is in a mood to bestow. As far as I can tell, Lawrence forbids just such a distinction.
The Nebraska court stumbled upon a legally defensible outcome. But it is still a perfect example of a) judicial activism in support of a radical agenda, and b) the need for laws which stipulate that no benefits traditionally reserved to married couples be extended to any couple or group--straight or gay--predicated upon the presence or assumption of non-marital sexual acts or relationship.
Whelan's Example
[Mark R. Levin 05/14 11:09 AM]
The commander-in-chief example is, I think, much closer to the Franck point about a joint power. There is no military for a president to command but for Congress creating it and funding it. And the Constitution contemplates an affirmative role for Congress -- its declaration of war power.
Does It Matter If the Judicial Filibuster Is Unconstitutional?
[Andy McCarthy 05/14 11:05 AM]
On our side, based on what I’ve read, the way the mail has gone, and the lively discussion we’ve been having in Bench Memos, there seems to be consensus that filibustering judicial nominees is a terrible policy, and deep division over whether it is unconstitutional (some are convinced one way or the other, the rest seem skeptical but uncertain). So the question becomes, does it matter?
Some readers ask: If it’s unconstitutional, do we go to court? I vote no on that one. A constitutional tug-of-war of this kind between the executive and the legislature is a political question that the courts should stay out of. I’d rather lose in the arena of public opinion than take the position that the judiciary is not a peer of the other branches but an authority that instructs them how to resolve their squabbles. If the ultimate object here is to appoint judges who respect the American people’s democratic choices, it would seem perverse to try to secure that aim by empowering the courts as lords over the political branches.
My target is much more narrow and, I hope, practical. I would be very interested in my learned colleagues’ views on it, though. There’s been plenty of discussion about whether the senate should change its rules. But oft-overlooked, it seems to me, is the procedure for changing the rules. This is why I have thought the question of constitutionality is highly significant. Here is how the Washington Post described the situation last year:
Changes to Senate rules usually require up to 67 votes if they are especially controversial. But there is one approach--called the "nuclear option" because of its explosive potential--that would require only 51 votes. Republicans could employ it at almost any time after the new Congress convenes in January.
Under this rarely used procedure, the Senate's presiding officer, presumably Vice President Cheney, would find that a supermajority to end filibusters is unconstitutional for judicial nominees. Democrats would undoubtedly challenge this ruling. But it takes only a simple majority--or 51 votes from the Senate GOP's new 55-vote majority--to sustain a ruling of the chair. [Emphasis supplied.]
I am no expert in senate procedures, and have been operating under the assumption that the Post has accurately described the state of play. If it has, doesn’t that make the constitutionality issue crucial?
Of course we all want good judges appointed, and if it’s necessary to change the rules to do that we must seriously consider changing the rules. But we’re also committed to the rule of law. I certainly don’t want the Vice President to make a finding that the filibuster is unconstitutional in this context unless there is a good faith argument that it is--and thus I have tried to construct such an argument. Like the rest of us, I would rather lose with my head held high than win by chicanery.
Which brings me again to Ed’s earlier post, which raises some very interesting and important issues. Are we (am I?) operating on an accurate understanding of the procedure and predicate finding of unconstitutionality necessary for a rule change? And if the Senate’s stated interpretation of its standards for changing rules is wrong, is there any realistic prospect of reconsidering that interpretation? In short, (a) is it true that 51 senators should be able to change the rule without finding that filibusters in this context violate the constitution, and (b) if it is true, is it currently politically possible for 51 senators to do so?
Andy, Et Al
[Mark R. Levin 05/14 10:59 AM]
I am among a few who aren't great fans of John Marshall, so I won't quote him here. I know some of my friends view Marbury as a decision limited to the case before the Court, but its main critics at the time, including Thomas Jefferson, saw it as much more, as do I. Lincoln tried to limit its impact in his response to Dred Scott (including in his first inauguration speech), which is certainly understandable as a political matter, but that's an argument for another day.
But, respectfully, the argument that the Senate making judicial confirmation more difficult is "no injury to the president's prerogatives" doesn't work for me. Of course, the president's ability to nominate is unaffected, but given that the purpose of the nomination process is to achieve confirmation, the filibuster clearly injures the president's appointment power.
Moreover, advice and consent is an authority granted to the Senate. As I've contended before, the filibuster rule, when used against judicial nominees, denies the full Senate its advice and consent role (unlike blue-slipping or a committee voting down a nominee, where the full Senate can call up the nominee for a vote in any event). The rule, as used today by the Senate minority, is inherently unconstitutional as it blocks the full Senate from exercising its advice and consent role. And so, a rule change, as contemplated, fixes it. (And, yes, I have a similar problem with non-judicial nominees.)
Clearly the Senate is authorized to set its own rules, but there's a difference between setting internal rules as apply to its legislative function, for which filibusters have been used up until now (albeit even limited in these circumstances as Andy points out), and setting rules that limit the Executive's role in appointing officials to the third branch of government.
And perhaps I'm being too critical, but there is no joint power to appoint judges. The Senate's role was intended to be, and up until now has largely been, deferential (if not passive) to the president's nomination power. As recently as 40 years ago, if hearings were held for nominees to the Supreme Court, they were mere formalities. For most of our history, confirmation occurred without any hearings at all. Obviously the Senate is not required to confirm all judicial nominees. And from our beginning, it rejected several of Washington's Supreme Court nominees. Still, there is no joint power. The Senate can nullify.
I Join Brother Franck
[Edward Whelan 05/14 10:56 AM]
I abide by Andy McCarthy’s original view that the filibuster rule is constitutional. I’ll add just a few observations to what Matthew Franck has said.
Andy’s example of a Senate rule enabling consideration of presidential appointees only in even-numbered years is, I think, ultimately an appeal to what I will label the fallacy of constitutional perfectionism--namely, the view that if something really bad or abusive might happen, it must be unconstitutional. Generally, a full answer to such examples is that the political process that the Constitution allows will provide the means to correct the abuse. On his example, if the Senate’s action were in fact to be regarded as irresponsible, the populace could put heat on the Senators, and the Senate could quickly change the rule. The key here, of course, is recognizing that the Senate’s plenary power to determine its rules may be exercised at any time by a majority of the senators--or, more precisely, by a majority of a mere quorum. In other words, the Senate may not bind itself even for a single session (or a single week). That also explains why the Senate rule purporting to require a 2/3 vote on cloture for a change to the rules is unconstitutional--and why the Senate can (and in my view should) eliminate the filibuster for judicial nominees.
I also question whether the line Andy draws between those matters where the Senate would have the right to filibuster and those where it wouldn’t can be maintained. Assume, for example, a filibuster of a DOD appropriations bill. That could severely impair the president’s commander-in-chief authority. Which side of the line would it fall on?
One smaller sidepoint: I believe that it was only in Cooper v. Aaron in 1958 that the Court first asserted its preeminence in interpreting the Constitution. The Left has tried to reread Marbury that way, but Marbury stands for the far more limited proposition that the Court may determine the constitutionality of laws in cases that come before it.
Bring Back Blue Slips?
[Jonathan Adler 05/14 10:54 AM]
I'd be curious what some of the other Bench-posters think of an idea I floated on The Corner a little while back. Basically the idea was to add one element to Frist's "compromise" proposal: A pledge to respect blue slips from Democratic senators. As I explained here and here, it seems that the one "fairness" argument Democrats have in the judicial nomination fight is that the Republican majority eliminated the ability of home-state senators to block/influence appellate nominations from their states. I should add that I don't like the blue slip, and preferred proposals to ensure all nominations get voted upon in the future, but it seemed like a reasonable proposal that would address and substantive complaints Democrats might have about changes in the traditional way of handling judicial nominations -- and eliminate any argument that the judicial filibuster is justified to make up for those changes.
A Minor Correction
[Bradford Berenson 05/14 10:52 AM]
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
[Edward Whelan 05/14 10:49 AM]
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.
May 13, 2005
frist is ready to roll
[Shannen Coffin 05/13 03:06 PM]
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
[Matthew J. Franck 05/13 01:45 PM]
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!
[Kathryn Jean Lopez 05/13 01:31 PM]
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
[Andrew C. McCarthy 05/13 01:10 PM]
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.
McCarthy on the Filibuster
[Ramesh Ponnuru 05/13 12:46 PM]
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
[Ramesh Ponnuru 05/13 12:42 PM]
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
[Kathryn Jean Lopez 05/13 11:20 AM]
The time for a vote is now--we have a new editorial up saying as much.
Kyl on the P.R. Battle
[Jonathan Adler 05/13 09:30 AM]
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
[Jonathan Adler 05/13 09:23 AM]
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
[Jonathan Adler 05/13 09:20 AM]
The News & Observer on the latest delay in Judge Terrence Boyle's bid for confirmation to the Fourth Circuit.
Specter Still Seeking Deal
[Jonathan Adler 05/13 09:15 AM]
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
[Bradford A. Berenson 05/13 09:11 AM]
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.
Owen Dishonesty
[Kathryn Jean Lopez 05/13 08:32 AM]
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
[Kathryn Jean Lopez 05/13 08:23 AM]
Stanley Kurtz says Eugene Volokh is being naïve on the Nebraska same-sex-marriage ruling.
The Democratic Filibuster Fraud
[Kathryn Jean Lopez 05/13 07:32 AM]
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
[Kathryn Jean Lopez 05/13 12:37 AM]
Here's Eugene Volokh on the Nebraska decision.
Re: The Filibuster & Partisan Retrenchment
[Andy McCarthy 05/13 12:31 AM]
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.
May 12, 2005
It's Just My Opinion
[Matthew J. Franck 05/12 06:49 PM]
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
[Ramesh Ponnuru 05/12 06:41 PM]
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.
The Filibuster and "Partisan Retrenchment"
[Richard Garnett 05/12 05:46 PM]
Professor Jack Balkin of the Yale Law School is a prominent and important constitutional law scholar. And, he runs a blog, "Balkinization," where his latest post explains, from his perspective, "what is at stake in the nuclear option". He writes: "[T]he controversy is about more than whether these seven individuals become federal judges. It is about the relative power of the two parties going forward and about the likely content of constitutional law in the next generation. Both of these things are eminently worth fighting about."
In particular, Balkin contends that--because the Republicans "currently hold all three branches of government", and have won the "constitutional trifecta"--the filibuster is the only tool available to Democrats (who, Balkin insists, have "too little" power "given their public support") hoping to derail President Bush's efforts at "partisan retrenchment." This is a strategy in which "a determined President stocks the life-tenured federal courts with ideological allies. Through this strategy (1) the President can alter the positive law of the Constitution by tipping the working majority on the Court in the direction of his ideological allies; (2) the President can assure a more friendly federal bench that will cooperate with and support his legislative and policy initiatives; and (3) the President can install his ideological allies in life tenured positions where they will continue to have influence long after the President has retired and his Party has lost power in the political branches."
Professor Balkin is right about this: It really does matter who ends up sitting on the federal courts, because--given the extent to which we have "constitutionalized" nearly every important policy and moral debate--the views and premises of today's nominees will likely shape our law and society well after the President who nominated them has left the political scene.
Professor Balkin is wrong, though, to frame as some kind of ominous power-grab the utterly unremarkable efforts of a reelected Republican president to appoint judges who appear likely to interpret the Constitution in a way that coheres with that president's understanding of the rule of law, the role of the judiciary, and the structure of our federal system. To the extent the "partisan retrenchment" theory is helpful, it cannot apply only when one disapproves of the president and his "ideological allies."
Re: Getting to the Merits
[Ramesh Ponnuru 05/12 05:43 PM]
I wouldn't get carried away, Rick, about the way "most people" think "about the role of courts, the rule of law, and the structure of the Constitution." Most people don't think much about these topics. There are ways to describe conservative legal positions that will command majority assent; there are ways to describe liberal legal positions that will also command majority assent. That said, I do agree that we would be better served by arguing about the superiority of conservatives' underlying view of judicial power and the Constitution to liberals' view of the same than by arguing about procedural matters, the deference that Congress allegedly owes to the president's nominees, the alleged impermissibility of considering "ideology" in judicial confirmation, etc.
Brown and Originalism
[Ramesh Ponnuru 05/12 05:42 PM]
Ed Whelan makes a number of good points about the relation between these topics on NRO today. I've read the Michael McConnell article to which he refers, however, and am not wholly persuaded. I think there's another possible answer to be given: A restrained view of judicial power that prevents Brown from taking place also keeps the Civil Rights Cases from taking place either, and allows the federal Congress to stop Jim Crow. If we're doing counterfactual history, there's no reason to start it in 1954.
Extremist Makeover
[Gerard V. Bradley 05/12 05:41 PM]
So, Senator Reid has an FBI secret which will end the war over Henry Saad. (See post by Sean Rushton.) And Senator Schumer feels like he is being whacked upsides the head with all these renominations. (See Jonathan Adler's post.) Maybe it's just me, but Rick Garnett's call to "Get to the Merits!" seems like a pretty good idea right about now.
Assuming that the merits have at least something to do with abortion, the filibusterers are getting more extreme by the day. For that reason Republican senators should be prepared to go beyond arguments about competence and fair hearing--probative thought those points are--and argue for these judges by arguing in favor of substantive positions on abortion and Roe.
Priscilla Owen an "extremist" for upholding a parental notification law? Not according to every poll I have ever seen. Just the other day a score and more Congressional "pro-life" Democrats announced legislation to winnow out (through various means short of prohibition) ninety-five percent of this country' abortions. The headline I wish we saw but did not: "Dems declare that nineteen of twenty abortions should not occur". Quondam conservative New York Times columnist David Brooks is the most recent of a growing line journalists to call for overturning Roe--and it helps that liberal scholar David Garrow (in the latest Legal Affairs) how much of the Roe opinion was jerry-rigged by Blackmun's clerks.
Come to think of it, on almost all the issues mismanaged by the courts over the last generation--church-state, crime and punishment, marriage, pornography--the U.S. has become a red state. The filibusterers are "extremists" on procedure, tactics, rhetoric--and on the merits of all these issues, too.
For the First Time
[Ramesh Ponnuru 05/12 05:05 PM]
A federal judge (Joseph Bataillon, a Clinton nominee) has struck down a state ban on same-sex marriage. Nebraska voters amended the state constitution to define marriage as the union of a man and a woman. The judge, following the reasoning of the Supreme Court's decision in Romer v. Evans (1996), ruled that the amendment had infringed on the rights to political participation of advocates of same-sex marriage: They can't get their way just by persuading the legislature, since they would also have to overturn the amendment. The reasoning, like the reasoning in Romer (which prevented localities from passing laws against discrimination against gays), strikes me as awfully shaky.
Here's what Justice Scalia said in dissent from Romer: "The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature--unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard-of."
Reid’s Calumny
[Sean Rushton 05/12 03:48 PM]
At 12:57 today, Senate Minority Leader Reid said the following on the Senate floor:
HENRY SAAD WOULD HAVE BEEN FILIBUSTERED ANYWAY. HE'S ONE OF THOSE NOMINEES. ALL YOU NEED TO DO IS HAVE A MEMBER GO UPSTAIRS AND LOOK AT HIS CONFIDENTIAL REPORT FROM THE F.B.I., AND I THINK WE WOULD ALL AGREE THERE IS A PROBLEM THERE.
Now, it is unclear whether non-Judiciary Committee Senators are even allowed to read a nominee’s FBI file, which are highly confidential, but they sure as heck should not be talking about it on TV from the Senate floor. Can you think of a better way to trash someone’s reputation--say that there is bad stuff from an FBI investigation in a file somewhere and leave that hanging? This is character assassination of the lowest order and completely improper.
Reid Continues to Backpedal
[Jonathan Adler 05/12 03:04 PM]
His latest offer is to "allow" votes on three of the four Michigan nominees if Frist doesn't push the filibuster rule change, according to this AP report. In the same story, Senator Schumer says the renomination of filibustered nominees was a "thumb in the eye" and the recess appointment of Bill Pryor was a "slap in the face." So how did Schumer feel about Clinton's recess nomination of Roger Gregory to the Fourth Circuit.
Ken Starr's Real Views
[Ramesh Ponnuru 05/12 03:03 PM]
CBS, AP, and other outlets reported earlier this week that Starr had said that getting rid of the judicial filibuster would be a "radical, radical departure from our history and our traditions, and it amounts to an assault on the judicial branch of government."
This seemed like a very odd thing for Starr to say, so I contacted him.
He forwarded to me an email he had sent to someone else who had asked about this matter:
"In the piece that I have now seen, and which I gather is being lavishly quoted, CBS employed two snippets. The 'radical departure' snippet was specifically addressed -- although this is not evidenced whatever from the clip -- to the practice of invoking judicial philosopy as a grounds for voting against a qualified nominee of integrity and experience. I said in sharp language that that practice was wrong. I contrasted the current practice . . . with what occurred during Ruth Ginsburg's nomination process, as numerous Republicans voted (rightly) to confirm a former ACLU staff lawyer. They disagreed with her positions as a lawyer, but they voted (again, rightly) to confirm her. Why? Because elections, like ideas, have consequences. . . . In the interview, I did indeed suggest, and have suggested elsewhere, that caution and prudence be exercised (Burkean that I am) in shifting/modifying rules (that's the second snippet), but I likewise made clear that the 'filibuster' represents an entirely new use (and misuse) of a venerable tradition. . . .
"[O]ur friends are way off base in assuming that the CBS snippets, as used, represent (a) my views, or (b) what I in fact said."
Greens Go After Owen
[Jonathan Adler 05/12 02:58 PM]
Justice Owen is one of several Bush appellate nominees attacked by environmental groups. I debunked a bunch of their charges for NRO almost three years ago here. Nothing's changed, other than the amount of time Owen's been waiting for a Senate vote.
Debunking Owen Conventional Wisdom
[Kathryn Jean Lopez 05/12 02:13 PM]
Senator Cornyn addresses some popular left points on Priscilla Owen in a letter in the current Roll Call, so it's worth reading (not available online):
Nan Aron's May 10 Guest Observer, "What's Wrong With President Bush's Gang of Seven," criticizes certain opinions authored or joined by Justice Priscilla Owen. As a former Texas Supreme Court justice who served with Owen, I welcome any serious dialogue about the law or about her rulings in particular. Unfortunately, Aron's charges are deeply flawed and badly misrepresent the cases.
Aron claims that one case (I assume it's Hyundai Motor Co. v. Alvarado) involved a "faulty constraint mechanism" that resulted in a car accident. Wrong. In fact, the car in question fully satisfied the federal standard then in effect - namely, that cars be, among other options, "equipped with a two-point passive restraint system." Despite federal law, the plaintiff chose to sue anyway. Owen's opinion simply held that Congress had forbidden such suits once the federal standard had been met. Out of the mainstream? Not even close. Her opinion followed the "solid majority of the courts to consider this issue" - including precedents authored by judges appointed by President Jimmy Carter. Moreover, the U.S. Supreme Court later adopted her approach, in an opinion authored by Clinton appointee Justice Stephen Breyer (Geier v. American Honda Motor Co., Inc.).
Aron claims that another opinion (I assume it's Read v. Scott Fetzer Co.) said that a woman raped by a vacuum cleaner salesman could not "sue the company, which had hired him without a background check." Wrong again. The dissenting opinion made expressly clear that "[n]o one questions that [the company that had hired the rapist] is liable." The justices simply disagreed on whether another company - one that had not hired the rapist and had no relationship with the rapist - should also have been held liable. Out of the mainstream? Of course not.
Finally, Aron claims that Owen "ignored" a Texas law "designed to help pregnant teens obtain an abortion with court permission." Wrong yet again.
First, the law simply empowers parents to be notified about the actions of their minor children. Many pro-abortion interest groups actively opposed the enactment of the law - but that was the act of the Texas Legislature, not Owen.
Moreover, Aron repeats the tired and refuted claim that then-Justice Alberto Gonzales accused Owen of an "unconscionable act of judicial activism" in one parental notification case. In fact, Gonzales has sworn - under oath - that he supports Owen and that he never accused her of any such thing.
Ask yourself this question: Who is more credible to talk about the quality of Owen's legal analysis of the parental notification statute? The author of the statute - who supports her? The pro-choice Democratic law professor appointed by the Texas Supreme Court to craft procedures under the statute - who also supports her? Or the special interest groups who never wanted the law to go into effect in the first place?
We can have serious debates about the law. There are real issues of judicial activism in our nation - whether it's the redefinition of marriage, or the expulsion of the Pledge of Allegiance and other expressions of faith from the public square, whether it's the elimination of the three-strikes-and-you're out law and other penalties against convicted criminals, or the forced removal of military recruiters from college campuses. But there is a world of difference between struggling to interpret the ambiguous expressions of a legislature and refusing to obey a legislature's directives altogether.
Owen is a good judge. She deserves to be confirmed, and most of all, she deserves an up-or-down vote.
Sen. John Cornyn (R-Texas)
Get to the merits!
[Richard Garnett 05/12 02:08 PM]
Before the public-relations consultants to the Senate Democrats and the left-leaning interest groups came up with the (silly) claim that it is their devotion to separation-of-powers principles and their fidelity to the Constitution that requires them to continue preventing votes on the president's judicial nominees, they had another, more candid, argument: These nominees are "extreme," and should for that reason be kept off the federal courts.
The premise of this argument--namely, that "extremists" should not be federal judges--is easy to endorse. The problem, of course, is that the president's nominees have been nowhere near "extreme," but have instead been men and women of great intelligence and achievement, with views about the Constitution and the rule of law that are responsible and sensible. In my view, the public desperately needs to be educated about what, exactly, are the predicates for the claims by the New York Times, various senators, and left-leaning pressure groups that the president's nominees are "extreme." I am confident that a healthy majority of Americans would be surprised to learn what is in fact the case, namely, that "extreme" turns out to mean "thinks like most people about the role of courts, the rule of law, and the structure of the Constitution." I once read a short piece by a well-respected (center-left) scholar who pointed out that only a tiny handful of Americans--fewer than 5%, if I remember--agree with the program of the New York Times editorial page. And yet, departure from that program, and nothing else, is what is resulting in the "extreme" defamation.
So, fight the labels, and get to the merits. The obstructionists should have to be more explicit about what they think it is "extremist" to believe, i.e., Congress's power is bounded, the text of statutes and constitutional provisions should trump judicial policy judgments, abortion--even if legal--may be reasonably regulated, religious expression is protected in the public square, etc. I suspect, more specifically, that if more Americans actually read, or knew about, the stirring and inspiring work of Justice Janice Rogers Brown--"Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government."--they would stand up and cheer.
Journalists: This is Why Americans Are Mad About the Judiciary
[Sean Rushton 05/12 01:28 PM]
A Clinton appointee has tossed out the state's law barring distribution of sexually explicit pictures to minors over the Internet, saying it violates the First Amendment and Congress' authority over interstate commerce.
Root Causes
[Sean Rushton 05/12 01:02 PM]
With all the current analysis of the Senate teetering at the precipice of judicial filibuster reform, few reporters have traced the roots of the Democratic decision to ratchet up their tactics against President Bush’s judicial nominees. The filibuster is just the latest escalation in the war waged against Robert Bork, Clarence Thomas, and some of President Bush 41’s appellate nominees via committee procedure.
The latest chapter--captured in May 2001 by the New York Times--begins with a retreat at which law professors Lawrence Tribe and Cass Sunstein, along with the National Women’s Law Center’s Marcia Greenberger, addressed Senate Democrats. The trio argued the federal courts were at a critical juncture and that Democrats needed to “change the ground rules” on judicial confirmations.
Soon Sen. Chuck Schumer began to publicly advocate that ideology be openly considered by senators in their advice and consent role--reversing the tradition of deference to the president in the judicial selection process--and demanding a pre-nomination veto. Tribe, Sunstein, and Greenberger all testified at Schumer’s hearings, advocating for judicial ideology consideration.
From the Bush 43 administration’s outset, the majority Democrats had slow walked the appellate confirmation process. They turned a corner by defeating Charles Pickering in the Judiciary Committee on a party line vote (which, incidentally led to the Committee for Justice’s formation).
When the Democrats lost the Senate majority in November 2002, they made the final, radical decision: to change the ground rules on judicial confirmations via filibuster of Miguel Estrada because--as we learned subsequently from discovered strategy memos--“he is dangerous” because “he is Latino” and “the White House seems to be grooming him for the Supreme Court.”
So, when recounting why the Senate is at daggers drawn, teetering at the edge of institutional bedlam, let’s give credit where it’s due: to Lawrence Tribe, Cass Sunstein, and Marcia Greenberger.
Where You Are
[Kathryn Jean Lopez 05/12 12:34 PM]
This is National Review Online's latest feature: a blog devoted to judicial news, specifically the current Senate battle over judicial nominations. It's a topic only getting hotter by the date. Stay tuned to "Bench Memos" for news and analysis from smart and clued-in legal and political types.
Pryor Moves
[Shannen Coffin 05/12 12:28 PM]
Judge Bill Pryor, who was recess appointed to the U.S. Court of Appeals for the 11th Circuit after he was filibustered in the last Congress, was voted out of the Senate Judiciary Committee by a party line 10-8 vote today, setting him up in the list of judges to be obstructed on the floor by Democrats. Candidates Terrence Boyle (4th Circuit) and Brett Kavanaugh (D.C. Circuit) were again stalled in committee today.
