May 27, 2005
The Washington Post's New Aversion to the F-Word
[Ed Whelan 05/27 11:40 AM]
The Washington Post’s front-page headline this morning—“Democrats Extend Debate On Bolton”—struck me as curious. Why the longer, less lively phrase “extend debate” rather than the punchy “filibuster”?
As it happens, a search of the Post’s archives reveals that the Post has used the term “filibuster” in headlines a total of 1,775 times. Until today, it had never used “extend debate” in a headline as a synonym for “filibuster”. (The only time the Post had ever previously used “extend debate” in a headline was in a 1999 article titled “Commissioners Extend Debate on Teacher Fee”.)
Might the Post be providing rhetorical cover for Democrats?
Roe: Invention, Overreach, Arbitrariness, Textual Indifference
[Edward Whelan 05/27 10:14 AM]
Given the central role that Roe v. Wade plays in the Left’s battle to maintain control of the Supreme Court, it is encouraging that a number of today's thoughtful liberals are coming to recognize and publicly acknowledge that Roe is jurisprudentially indefensible and deeply harmful to the proper functioning of the American political system. (There was, of course, a flurry of liberal criticism of Roe in its immediate aftermath, but political correctness silenced such criticism over the last couple decades.)
An example on the jurisprudential point is Will Saletan’s new review of Linda Greenhouse’s sympathetic biography of Justice Blackmun. Saletan concludes from Greenhouse’s account that “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.” (Oddly, Saletan’s next sentence states, “But they also implicate his critics,” even though the only supposed critic he discusses is Chief Justice Burger, who fully joined Blackmun’s opinion in Roe while also writing a separate concurring opinion.)
May 26, 2005
thursday night
[Kathryn Jean Lopez 05/26 09:10 PM]
Frist just filed cloture on Janice Rogers Brown and William Pryor, right before they went to recess. So they're up when the Senate is back.
Replacing Priscilla Owen
[Ramesh Ponnuru 05/26 05:05 PM]
Texas conservatives are happy that Priscilla Owen will finally be sitting on the Fifth Circuit Court of Appeals—but they have reason to worry about who will now replace her on the Texas Supreme Court. She has been a conservative powerhouse there. Republican governor Rick Perry, facing a possible primary challenge from Senator Kay Bailey Hutchison, is being advised by some to appoint a woman to replace her. That imperative is in some practical tension with the objective of getting another solid conservative on the court.
To the extent that there is a conflict—if the decision ends up being between a conservative man and a not-very-conservative woman—Perry is probably better off picking the conservative. People who care a great deal about the number of women in high office are going to vote for Hutchison over Perry (or, even more likely, to vote in the Democratic primary). If Perry survives a Hutchison challenge, on the other hand, it will be because he rallied the conservative base.
Two Get Through, Others Stalled
[Jonathan H. Adler 05/26 03:43 PM]
The Senate Judiciary Committee approved two Bush nominees for the U.S. Court of Appeals for the Sixth Circuit--Richard Griffin and David McKeague. Both are nominees from Michigan who were previously blocked by Senate Democrats in retaliation for Republicans' blocking some of President Clinton's Michigan nominees. Action on two other appellate nominees, Terrence Boyle and Brett Kavanaugh, scheduled for today was put off yet again. This AP story does not indicate why the Boyle and Kavanaugh nominations were held over, though there is speculation that the Kavanaugh nomination is doomed by tacit agreement of the “Gang of Fourteen.”
Would Frist have had 50 Votes?
[Edward Whelan 05/26 12:25 PM]
Perhaps I’ve missed it, but I would have thought that there would be a lot of discussion whether Senator Frist would have had the 50 votes he needed (together with the VP’s tie-breaking vote) for changing the filibuster rule if the agreement among the 14 senators hadn’t been reached. Stated somewhat differently, it cannot be presumed that all seven Republicans who signed the agreement would have opposed the Frist proposal if they had faced a binary choice between that proposal and doing nothing. Those of us who oppose the agreement would have far more reason to be infuriated with the Republican signatories if the agreement actually prevented 50 senators from approving the Frist proposal. Conversely, if the Frist proposal would not have passed, those who defend the agreement could argue that the agreement has produced benefits (the confirmation of Owen and, presumably, the imminent confirmations of Brown and Pryor) that would not otherwise have occurred. (Of course, this argument by defenders of the agreement would have something of a bootstrapping quality to it, since it would depend on the judgment that it was defensible for Republican senators not to support the Frist proposal.)
For what it’s worth, a very knowledgeable source assures me that Frist would have had 50 votes--specifically, that Dewine and Graham would have supported the Frist proposal if the agreement hadn’t been reached (and that no non-signatories would have jumped ship). This same source tells me that Warner, not McCain, was the real driving force in putting the agreement together.
Far Be it From Me...
[Matthew J. Franck 05/26 12:18 PM]
To get in a wrestling match with John Podhoretz, who calls those of us who disagree with his assessment of The Deal on judicial filibusters "unhinged." On John's side is Linda Chavez, who, as noted yesterday in The Corner, calls it a better deal for the Right than for the Left "in the long run." Could be, but that could turn out to be a very long run indeed. Byron York, in The Hill, notes the Democrats' embrace of incoherence. Any takers on a bet that the Democrats don't care about looking coherent in this argument? And this morning, George Will takes a pretty balanced view of The Deal, and leads by saying it was reached by "seven Democrats essentially supported by their party's base and seven Republicans at odds with theirs." For today at least, Will appears to count himself among the unhappy GOP base. I will happily hang my hat this time where York and Will have put theirs.
Greens Vs. Judges
[Jonathan H. Adler 05/26 12:11 PM]
Earthjustice praised the judge deal, in part because it suggests William Myers will never be confirmed. It has also issued a press release lamenting confirmation of the "anti-environmental" Priscilla Owen. I've addressed these charges here and here.
A Unanimous Nominee?
[Jonathan H. Adler 05/26 12:09 PM]
Legal Affairs' Debate Club considers whether there is a potential Supreme Court nominee who could be confirmed 100-0. Orin Kerr has an idea of one candidate, John Roberts, who should be confirmed 100-0, but I wouldn't bet on it.
Four More in the Queue
[Jonathan H. Adler 05/26 12:06 PM]
Today should give a fairly clear indication of what the deal means for those nominees it did not explicitly mention as the Senate Judiciary Committee is scheduled to consider the nominations of four appellate nominees: Terrence Boyle, Brett Kavanaugh, Richard Griffin, and David McKeague.
May 25, 2005
Questions for Senators Byrd and Landrieu
[Edward Whelan 05/25 04:13 PM]
More than four years ago, on May 9, 2001, President Bush nominated Texas Supreme Court Justice Priscilla Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. Today, both Senator Byrd and Senator Landrieu voted to confirm her nomination. But on four separate occasions in 2003, both Byrd and Landrieu voted in support of the Democrats’ successful filibuster of her nomination.
On what principled basis do Byrd and Landrieu justify having filibustered a nominee whom they now vote to confirm? Why have they contributed to a four-year delay in Owen’s confirmation? Do they take the voters of West Virginia and Louisiana to be fools who can readily be duped into thinking that today’s vote marks Byrd and Landrieu as more responsible than their Democrat colleagues? Will each, in the fashion of John Kerry, boast to have voted for her after voting against her?
The Importance of Byrd and Landrieu
[Wendy Long 05/25 03:03 PM]
What is important about the fact that Senators Robert Byrd and Mary Landrieu voted for Justice Priscilla Owen? Byrd and Landrieu are both part of the Gang of 14: they are signatories to the document that allows filibusters only in "extraordinary circumstances," which now, by definition, did not obtain in the case of Justice Owen, who was painted for four years as an "extremist."
"pretty good for conservatives."
[Kathryn Jean Lopez 05/25 02:51 PM]
I'm slow to link: David Frum on the deal.
Owen Confirmation: What It Means about "Extraordinary" and "Ordinary" Circumstances
[Wendy Long 05/25 02:35 PM]
The Owen confirmation has now firmly established that the predictable attacks from liberal pressure groups, Chuck Schumer, Ted Kennedy, and Harry Reid, asserting that President Bush's judicial nominees are "extremists," does not constitute an "extraordinary circumstance." Rather, it is truly an "ordinary circumstance," which we can expect to see more of, and which does not in any way justify a future filibuster under the 14 Senators' "Memorandum of Understanding on Judicial Nominations." I've issued a press release to that effect, at the Judicial Confirmation Network website.
re: Roll Call
[Kathryn Jean Lopez 05/25 01:46 PM]
also worth noting: Ben Nelson and Chafee voted against.
56-43, Owen Confirmed
[KJL 05/25 12:42 PM]
The Washington Post vs. Pryor
[Ramesh Ponnuru 05/25 12:03 PM]
The Post's case against Pryor is awfully thin. It's impermissible for a nominee to think that the appointment of Justice Souter was a mistake? To think that the 5-4 result in Bush v. Gore might have the salutary effect of reminding people how important judicial appointments are? To support "states' rights," or at least to do so more "aggressively" than the dainty editors of the Post would like? None of these positions establishes what the Post asserts they establish: that Pryor's view of the judicial function is "overtly political." The Post's own politicized view of judging does not cease to exist simply because it is hidden (perhaps even to itself, so lost in editorial pretension are its writers).
Putting Judicial Nominees in Perspective, Part IV
[Ed Whelan 05/25 11:57 AM]
The anti-cloture reform agreement among 14 Senators encourages the President to consult in advance with senators about prospective nominees. That is a very bad idea, for reasons that I have explained here and here. It is especially bad because, as my previous posts in this series (on Rosemary Barkett, Lee Sarokin, and a not-so-hypothetical leftist nominee of a Democrat President) show, Senate Democrats have demonstrated that they do not deserve to be taken seriously as arbiters of the qualifications of judicial nominees.
But in all fairness to Senator Kennedy, I must point out that he is not always wrong about President Bush’s nominees. Well, at least once he wasn’t. Sort of.
Kennedy was one of nine Democrats who voted against an earlier nominee of President Bush’s. That nominee, Kennedy argued, had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy. The nominee’s record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling.” Among other things, when litigating on behalf of a state, the nominee had made “reactionary arguments” contesting the extent of Congress’s power to protect against discrimination.
In the area of voting rights, Kennedy thundered, the nominee’s record was equally bad. The nominee “was willing to defend the indefensible”—the use of literacy tests for voting--and had thereby demonstrated a willingness to discriminate against the poor and uneducated.
According to newspaper reports, the nominee had even described affirmative-action programs as affirmative discrimination.
Kennedy also found that the nominee’s record on sex discrimination raised “troubling questions.” By arguing for a deferential standard of review of classifications based on sex, the nominee had shown that he was not “genuinely concerned about the rights of women.”
And, of course, Kennedy found the nominee’s responses onRoe v. Wade “alarming.”
In sum, Kennedy feared, the nominee would work with others “to turn back the clock on the historic progress of recent decades.”
In retrospect, there is ample reason for those who have a proper understanding of the role of the courts in our constitutional republic to wish that Kennedy’s arguments had prevailed. For the nominee against whom Kennedy railed was none other than Justice David H. Souter, nominated by the first President Bush to the Supreme Court in 1990.
As a Justice, Souter has been far more left-wing than even Kennedy might have hoped. Contrary to media depictions of him as a “moderate,” Souter has read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution. Souter’s only arguable saving grace as a Justice has been a prose style so impenetrable that his opinions often verge on the incomprehensible.
It is particularly instructive that Kennedy deployed his full arsenal of clichés against Souter, for those same clichés are now being used—with comparable disregard for accuracy—by Senate Democrats generally against President Bush’s judicial nominees. Kennedy’s insistence that a Supreme Court nominee have demonstrated his leftist credentials in order to be confirmed has now become the position of Senate Democrats on President Bush’s appellate-court nominees. Senate Democrats do not want judicial nominees who will be responsible judges. They want judicial nominees who will be their political allies, imposing through the courts what the Left cannot achieve through the political processes.
(Source of Kennedy statements about Souter: Kennedy’s October 2, 1990, Senate floor statement.)
Interesting Take--and What About Griffith?
[Andy McCarthy 05/25 11:25 AM]
An insightful reader makes some predictions (reacting to this morning’s Corner discussion in which I noted that the MOU does not mention Kavanaugh and Haynes):
You say, "I don't understand why they weren't mentioned in an MOU that went to the trouble of mentioning the other 5."
Kavanaugh, Haynes were both left unmentioned. Thomas Griffith, another controversial nominee about to come to the floor, was also left out. I believe that these three will be the "test cases" for the "extraordinary circumstances" clause.
The three green-lighted nominees -- Owen, Brown, and Pryor -- were opposed only on grounds of ideology. There were no real character-related objections to them (besides "judicial temperment," which really came back down to ideology.).
Saad and Myers, both thrown overboard, were also opposed for non-substantive grounds. Saad would tip the balance on the 6th Circuit and is hated by Reid. Myers would have been an "anti-green" on the West's 9th Circuit. There were no character-related objections to either (except for Reid's weird reference to Saad's FBI file).
These five were handled in a straight-up trade. The Dems cave on three conservatives who were only opposed on ideological grounds, and the GOP tosses overboard the one (of four) 6th Cir. nominees who really drew fire, plus a nominee to a liberal court where he would have no marginal impact.
This leaves the other three, who share in common one important trait: they are opposed on ideological grounds PLUS there are major objections to their records:
1. Haynes, former [general counsel] of the Pentagon, is seen as being responsible for War on Terror policies that, critics claim, show a lack of respect for the Rule of Law.
2. Kavanaugh, former Starr investigator, is claimed to have been leak prone in an lawless political war on the Clinton Administration.
3. Griffith let his bar membership lapse while practicing in Utah.
(I'm not saying I agree with the portrayals[,] … I'm just echoing the critics.)
They will be the test cases for "extraordinary circumstances." After much "deliberation" (or an attempt to put on such appearances), the Fabulous Fourteen will kill the Haynes and Kavanaugh nominations, and let Griffith (who Reid has already offered to support in previous negotiations) succeed. By doing this, the Fourteen can paint themselves as deliberative, nonideological, nonpartisan, and cohesive.
No Surrender
[Jonathan Adler 05/25 11:07 AM]
The NYT found the judge deal "heartening," but still defends resort to the filibuster. "While the idea of letting the majority rule is at the heart of much in American democracy, it has little to do with the Senate, where some members represent 10 times as many people as others. There is absolutely nothing unfair about allowing a minority that actually represents more American people to veto lifetime appointments of judges who are far outside the mainstream of American thinking."
Post Endorses Owen
[Jonathan Adler 05/25 11:00 AM]
Today's Washington Post calls for Senate Democrats to drop their opposition to Justice Owen's confirmation. "Justice Owen would not have been our choice for the job. But she is undoubtedly well-qualified, and the case against her is not strong enough to justify denying the president his choice. Mr. Bush did win the election." Alas, the same editorial encourages opposition to Justice Brown and Judge Pryor.
Sky Falling at Noon
[Kathryn Jean Lopez 05/25 10:37 AM]
From a mass e-mail from Senator Cornyn's office: "For four years, two weeks and two days, Justice Owen’s opponents have warned that allowing a simple up-or-down vote on Priscilla Owen would cause the sky to fall, mountains to crumble, and rivers to overrun their banks. They’ve told us that the Republic as we know it would cease to exist and that the judiciary would be ruined for all time. So at noon today, we are encouraging everyone to don their hard hats—just to be safe."
This image was send around too:
The Real Leader of the Senate
[Kathryn Jean Lopez 05/25 06:03 AM]
David Broder may say it's John McCain, but George Allen may be a contender. From the Boston Globe: "'I'm disappointed in the deal. I don't feel at all bound by it. William Myers should be accorded a vote. That may be when we have the battle." You go, Allen. (Of course, he's greatest advantage is that he is not Majority Leader.)
RE: Roll Call
[Kathryn Jean Lopez 05/25 05:57 AM]
A roll-call watcher inside the Senate notes: "And keep in mind that before the vote ended, a few Senators changed from "yea" to "nay." This group includes Biden, Sarbanes and others. I guess now they, too, can have a great line like "I actually did vote for her--before I voted against her."
I guess they didn't want there to be too few nays. Not that politics are involved or anything. "
Apologies to Brother Franck
[Andy McCarthy 05/25 01:13 AM]
My apologies, Matt. I should have know from the cogency of your arguments that you could not possibly be a lawyer.
May 24, 2005
Politics vs. Law
[Edward Whelan 05/24 09:42 PM]
I agree entirely with Matt, Andy, and Ramesh that the anti-cloture reform agreement is a political rather than legal document. But politics and law are not so easily separated in a political culture that continues to value the rule of law. My limited objective in construing the legal meaning of the agreement has been to refute legal interpretations of that document that would unduly constrain Republican signatories from later deeming themselves released from their promise not to pursue cloture reform. If a wrong legal understanding of the agreement becomes accepted, the political challenge will become all the more difficult.
By the way, Andy,
[Matthew J. Franck 05/24 08:22 PM]
who you calling a lawyer "over here," Keemosabe? I'm inordinately proud of never having attended law school!
Re: Response to . . . Me
[Matthew J. Franck 05/24 08:07 PM]
Unless I missed something, Ramesh and Andy appear to disagree with each other as much as with me--or to agree with me more than they think. Ramesh is quite right that the way to read the Memorandum of Understanding is not as though we were lawyers or judges in a contract case--which is why I turned from the legalistic "letter" to the more political "spirit" in my posting this morning. The final determinant of the meaning of this "corrupt bargain" (cf. 1824 for that phrase) is not what we poor interpreters say about it, but the willingness of the GOP Senators to "go nuclear" (or "go constitutional" or "go all Byrdie") when the Democrats suddenly act on their presumptive right to view as a nomination as "extraordinary." I just find it unlikely that among the Sanctimonious Seven--McCain, Warner, Snowe, Collins, DeWine, Graham, and Chafee--we will find at least two with the nerve to respond to what even those seven believe are patent abuses of the bargain by the Democrats.
Andy seems to agree with me, that the most compelling reading of the deal is one that favors the Democrats, who retain freedom of movement in future, while the Republicans bound themselves to more constraints from which they would have to free themselves.
All around, our disagreements seem slight in the end, don't they? Like Ed Whelan, I would like to hold the Democrats to some principled reading of the deal. But what we all think over here is not going to have much effect on the gang led by Senator Byrd.
Stalwart principles and Sharp Analysis
[Matthew J. Franck 05/24 07:23 PM]
are always on display at the No Left Turns blog by our friends at the Ashbrook Center. See this particularly by the redoubtable Joe Knippenberg, on last night's deal and on the principles that should guide interpretation of "advice and consent." Click on the "Comments" link at the end of his posting to see Joe expatiate further on this subject in response to others.
Re: Response to Franck
[Andy McCarthy 05/24 07:17 PM]
I'm totally with Ramesh on this one. We're lawyers over here, and there is thus understandably a lot of hyper-analyzing of the MOU about what triggers what, whether the determinations like whether "extraordinary circumstances" exist are unilateral or mutual, etc. It's important to remember here that this document is mainly a piece of theater (or at least a prop for future pieces of theater, when the filibusters inevitably go overt again). It's not enforceable in a court of law. The only place it will ever matter is in the court of public opinion. There, it gives the Dems much more ammo because, very simply, the Republicans appear to have promised to do something (i.e., refrain from a rule change), and the Dems appear to have (and in fact have) promised to do nothing -- they can still filibuster in "extraordinary circumstances," and since the Republicans did not draw them out on what that means, it means they can do it whenever they want to do it. After all, they've been saying extraordinary circumstances justified what they've been doing all along.
Bottom line: (a) The press will do nothing when the filibusters go overt again. Indeed, I have to say "go overt" because the media realizes the filibusters are not over even now -- the agreement itself suggests that one way or another several nominees will be stalled. But (b) the press will scream "breach" if the GOP renews talk of a rules change. That's the way it is. The rest is all details that will wash over people no matter how much we lawyers seek to breathe life into them.
Response to Franck
[Ramesh Ponnuru 05/24 06:39 PM]
Matt, I think it's a mistake to view the memorandum of understanding as though it were a piece of legislation or a legally binding document. It is an entirely political statement. Both sides are trying to spin it their way now, and there's no reason for either side to disarm--especially since the somewhat opaque "in light of" phrasing makes it possible to interpret it in several ways.
Victory?
[Kathrynn Jean Lopez 05/24 05:47 PM]
From Hotline's "Last Call":
DNC Chair Howard Dean, on the filibuster deal: "I would be hesitant to say it's a win for the Democratic Party" (AP). MoveOn invited supporters "to a victory conference call" with Senate Min Leader Harry Reid (Last Call! sources).
The Hard Spin
[Kathryn Jean Lopez 05/24 05:12 PM]
An e-mail out today from the Democratic Senatorial Campaign Committee:
By now I'm sure you have heard about the last night's historic agreement that ended the Senate standoff over the use of the filibuster and protected our rights to filibuster a Supreme Court nominee. But if you ask me, the media has been missing the aspect of this agreement that will have the longest-lasting impact: Bill Frist lost today. Badly.
The Republican Leader put his reputation on the line. Pat Robertson, Gary Bauer, and the rest of the right wing fringe were counting on him to succeed in his effort to abuse his power and change the rules. They dreamed of the day when every right wing judge would get a spot on our federal courts every time. He has failed.
Frist's right wing allies are furious that he could not deliver on his promises. James Dobson, founder of Focus on the Family, called the deal a "betrayal" and said that he and his conservative allies share "disappointment, outrage and sense of abandonment." He vowed that his followers would remember on Election Day those who "betrayed their trust." Bill Frist needs the right wing power brokers on his side to win the 2008 presidential primaries. His hopes for victory just took a serious hit.
It gets better. Seven moderate Republican senators abandoned Frist's efforts to change the rules to appease the right wing. His grip on power over Senate Republicans is slipping. For Bill Frist, the nuclear option has blown up in his face.
The bottom line of this entire affair is that we upheld our long history of checks and balances against absolute power and we held onto our right to block George Bush's nominees to the Supreme Court. Seven Republican senators have agreed to oppose any future attempts to trigger the nuclear option.
Besides, when Bill Frist tries to pull these kinds of shenanigans around a Supreme Court nominee, he'll look even more desperate and further out of the mainstream than he does now.
Bill Frist lost today. He lost his hold on his right wing base and he lost his hold on Senate Republicans. That sounds like a pretty good deal to me.
Sincerely,
Anne Lewis
KJL: So they're saying Frist lost, right? Wish they had emphasized that point, just to be sure.
L. Graham From Last Night
[ 05/24 05:00 PM]
I think we forgot to comment on this, which Hugh Hewitt does today: "Lindsey Graham's short speech about 'we are at war, and kids are dying,' was a low, low point for him. " That it was. It reminded me of Glenn Reynolds war line vis-a-vis the recently passed abortion-transport bill. Except Reynolds's isn't a United States senator.
L. Graham
[Kathryn Jean Lopez 05/24 04:54 PM]
Jon Adler just called--heard L. Graham on a radio show say that renominating Estrada would not constitute an "extraordinary circumstance." Also, Graham (a.ka. MIT) still believes he still retains the right to invoke the nuclear option on one of the seven if Dems filibuster and its not an "extraordinary circumstance."
No Deference
[Edward Whelan 05/24 04:32 PM]
Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that "extraordinary circumstances" exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist" means that a Republican signatory is fully entitled to determine that "extraordinary circumstances" do not exist and that a Democrat signatory's contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory's determination of "extraordinary circumstances."
More Complaints
[Kathryn Jean Lopez 05/24 04:03 PM]
A Religious Coalition for Reproductive Choice e-mail that just went out:
In the deal ending the Senate showdown over changing the filibuster rule, Democrats agreed to forego the filibuster on three of President Bush's most extreme nominees--Priscilla Owen, Janice Rogers Brown, and William Pryor. The Religious Coalition for Reproductive Choice will continue to vigorously oppose all three as unsuitable for lifetime judicial appointments and urges you to tell your Senators to vote against their confirmation.
The compromise forged by a bipartisan group of 14 Senators does two things: it shelves the Republican threat to eliminate the filibuster for judicial nominees and leaves open the possibility that the filibuster can be used in "extraordinary" circumstances.
The question now: if the Bush Administration nominates an anti-choice ideologue for the U.S. Supreme Court, will protecting women's rights and lives be considered "extraordinary?"
As people of faith, we must make it clear that judges who oppose reproductive rights and want to impose their own religious views are unacceptable.
CBC & The Deal
[Kathryn Jean Lopez 05/24 03:20 PM]
The Congressional Black Caucus opposes the deal.
Re: The Filibuster
[Jonathan Adler 05/24 02:48 PM]
I think Mark and I are talking past each other. I don’t think many conservatives maintain that the filibuster is useful as a tool to block judges. Rather, I think many conservatives believe that the filibuster is a useful legislative tool insofar as it allows conservatives to block the growth of government. The connection is that many conservatives rightly feared the proposed rule change for judicial nominations would lead to the complete elimination of the filibuster for all purposes the next time conservatives sought to block a liberal initiative. That is, getting rid of it where it is improper would lead to getting rid of it where it is proper and useful.
SCOTUS Love Affair with International Law, Cont'd
[Kathryn Jean Lopez 05/24 02:20 PM]
AP:
INDIANAPOLIS - Allowing U.S. courts to consider the views of other judges — including international jurists — while making a decision is a responsible practice, Supreme Court Justice John Paul Stevens said during a speech Monday.
The Filibuster
[Mark R. Levin 05/24 02:17 PM]
My comment related to filibustering judicial nominees, but I am not persuaded that even the legislative filibuster is a great tool for limiting government. I can think of numerous examples where the opposite would be true, such as a minority blocking tax cuts or the elimination of programs. So far, I've not seen the evidence but am certainly willing to consider it. And it seems to me it is for those who argue the benefit of the filibuster, and its value to conservatives, to explain why it's such a benefit when it has never been triggered. If there have never been enough conservative senators in the Senate to use it against judicial nominees, or if there have never been enough conservative senators who think it should be used to block judicial nominees, then what's the benefit? Which is my point.
The Filibuster as a Tool
[Jonathan Adler 05/24 01:56 PM]
Mark comments that "if the filibuster is such an important conservative tool, it's remarkable that conservatives have never used it to block activist judicial nominees." But this would only be "remarkable" if a) there were enough conservatives (as opposed to Republicans) in the Senate to filibuster a judicial nominee and b) if conservatives thought it was ever advisable to filibuster a judicial nominee. One could well believe, as I do, that the filibuster is an important tool for slowing or blocking unwise legislation, but it is nonetheless always inappropriate when used to block confirmation of judicial or executive branch nominees.
RE: Bainbridge
[Mark R. Levin 05/24 12:43 PM]
I don't know if Professor Bainbridge is usually conservative as I admitted don't know him and don't regularly read his postings, but his posting on the filibuster deal isn't all that different from what we've heard for months now. George Will made many similar arguments, which I addressed several weeks ago. I would add that if the filibuster is such an important conservative tool, it's remarkable that conservatives have never used it to block activist judicial nominees.
Cloture vote
[Kathryn Jean Lopez 05/24 12:31 PM]
just happened--81-18
John Kerry vs. Brown & Meyer
[Kathryn Jean Lopez 05/24 12:31 PM]
He's in the Boston Globe today. Bad production timing, I guess, since it's "Meyer who?" this morning.
On Professor Bainbridge
[Gerard V. Bradley 05/24 12:03 PM]
Jonathan Adler draws our attention to the always-thoughtful and usually-right (in both senses: conservative and correct) law professor Stephen Bainbridge. Bainbridge dissents from the conservative chorus on "the deal." He instead praises the filibuster as "profoundly conservative," for it allows a "resolute minority" to "stand athwart history" and to delay if not stymie change. This is, evidently, a good thing. For Professor Bainbridge it is, at least, "conservative," and that is good enough. Besides, he says, we may need the filibuster if a Democratic president nominates Larry Tribe for the Supreme Court.
I am reluctant to disagree with my friend and former teaching colleague on this, or on any other issue. But this time, for once, Bainbridge is mostly wrong. Now, "mostly wrong" is also "slightly correct": no doubt the filibuster does delay, if not stymie, change. And let's not quibble over whether it is inherently or "profoundly" conservative to introduce change slowly. If Bainbridge wants to say that conservatives are just people who favor (invariably?) protracted, organic change, so be it. But that use would be entirely non-evaluative; it implies nothing about justice or what is right. It is just a definition. In reality, however, delay can be profoundly unjust, as it is when the protection of homicide laws is denied to a whole class of human beings, resulting in deaths numbering in millions. Not a single abortion performed today, tomorrow, next week, or next year (or the year after that) is any less unjust because of the "conservative" view that legal change on this issue ought to occur slowly.
Now, overturning Roe so that each state gets to decide what abortion laws it wants is a pretty "conservative" idea, too. And that is what a lot of so-called conservatives had invested in the constitutional option undermined by "the deal". Besides, on the precise issue before the House--whether the "advice and consent" of the Senate to the president's judicial nominees should require a supermajority vote--there is no intrinsically "conservative" view. It is easy to imagine slowing the confirmation process down.
Why call a leisurely pace "conservative"? Or, if you prefer, call it "conservative." Either way, does that mean I should change my opinion about the Constitution? The Constitution could have required House concurrence. But it did not. The Constitution could have required the two-thirds vote in the Senate that is required for treaties. But it did not. The Constitution could have required that nominations originate in the Senate, perhaps with presidential concurrence, a sort of veto which could be overcome by later supermajority vote in the Senate and/or House. But it did not. Is the Constitution not "conservative"? Is it "liberal"? Who is to say.
I am not personally worried about a Tribe nomination to the Supreme Court, so long as even just one senator has a copy of Henry Abraham's book.
re: Dirty Deal
[Kathryn Jean Lopez 05/24 11:54 AM]
That's what the NYTimes has been reporting, too, Brad. One (or at least I) worries if that's what people are willing to talk about publicly, there may be worse yet to be revealed.
Dirty Deal?
[Bradford Berenson 05/24 11:22 AM]
I have just heard from excellent sources that a number of Hill reporters believe that there is an oral side deal under which two other very good men have been prospectively thrown overboard by the Republican 7, notwithstanding the "extraordinary circumstances" pledge: Kavanaugh and Haynes. If true, this would be the dirty deal of all time and a disgraceful surrender executed under cover of darkness. It would also be an ominous portent of how the written deal will be implemented in the future.
At this point, this is only rumor, but it's imperative for the press, the groups, and the Republican leadership to demand a flat, on-the-record confirmation or denial from each of the seven Republican signatories. Immediately. If there are terms of this deal beyond those in writing, the public has a right to know.
Feeding the Monkey(s)
[Mark R. Levin 05/24 11:06 AM]
Professor Bainbridge and certain other libertarians have long been opposed to triggering the constitutional option, and they've been unpersuasive in my view.
As for consultation, I was involved in the judicial vetting process for about twelve months while serving in the Reagan White House. Much deference was given to homestate senators over district court nominations. No deference was given to any senator respecting circuit or Supreme Court nominees. Consultations at that level involved working with key Republican senators, and possibly sympathetic Democrats, to strategize the best way to achieve confirmation. This approach was critical to ensure that senators didn't think they could have the same kind of influence over the circuit and Supreme Court nomination process that they were allowed on the lower courts. This has always annoyed certain senators, who want to play a larger role in the process. And I am not surprised this is in the agreement, given the huge egos of the seven "moderate" Republicans involved in this farce ... I mean, MOU.
Re: "We Cannot Allow Filibusters to Come Back"
[Andrew C. McCarthy 05/24 10:45 AM]
Sen. Sessions sounds like the Mets sounded last Thursday -- a lot of brave talk before the games start. Then the games actually started, and the Yankees beat their brains in ... like they usually do.
Imagine what it's like to root for both the Mets AND the GOP. I wish I only had to imagine ...
Reax Round-Up
[Jonathan Adler 05/24 10:44 AM]
TKS has a nice round-up of right-leaning blogs on the deal.
A Reader Says
[Kathryn Jean Lopez 05/24 10:44 AM]
"Nan Aaron just said on Diane Rehm that an appointment to the Supreme Court is by definition an 'extraordinary circumstance.'"
What Am I Missing?
[Kathryn Jean Lopez 05/24 10:41 AM]
Ted Kennedy is on the floor of the Senate arguing that the deal sends a clear message to the president that extremists are unacceptable. Then how are Pryor and Owen and Brown acceptable, Senator? That seems unspinnable for the Left.
A Couple Clarifications/Rejoinders
[Edward Whelan 05/24 10:35 AM]
1. Some have questioned my observation here that “the Republican signatories’ agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories’ living up to their end of the bargain.” I would like to explain why it is both legally wrong and tactically imprudent to dispute this point.
Any agreement must be read against background contract principles. One of the most elementary principles of contract law is that a material breach by one part excuses continued performance by the other. So there is, I submit, no question that a Republican signatory is not bound to his promise to oppose cloture reform if the Democrat signatories do not live up to their end of the bargain.
Besides being legally wrong, it is tactically imprudent to read the agreement any other way. The agreement is no longer at the drafting stage; it is now a fait accompli. Some Republican signatories will undoubtedly look for excuses not to change their position down the road. Misreading the agreement to suggest that they are bound under all circumstances to oppose cloture reform will give them something to hide behind.
Some readers have suggested that my reading of the agreement is too optimistic. I have rarely been accused of optimism, and I am innocent of the charge here. I don’t trust the Republican signatories to recognize and act upon a breach when one occurs. Intense pressure will need to be placed on them.
2. I think that Jonathan’s disagreement with my comments on pre-nomination consultation is both far less and far greater than he suggests. I agree that there has been a practice of pre-nomination consultation with home-state senators. But Jonathan’s examples of the non-nominations of Peter Keisler and Chris Cox prove my point that this consultation leads to mediocrity. It would be difficult to find a finer lawyer with a more judicious temperament than Peter Keisler. And although I don’t know Chris Cox, I understand that he is also outstanding. The fact that pre-nomination consultation doomed their nominations supports my point that consultation is the enemy of excellence and that anything that increases the Senate’s pre-nomination role is bad.
Simply put, most senators don’t care about, and are ill-equipped to discern, quality nominees. They care about raising money. Jonathan doesn’t think that consultation is a big deal. But it is impossible to identify all the outstanding potential nominees who have been overlooked because they are not fundraisers and cronies of senators. Consider this: Why is it that the D.C. Circuit has consistently had more outstanding judges than other circuits? I think a big part of the answer is that there is no home-state senator who can adversely influence D.C. Circuit nominees.
Bainbridge Defends Deal
[Jonathan Adler 05/24 10:29 AM]
Professor Bainbridge answers conservative critics of the deal.
Is "extraordinary circumstances" a Fraud?
[Bradford Berenson 05/24 10:29 AM]
Let's find out. Before the ink is dry on this deal, the White House and Senate Republican leadership should work together to bring to the floor as quickly as possible all the remaining circuit court appointments, including those of nominees such as Brett Kavanaugh and Jim Haynes, whom the Democrats would previously have had on their hit list. If any of those nominees draws a filibuster, we will know that the deal is a fraud, the Republican moderates who cut the deal will look ridiculous, and the pressure will be back on to implement a permanent, institutional solution. But with each day of distance we get from this issue, the power of further filibusters by the Democrats to embarrass the seven Republican signatories will be less. Moreover, acting on these lower court nominations will, in effect, help set a standard and define "extraordinary circumstances" for a potential Supreme Court appointment. Thus, there's not a moment to lose: Let's schedule votes as quickly as possible on all remaining circuit court appointments and put the seven moderate Democrats to the test.
Poor Drafting
[Bradford Berenson 05/24 10:26 AM]
Examination of the actual Memorandum of Understanding embodying the deal reveals something remarkable: there is no explicit linkage between the Republicans' promise not to support elimination of the filibuster and the Democrats' promise to use it in the future only in "extraordinary circumstances.".Indeed, the Memorandum goes out of its way to emphasize that extraordinary circumstances are in the eye of each individual senator, while the obligation not to go nuclear is unconditional during the 109th Congress. What this means is that if the Democrats have entered into this in bad faith, the Republicans will be severely disadvantaged in trying to enforce it. They will be in clear breach if they vote to eliminate the filibuster, but no one will ever be able to prove that the Democrats have violated their commitments in some objective way.
Aren't there any lawyers up there in the Senate?
"We Cannot Allow Filibusters to Come Back"
[Kathryn Jean Lopez 05/24 10:25 AM]
Jeff Sessions is pretty adamant on the floor right now. Summertime fireworks, kids. Good faith, food gaith.
More Reid
[Kathryn Jean Lopez 05/24 10:04 AM]
Reid just said “all filibusters are extraordinary.”
Reid
[Mark R. Levin 05/24 10:03 AM]
Harry Reid just said on CSPAN that there will be filibusters of judges.
Owen
[Kathryn Jean Lopez 05/24 10:03 AM]
Frist just announced expectation of confirming Owen this afternoon.
Morning Business
[Kathryn Jean Lopez 05/24 09:55 AM]
On the Senate floor: Reid just offered to go straight to a vote on Owen, without a cloture vote. Frrist said there will be a cloture vote, maybe move to other judges, and to Bolton. Reid doesn’t like that idea.
"No Victory"
[Kathryn Jean Lopez 05/24 09:49 AM]
Andy McCarthy doesn't agree with John Podhoretz.
Dealing with the Deal
[Kathryn Jean Lopez 05/24 09:38 AM]
Here's our corporate take on what went down in the Senate last night. Discuss amongst yourselves.
That Makes Seven
[Jonathan Adler 05/24 09:02 AM]
If the NYT story K-Lo linked to last night is to be believed, in the end Senate Democrats will have been successful at blocking seven of Bush's appellate nominees: Miguel Estrada, Charles Pickering, Carolyn Kuhl, Henry Saad, William Myers, WIlliam Haynes, and Brett Kavanaugh. An eighth, Claude Allen, was never filibustered, but clearly would have faced opposition had he been renominated.
Consultation
[Jonathan Adler 05/24 08:28 AM]
I have to disagree slightly with Ed Whelan on the issue of consultation with the Senate over nominees. As I understand it, pre-nomination consultation has been the norm for quite some time. For decades Presidents have consulted extensively with home state Senators on district court nominees, and even for circuit court nominees. Recall that President Bush decided not to nomination Chris Cox for the Ninth Circuit or Peter Keisler for the Fourth after consulting with home state Senators. Historically, lack of consultation has also been a reason to observe a home-state Senator's negative blue slip. Clinton's failure to consult with either Texas Senator was a reason his Fifth Circuit nominees had trouble. On the other hand, consultation has never been a veto. Thus, the Bush Administration sought extensive consultation with the Michigan Senators to find acceptable nominees, but proceeded with the "Michigan four" once it was clear that the Michigan Senators were holding out for Senator Levin's relative. There is also a record of some consultation on Supreme Court nominees -- as in some pre-nomination discussions so as to avoid the most inflammatory nominee (which is why, some claim, Bruce Babbitt was never nominated by President Clinton). Again, however, consultation is not any sort of "veto" on the President's power to nominate judges. If this is how consultation is understood, I don't think it's such a big deal.
Letter or Spirit?
[Matthew J. Franck 05/24 07:54 AM]
I am not sure I can agree with the favorable interpretation of the filibuster compromise offered by Ed Whelan (here in chambers), or Ramesh Ponnuru and John Podhoretz (over in The Corner). Is the deal reached in Part II.B of the memorandum, in which the signatories of both parties pledge themselves to oppose any change or reinterpretation of the filibuster rules for the duration of this Congress, contingent on what the Republicans think of the Democrats' claims about "extraordinary circumstances" in Part II.A?
The letter of the agreement suggests the answer is no. "[E]ach signatory must use his or her own discretion and judgment in determining whether such circumstances exist," which suggests that these fourteen senators are individual free agents on whether to filibuster. But "we commit to oppose the rules changes" seems pretty unequivocal, and the introductory clause of the sentence doesn't look conditional to me.
But John P. notes Sen. DeWine telling the Washington Post last night that he views the spirit of the deal as broken if the Democrats filibuster under circumstances that the Republicans cannot agree are extraordinary. In practice, any two of the signatory GOP senators can make good on that by bringing 50 votes to the floor to exercise "the Byrd option" (as Mitch McConnell calls it). We'll see if they can muster the nerve they lost in recent days.
There is reason to be pessimistic about this in the fact that the Republicans acceded to the tacit proposition that the Myers and Saad nominations represented "extraordinary circumstances" already. Would Democrats care to explain publicly what the grounds were for blocking those two for the rest of this Congress?
There is another blow here, and it wounds more deeply. All the talk about preserving the traditions of the Senate in this agreement has it exactly backwards. The Democrats already broke with those traditions, and this deal endorses the new order of the ages, albeit under "extraordinary circumstances" that remain to be defined. In the long history of the filibuster since John C. Calhoun, while its practical use and intent has often been simply to obstruct, the only defense any senator has ever made of it in public is not that it is a weapon of mass obstruction, but that it is a delaying tactic, a defense against hasty majorities, an invitation to full and leisurely debate on the floor before decisions are made. Even in recent weeks this has been the refrain of the Democrats.
McCain's Sanctimonious Seven (sorry, I left out Chafee in an earlier reference to the Six) have been snookered by that old vulture Robert Byrd into a new understanding of the filibuster--that it may be legitimately used, and legitimately defended, as a form of absolute obstructionism by a party that has the votes to prevent cloture. Not the principle of measured deliberation, but the principle of minority rule--an essentially anti-republican principle--has been enshrined in this agreement. Once again in his long career, it is Byrd who has changed the rules, and without seeming to have done so.
Why Pre-Nomination Consultation Is Worse Than Worthless
[Ed Whelan 05/24 07:27 AM]
Through the MOU, the seven Republican signatories have encouraged the President to consult with the Senate prior to submitting judicial nominations. Apart from the senators' blatant misreadingof the relevant constitutional text, this is a very bad idea.
Senators are of course free to convey their views to the President at any time regarding prospective nominations, and perhaps the White House could respond to the MOU by a blanket invitation to senators to feel free to make their views known. But what some signatories of the MOU seem to contemplate is that the President will run by some undefined, but bipartisan, set of senators specific individuals that he is considering nominating. Such a process would be worse than worthless for two reasons:
First, the primary, if not exclusive, criterion of a good nominee in the eyes of the typical senator is that the nominee has raised a lot of money for the senator and is a crony of his (or is very close to a major fundraiser/crony). Senatorial influence on judicial nominations has been a major cause of mediocrity on the courts. Anything that aims to increase that influence is bad.
Second, any expectation that unspecified Democrats will be consulted merely creates a trap. If the President were to consult leading Democrats as to specific prospective nominees, Democrats would object to any decent nominee and then complain all the more bitterly if the President went ahead with the nomination. The chasm between a sound understanding of judging and the Democrats' understanding is so vast that it is absurd to think that consultation might help bridge it. And even if the President were to consult some Democrats, there will always be other Democrats who can complain that they should have been consulted.
Testing "extraordinary circumstances"
[Kathryn Jean Lopez 05/24 05:37 AM]
Adler, isn't this the time to renominate Miguel Estrada? If, like Lindsay Graham says, it's time to talk about if judges are qualified...
"Victory"
[Kathryn Jean Lopez 05/24 12:48 AM]
That's what John Podhoretz is sayng.
The Levin Read
[Kathryn Jean Lopez 05/24 12:06 AM]
Mark R., that is, is in The Corner. (Ramesh and others are talking in The Corner about the deal, too.)
About a Deal
[Matthew J. Franck 05/24 12:01 AM]
Sean Rushton, for the good and tireless people at the Committee for Justice, keeps a stiff upper lip, but McCain & co. have already pulled the rug out from under his two points:
1. The leadership can press for up-or-down votes all it wants, but two nominees--Myers and Saad--will never get them, in this Congress anyway.
2. It's futile to try to attach a principle to the agreed-upon language about "extraordinary circumstances," since the people put in charge of what is "extraordinary" are the Democrats, who have already proven themselves perfectly unprincipled in this fight.
Now it only remains to be seen, as Jon Adler points out, to what extremes the Senate Democrats will go, and what interest in the Constitution the Republicans will show, when a Supreme Court nomination nears the floor.
May 23, 2005
"this is the submission of the minority to the will of the majority"
[Kathryn Jean Lopez 05/23 11:58 PM]
Polipundit
Kavanaugh & Haynes
[Kathryn Jean Lopez 05/23 11:56 PM]
Jon, here's what the NYTimes is reporting:
Democratic officials said an unwritten aspect of the pact is that two nominees not named in the deal - Brett Kavanaugh and William J. Haynes - would not be confirmed and would be turned aside either at the committee level or on the floor.
Bashman on deal
[Jonathan Adler 05/23 11:53 PM]
How Appealing's Howard Bashman has some thoughts on the deal here. He thinks it's good news for Kavanaugh and Haynes, and immaterial on Saad (who he suggests would have lost his confirmation vote), but potentially bad for the Supreme Court.
MEMORANDUM OF "UNDERSTANDING"?
[Andy McCarthy 05/23 11:42 PM]
I don't even need my lawyer hat for this one, but I'll put it on in a second. The politics are obvious enough. What the Democrats "give up" in this deal is the ability to filibuster except "under extraordinary circumstances." What are "extraordinary circumstances"? Here was the Republicans' big chance to hold the Democrats' feet to the fire -- to make them explain to the American people, concretely, exactly what their objections are to the Bush judges. To judges in general who share a judicial philosophy that where the Constitution is silent the American people should be trusted to govern themselves.
Did they do it? Of course not. "Extraordinary circumstances" means whatever an individual senator decides it means -- much like the "living" Constitution means whatever a judge decides it means. It evolves with the circumstances -- which is to say, it means nothing.
Oh, and the lawyer hat? An "understanding" -- a contract -- is, very simply, a meeting of the minds. Does anyone think there is a meeting of the minds here about what "extraordinary circumstances" are?
If Saad and Myers are not worthy nominees, there's an easy remedy for that. They should be defeated on a vote of the full senate. A deal that stops them from getting a vote -- that permits the senate's constitutional obligation to be obstructed -- is a betrayal.
And leaving aside that the advice clause does not -- either literally or historically -- mean the president should consult with the senate before making nominations, why should I care what the signatories believe the Constitution requires if they don't think it requires them to perform constitutional "consent" by giving every nominee an up-or-down vote?
Rumors
[Sean Rushton 05/23 11:40 PM]
Liberal groups are telling journalists that Kavanaugh and Haynes will not be confirmed either.
Just to keep score: filibusters have already led to withdrawal of Estrada, Kuhl, and Pickering, plus Claude Allen who was withdrawn on threat of filibuster. Now, this illegitimately used tactic, supposedly renounced in general use going forward by this agreement, may kill Saad, Myers, Kavanaugh, and Haynes for a total of eight appellate scalps of 52 total nominees.
Let’s hope the rumors aren’t true.
Initial Reactions
[Ed Whelan 05/23 09:46 PM]
1. The Memorandum of Understanding is silent as to one nomination that is already on the floor, that of Thomas B. Griffith to the D.C. Circuit. It also is silent as to all the other nominations that are already pending but have not yet reached the floor.
All the more reason to think that this MOU marks only a very temporary cooling off. The issue will resurface soon, and it is now crystal-clear which Republicans need, ahem, reinforcement.
2. The Republican signatories' agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories' living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory's determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory's determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute "extraordinary circumstances".
3. The idea that the Constitution contemplates that the President will consult with the Senate before making nominations is belied by the text of Article II, section 2, clause 2, which provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges. As a matter of basic grammar, the phrase "by and with the Advice and Consent of the Senate" plainly modifies "shall appoint," not "shall nominate." And the idea that consulting Senate Democrats about prospective nominees would somehow have any value is ludicrous.
I Wonder
[Kathryn Jean Lopez 05/23 09:19 PM]
what this deal will mean for Brett Kavanaugh
Cornyn on the Deal
[Kathryn Jean Lopez 05/23 09:09 PM]
“After enduring years of harsh, unjustified attacks, Justice Priscilla Owen, Justice Janice Rogers Brown, and Judge William Pryor will finally get an up-or-down vote on the Senate floor. The signatories have also agreed not to filibuster judicial nominations in the future except under extraordinary circumstances. But Owen, Brown, and Pryor are highly qualified nominees who are firmly committed to the rule of law. They should never have been filibustered in the first place, and I expect the signatories to hold firm to their agreement not to filibuster similarly qualified nominees in the future. Otherwise, the spirit of the deal will be broken, and signatories will be and should feel free to take action to restore the 214-year Senate tradition of majority vote.
“The Senate judicial confirmation process has been at times emotional and politically divisive, and that is unfortunate. But all Americans of good faith should at least agree that we need a fair process for selecting judges – with full investigation, full questioning, full debate, and then an up-or-down vote. And all Americans should agree that, although nobody likes to lose, the rules should always be the same, regardless of whether the president is Republican or Democrat. President after President after President have seen their judicial nominees confirmed by majority vote, not supermajority vote. Senators should uphold and restore that 214-year tradition.
“I will continue to advocate for up-or-down votes on all of the President’s judicial nominees.”
Taken to the Cleaners
[Matthew J. Franck 05/23 09:07 PM]
As I write, Bill Frist is on the floor of the Senate gamely putting lipstick on this pig of an agreement, when he should be denouncing it. Sometimes the Senate's fabled "comity" is a truly disgusting sight.
Consider the text of the agreement, posted by Sister Lopez below. The Republicans gave up William Myers and Henry Saad--for the 109th Congress, anyway--on no grounds having to do with their fitness for the federal bench, and got nothing, absolutely nothing, in return. Indeed, the Sanctimonious Six have made a public promise to betray their party's leadership for the duration of this Congress, should that leadership attempt again to enforce two centuries of tradition on respect for the Senate's responsibilities to act on judicial nominations.
So the GOP fails once again to show that it has learned to act like a governing party, when the voters have made it responsible for so acting. The Democrats, by contrast, may pat themselves on the back for taking those Republican fools to the cleaners. Democrats remember so well how to govern that they can even do it from a position of weakness. By now this is a disappointment without being a surprise.
Daily Kos Read
[Kathryn Jean Lopez 05/23 09:06 PM]
An e-mail:
Over at the Daily Kos. the reaction is pretty mixed. Most are holding out hope that there is an unwritten agreement that some of the R's on this deal will vote against CONFIRMATION for Owen, Brown, or Pryor.
Some are despondent that D's gave up the right to fillibuster Supreme Court nominees except for ethical improprieties. I agree with the poster who says that the test of this deal is in how quickly Frist moves to a confirmation vote on Owens. If he does so tomorrow, I agree that the R's did not make a deal to vote the magical three down. If not...I hope there is no if not. Frist and Reid are taking a pounding over there BTW.
The Drama's Not Over, for Sure
[Kathryn Jean Lopez 05/23 08:46 PM]
Charlie Schumer on the floor of the Senate right now: "Armageddon has been avoided, and thank God for that."
Saad
[Jonathan Adler 05/23 08:44 PM]
Kathryn, I agree with you that Reid's treatment of Saad was particularly shameful (which is saying something given how some of the nominees have been treated). My only point is that he was certain to be on the list because of the e-mail incident. (I also suspect that some Dems wanted him on the list so Bush couldn't claim credit for nominating the first Arab-American appellate judge.)
About the Deal
[Sean Rushton 05/23 08:33 PM]
Two quick points responding to the moderates’ deal on judicial filibuster: 1. The national center-right coalition opposing judicial filibusters, and the Senate leadership, will continue to push for an up or down vote on every qualified judicial nominee.
2. The fact that Senate Democrats are willing to allow cloture on Owen, Brown, and Pryor indicates that conservative judicial philosophy cannot be considered the basis for a filibuster, or an “extraordinary circumstance.”
RE: Saad
[Kathryn Jean Lopez 05/23 08:32 PM]
Jon, I confess, that Reid FBI file stunt nearly made me want him in as much as I wanted Bill Pryor in.
Deal: Bottom Line
[Jonathan Adler 05/23 08:30 PM]
I have two initial thoughts about the deal. First, if Chief Justice Rehnquist retires at the end of this term, as may expect, and President Bush nominates a mainstream conservative to the court (e.g. Michael Luttig, John Roberts, Michael McConnell), if the Democrats filibuster the deal was made in bad faith. Indeed, the only possible "extraordinary circumstance" if a mainstream conservative were nominated to replace Rehnquist would be clearly documented ethical improprieties.
Second, if any of Bush's nominees had to be thrown overboard, I would have picked William Myers to be among them. In my mind, he is the least impressive of Bush's appellate nominees. As for Henry Saad, his fate was sealed an e-mail he sent disparaging a Senator was inadvertently exposed.
Lindsey Graham & "Nuclear Option"
[Kathryn Jean Lopez 05/23 08:29 PM]
There seems to be multiple interpretations of this deal, even in the Senate.
"AN ASYMMETRIC DEAL"
[Kathryn Jean Lopez 05/23 08:27 PM]
Ramesh Ponnuru weighs in in The Corner. He says, "It looks as though the majority party got taken in this deal."
What is the point of being in the majority?
"In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress"
[Kathryn Jean Lopez 05/23 08:18 PM]
So the Dems are promising right now to filibuster at least one nominee before them, but the Republicans tied their hands vis-a-vis a rule change for the entire 109th Congress?
"It's a shame"
[Kathryn Jean Lopez 05/23 08:16 PM]
not everyone is going to get an up and down vote, Bill Frist is saying now on the Senate floor. What about Meyers and Saad, he says.
Who's the majority leader again?
Reid Just Promised in His Press Conference
[ 05/23 08:13 PM]
to filibuster on Myers.
At Reid Presser Now
[Kathryn Jean Lopez 05/23 08:10 PM]
"Michigan judges are going to be approved--except for Saad, of course."
"Nominees should only be filibustered under extraordinary circumstances."
[ 05/23 08:09 PM]
Besides being annoyed every judge isn't getting a vote, what is extradordinary circumstances? Do we know what that means? Isn't the blocking of "extremists" Brown/Owens/Pryor "extraordinary circumstances" in the minds of Harry Reid, etc.?
"Nominees should only be filibustered under extraordinary circumstances."
[ 05/23 08:09 PM]
Besides being annoyed every judge isn't getting a vote, what is extradordinary circumstances? Do we know what that means? Isn't the blocking of "extremists" Brown/Owens/Pryor "extraordinary circumstances" in the minds of Harry Reid, etc.?
THE DEAL--TEXT
[Kathryn Jean Lopez 05/23 08:06 PM]
MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS
We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.
This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.
We have agreed to the following:
Part I: Commitments on Pending Judicial Nominations
A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).
B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).
Part II: Commitments for Future Nominations
A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.
B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.
We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.
We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.
Winners & Losers
[Kathryn Jean Lopez 05/23 07:52 PM]
"The Senate won and the country won." (I think that was McCain...I wasn't looking at the screen.) Oh please.
Reax, based only on Press Conference
[Kathryn Jean Lopez 05/23 07:48 PM]
Damn, a deal. The nonsense that this would hurt the Senate is silly--the Senate is hurt by the nonsense the Dems have pulled. And some kind of record has to show that--the NR history of the world, if nothing else.
But, that said, the Dems have invested so much in making Janice Rogers Brown, Priscilla Owen & Bill Pryor "extremists" that you gotta imagine people in People for the American Way offices are swearing right now.
Filbustering
[Kathryn Jean Lopez 05/23 07:45 PM]
according to the agreement, will only happen in "extraordinary circumstances."
Agreeing (this and the following posts are based on the presser)
[Kathryn Jean Lopez 05/23 07:43 PM]
to vote for cloture on Rogers Brown, Owen, Pryor...
Totally Overly Dramatic
[Kathryn Jean Lopez 05/23 07:42 PM]
intro from John McCain....about the damaging impact the rule change would have had.
Republicans Who Dealed
[Kathryn Jean Lopez 05/23 07:39 PM]
McCain, DeWine, Snowe, Warner, Graham, Collins (update: chafee who is not present)
A Compromise Is Happening
[Kathryn Jean Lopez 05/23 07:25 PM]
(Accord to FNC)
Wassup with Warner
[Kathryn Jean Lopez 05/23 06:24 PM]
Hearing rumors of him going along with a deal. But people have to talk about something, so take that with a grain of salt. I'm told he's speaking on the Senate floor at 8 tonight.
Ruining Lunch Plans the Country Over
[Kathryn Jean Lopez 05/23 06:20 PM]
Ok, not quite, but a cloture vote is now set for noon tomorrow
Looong Night Ahead
[Kathryn Jean Lopez 05/23 05:54 PM]
{16:48:24 NSP} (MR. BURNS) { NOT AN OFFICIAL TRANSCRIPT }
MR. BURNS: MR. PRESIDENT, I ASK UNANIMOUS CONSENT THAT THE
MAJORITY LEADER BE RECOGNIZED AT
5:30 P.M. TODAY, PROVIDED
FURTHER THAT FROM 6:00 TO 7:00 THIS EVENING BE UNDER THE
CONTROL OF THE MAJORITY LEADER
OR HIS DESIGNEE, THAT FROM 7:00
TO 8:00 P.M. BE UNDER THE DEMOCRATIC CONTROL WITH TIME
CONTINUING TO ROW ROWE TATE INTO
THE FASHION UNTIL 9:00 A.M.
Kmiec v. Tribe II
[Sean Rushton 05/23 05:20 PM]
Here is another round of debate between Professor Tribe and Professor Kmiec. Tribe is here: Professor Kmiec’s response below:
Professor Tribe and I continue to disagree, in friendship and with respect, over whether the filibuster is appropriately aimed at judicial nominations. He thinks it is; I do not.
Like the superb lawyer and scholar that he is, Professor Tribe marshals counter-evidence or interpretation that is important to consider as Senate process is evaluated, but let me suggest that what should not be lost is the substance over which we share common ground: those appointed to the federal judiciary should have integrity, a clear understanding of the separation of powers in a democratic republic, and the character and stamina to honor both. Judges ought not be in service of partisan agendas. Likewise, I would suggest, judges should be sufficiently restrained in demeanor not to indulge the practice of disallowing the policy choices of the people's representatives that the Constitution does not prohibit.
On matters of process, I note that Professor Tribe does not specifically refute earlier argument that the filibuster applied to judicial nominations can result in harm to executive and judicial branch. With respect to the executive, the framers in convention were most concerned with allocating appointment authority in a manner that would promote public accountability. The president was given a slight edge (the power of unfettered nomination and the qualified power of ultimate appointment following advice and consent) since, as the Supreme Court would later observe: "the Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism" than the Senate." The founders especially did not want the process to be dominated by, as Nathaniel Ghorum put it, "intrigue and cabal," and that was thought more likely to affect the political bargaining of a legislative assembly than the discernment of a single person. Gouverneur Morris thus sums the Constitution's allocation of appointment authority in favor of the president succinctly: "as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security."
Now, of course, the question is how much security is too little and how much would be too great. Too little security from the Senate would not avoid the patronage aspects of appointment that might infect a presidential choice, and too much power lodged in the Senate would invite Senate domination of appointment which would represent the obfuscation or diffusion of responsibility that the framers wished to avoid. The framers especially wanted to avoid legislative bargaining that would ignore the intrinsic qualities of each candidate - or as Hamilton put - the sentiment that says "give us the man we wish for this office, and you shall have the one you wish for that." Hamilton's words resonate hauntingly since the idea of legislative compromise over the past weeks has been just that: "will give you Brown, but not Owen" or even worse, "you can have two or three of yours, but not seven or ten."
My colleague in constitutional teaching Professor Tribe concedes that Federalist 77 extols the virtue of "submitting each nomination to the judgment of the entire branch of the legislature" - what Dr. Frist might call the wisdom of an "up or down vote" - but then curiously deduces from that a minority of the Senate can frustrate the "entire branch" from addressing the question at all. The one does not follow from the other. Far from supporting the notion of a minority generally determining the fate of appointments, Hamilton anticipated that Senate disapproval would be limited to where there was "special and strong reasons for refusal." It is simply not conceivable that the framers would have applauded a filibuster device applied to judicial nominations that would invite the Senate to globally impede, rather than being a check, as Hamilton wrote, of "in general, a silent operation."
So, then, how did the framers believe too little "security" would come from the Senate? Precisely by empowering less than the whole body to pass upon an appointment. Hamilton in Federalist 77 was especially outspoken against small councils of appointment, since they would not be "large enough to preclude a facility of combination. . . .[E]ach member will have his friends and connexions to provide for, the desire for mutual gratification will beget a scandalous bargaining of votes and bargaining for places." Now, to be sure, the colonial councils of appointment being referenced are different than the larger minority operating under a filibuster, but here I hope Professor Tribe and I can find additional agreement.
I am critical of the filibuster for denying the entire Senate its constitutional role. In his earlier rebuttal, Professor Tribe challenged me to acknowledge "the myriad ways in which presidential nominations of judges . . . have .. .been suffocated in the cradle and never permitted to reach the floor at all." To my colleague and friend, I say, "amen." I have no brief in support of either Democrat filibusters that prevent the entire Senate from exercising its judgment or Republican committee practices that deny hearings or refuse to bring candidates to the floor that have the same effect. Both are constitutional defaults. The default comes in the sacrifice of accountability, or what is popularly termed, transparency. Filibusters denying full floor action and "committee cradle suffocations" of nominees both dangerously - as Hamilton warned - "shut up in private [and make] impenetrable to the public eye,..."
Professor Tribe argues, if the full body of the Senate should vote, why not require more than a majority for approval? This, however, goes to the other extreme and raises the issue of too much security. It also disregards a constitutional text that demonstrates a founding generation that knew how to provide for super-majority requirements when they were intended. Simply imposing the non-textual super-majority approval requirement of the filibuster, as discussed above, fundamentally changes the particular nature of the appointment allocation that is part of the Constitutional design. The framers considered and rejected in the convention a 2/3ds Senate concurrence for judicial appointments. It is fair to conclude that they believed such would undermine the assignment of responsibility - and hence, accountability - for appointment; a super-majority requirement would only aggravate the cabal-like, bargaining behavior thought unsuitable to weigh the merits of judicial candidates. What was needed to defeat a nomination? The lack of a majority. "If the Senate be divided, no appointment could be made." Federalist 69. It was that simple. It was that important.
In all this, I have said little about the damage to the judicial branch posed by the judicial filibuster, but perhaps that is too obvious to need great elaboration. Certainly, long-standing vacancies in the face of expanding dockets mean a failure to address the life, liberty and property in litigation. Beyond this, other scholars have often reinforced the framers concern that when a minority of the Senate can delay or obstruct a fully capable nominee by reason of partisan or ideological disagreement, there is the greater likelihood of a "faction," as Madison would have called it, eroding the independence of the judiciary.
A few final words. Professor Tribe more or less concedes that senior members of the Senate, such as Senator Byrd (D-W. Va) and Senator Schumer (D-NY), have acknowledged the power of a majority of the Senate to change its rules, including its cloture rules, by majority vote, though he implies that somehow, these members now believe that since this was not done "at the beginning of a new Congress," the Senate is estopped to adopt new rules or otherwise interpret existing cloture rules as inapposite to judicial nominations. I know of no support for this timing limitation, though I admit orderliness and good administration would commend it. The constitutional text is clear: "Each House may determine the Rules of Proceedings, . . ." Article I, section 5. The power is plenary and available. And as Senator Byrd, as recently as today, confirmed, the power of a majority to close debate existed from the time of the first Senate. In Senator Byrd's own words: "The rules adopted by the United States Senate in April 1789 included a motion for the previous question . . . the previous question allowed the Senate to terminate debate. 'Mr. President, I move the previous question.' Or in the House, 'Mr. Speaker, I move the previous question.' And if that gains a majority, no further debate-the previous question will be voted on."
The time for closing debate on these long-pending judicial nominations is at hand. The Senate majority should do so, not to "automatically confirm" anyone, but to decide, consistent with the historic understanding of the Senate's "advice and consent" duty, whether the men and women nominated merit appointment not because they are our fellow partisans with respect to one policy or another, but because they understand the nature of the judicial role and the rule of law.
Re: Brown and Originalism
[Gerard V. Bradley 05/23 05:18 PM]
Asking whether originalism can give you the result of Brown v. Board of Education is a bit of a trick question--and the trick is Brown itself. Brown launched constitutional law on a trajectory aimed at the conclusion that the Court is supreme expositor of the Constitution, that what the Court says and what the Constitution means are pretty much the same thing. Cooper v. Aaron, the 1958 decision smacking down Governor Faubus's resistance to Brown, was central to this development. Asking about Brown and originalism now--that is, without questioning this type of judicial supremacy--is to ask whether the judiciary was authorized by the Fourteenth Amendment to strike down segregated public schools. The answer to this question is: hard to say; the historical evidence does not permita confident answer either way. But those who wrote and ratified the Fourteenth Amendment were not judicial supremacists of the Cooper variety. They surely meant for Congress--and not the Court--to be the main guarantor of the rights against hostile state action vouchsafed in section one of the Amendment. That is why the Amendment includes an express grant of enforcement authority to Congress (in section five), and leaves the judicial enforcement role to implication. The question which originalists should want to answer about Brown, then, is this: did the ratifiers of the Fourteenth Amendment understand that the enforcement power which they gave to Congress included the power to order states to desegregate public schools? The answer to this question is "yes", as the debates in Congress over the civil-rights laws during Reconstruction (among other things) make abundantly clear.
Eartjhustice and Justice Owen
[Jonathan Adler 05/23 04:28 PM]
Glenn Sugameli of Earthjustice believes that I have misrepresented their critique of Justice Owen. He raises two points. First, he points out that Earthjustice has produced substantive analyses of some of Justice Owen’s opinions so it is unfair for me to suggest otherwise. Writes Glenn, “Earthjustice always provides and posts on our website a detailed analysis of the legal merits of any judicial nominee's opinions that we criticize.” Second, he believes I mischaracterized the issues in the FM Properties case. Let me address each point.
First, Glenn is correct to note that Earthjustice has produced some lengthy analyses of Justice Owen’s record (see, e.g. here). Nonetheless, I believe it is fair to characterize Earthjustice’s analyses as result-oriented and misleading. The language used to promote the various reports and critiques -- that a given justice is "anti-environment," or favors "special interests over public health and ordinary citizens," etc. -- furthers the perception that judges should be evaluated based upon the identities of the winners and losers or the policy implications of specific cases, not the legal merits of the claims at issue. Glenn objects that some of these characterizations appear in material distributed by the Alliance for Justice, and not Earthjustice itself. True, but last I checked Earthjustice is a member of the Alliance for Justice. And while Earthjustice may “always” always provide detailed analyses of opinions they criticize, they’ve certainly gone after various nominees, such as Miguel Estrada and Henry Saad, without providing much analytical support.
Second, Glenn is correct to note that there is a distinction between delegations to administrative agencies (which are routinely upheld) and delegations to private entities. FM Properties concerned the latter, and environmental groups have typically been staunch defenders of the former. I didn’t note this distinction in my article due to space concerns (though I did in my prior Owen piece). In any event, I don’t think this undermines my point that the criticism of Justice Owen here has little to do with the doctrinal merits or any alleged “activism,” but rather with the end result. Environmentalist groups didn’t like the statute at issue in FM Properties, so they attack Justice Owen’s vote not to strike it down and use it as a basis to oppose her confirmation. Moreover, Earthjustice continues to distribute various fact sheets that distort the legal issues at stake. This one, for instance, suggests that Justice Owen would have “exempted big business from municipal clean-water safeguards,” when it was the statute passed by the legislature that created the exemption. As Justice Owen explained in her dissent, it is not unconstitutional for a state to exempt qualified private landowners from state-authorized local regulation. Whether such exemptions are wise policy is a decision left to the state legislature, not state courts.
Did Dems Go Too Far?
[Jonathan Adler 05/23 11:46 AM]
Robert Novak has some insights on the filibuster fight. Among other things, he suggests that if the Dems had filibustered fewer of Bush’s nominees, they would have a much easier time preventing the rule change to eliminate the judicial filibuster.
Abortion & the First Scotus Opening
[Kathryn Jean Lopez 05/23 11:35 AM]
If you weren't already convinced the confirmation hearings would be largely about abortion, here's more reason they will be.
Filibuster Reform and Presidential Politics
[Sean Rushton 05/23 11:33 AM]
The Des Moines Register reports Iowa conservatives are warning Republicans that judicial filibuster reform will be an issue at the next presidential caucus. There is an effort now to get similar warnings from GOP leaders in other major primary states.
A Postscript on Brown and Originalism
[Edward Whelan 05/23 10:28 AM]
In my NRO essay on Brown v. Board of Education and originalism, I outlined originalist arguments by Michael McConnell and Robert Bork in support of the result in Brown. I also observed that the Left has no real interest in exploring the merits of these originalist arguments because its overriding interest is in using Brown’s supposed incompatibility with originalism to discredit originalism. Yale law professor Jack Balkin continues to provide ample evidence in support of my observation.
I will not drag the hapless reader through the back-and-forth of Balkin’s critique of my essay, my response to his critique, and his comments on my response. (His comments are appended to his critique as an “update”.) I will instead focus on the big picture.
My essay did not purport to present my own scholarship but instead sought to draw attention to two serious originalist arguments that others have made. The primary originalist argument that my essay presented is that the original understanding of the Fourteenth Amendment was that segregated schools were unconstitutional. That argument was made most forcefully ten years ago by Michael McConnell and is consistent with the 1880 Strauder decision and Justice Harlan’s famous dissent in the 1896 Plessy ruling.
As I pointed out in my response, Balkin’s critique provided an inaccurate and anemic summary of McConnell’s argument and presented a supposedly unanswerable objection that McConnell had in fact refuted ten years ago. In his update, Balkin offers not a word of explanation or defense for his mistreatment of McConnell’s argument. Instead, his core argument is his irrelevant charge that I do not adequately understand the history of the post-Civil War amendments.
I will readily concede that Balkin knows far more about the history of these amendments than I do. But despite his effort to pitch the contest as being between himself and me, the relevant question is whether he understands that history--and the proper treatment of that history in originalist methodology--better than McConnell. Perhaps he does. But the fact that he has yet to answer McConnell provides little reason for confidence in his judgment.
The second originalist argument that my essay presented is Robert Bork’s argument that by the time of Brown any assumption by the framers that segregated schools were compatible with the Fourteenth Amendment’s original meaning of establishing racial equality under the law was no longer tenable. Balkin’s critique contended that Bork’s argument “isn’t actually originalist,” and my response explained why Balkin was wrong. Again, all that Balkin’s update provides is a misdirected attack on my knowledge of the history of the post-Civil War amendments.
Balkin’s misstatements continue in his update. He asserts that I base my argument on the “plain language” of the Fourteenth Amendment and purports to quote me twice as to what that amendment “plainly” says. But the originalist arguments that I present are not “plain meaning” arguments, and the only time I use “plain” or “plainly” in either of the two essays is in presenting McConnell’s point that Balkin’s reliance on racism in public opinion at the time of ratification should also compel him to conclude “that the Fifteenth Amendment doesn’t mean what it plainly says.”
I have no doubt that Jack Balkin is very smart and learned. Given his intelligence and knowledge, his failure to address squarely the originalist analyses of McConnell and Bork lends additional support to my thesis that non-originalists on the Left are not really interested in exploring whether the result in Brown can be reconciled with the original meaning of the Fourteenth Amendment but instead prefer to use Brown as a weapon against originalism.
"Unequivocal Support"
[Kathryn Jean Lopez 05/23 09:29 AM]
Sean, here's a new letter, too, from DOJ on the AG & Owen.
Gonzales & Owen
[Sean Rushton 05/23 09:27 AM]
On Friday at the National Press Club, Alberto Gonzales again once again addressed whether he accused Priscilla Owen of “unconscionable judicial activism”:
MODERATOR: Opponents of Priscilla Owen have time and time again quoted a particular Texas case when you and she were both on the Supreme Court. And people in the White House have said that it's been taken out of context, the quote that was used. I wanted to give you a change to explain both what you wrote in the context current debate.
GONZALES: There's a lot of misinformation about this. It's rather difficult to explain in a short sound byte. And, therefore, people choose to ignore the explanation--or choose to ignore the fact that I fully support Judge Owen. I would not have recommended her to the president if I didn't fully support her.
She and I did serve together on the court for a period of two years. And the quote that is my quote comes from an opinion I wrote in connection with the parental notification case. The Texas legislature passed a parental notification was in connection with abortions involving minor daughters I believe in 1999 or 2000.
And the legislature didn't make the parental notification right absolute. They provide an exception, that is that you could go to a court and get a judicial bypass if you could how three things. And one of the things that the Texas legislature said would be an exception to having provide notice to a parent, was if the minor could show a judge that she was mature and sufficiently well-informed--mature and sufficiently well-informed.
And so it fell upon the Texas Supreme Court to try to give meaning to those words. What did the Texas legislature intend when they said that as a matter of policy if a minor could show that she was mature and sufficiently well-informed she could receive a judicial bypass.
And so it was a case involved statutory construction. I looked at the case, looked at the way the statute was constructed and made a decision that the legislature intended that exception, that bypass to be a meaningful one, to be a real one. And to construct the statue in a way that didn't respect that legislative decision, I felt, would be an act of judicial activism.
GONZALES: I was referring to my own interpretation of the statute. I was not referring to the writings or the positions of other judges on the court who wrote in dissent in that particular case. I have made this position quite clear, under oath, in connection with my confirmation hearings.
As an initial matter, I didn't give this explanation when Judge Owen was first nominated because, quite frankly, I have a problem with judges describing the deliberative thought processes, quite frankly. And I just didn't think it was appropriate. And therefore, as an initial matter I took the position: Look, judges disagree all the time on cases. The fact that I disagree with Judge Owen on this case or other cases takes away in no way from my own views that she is well-qualified and deserves to serve on the 5th Circuit.
That's I hope a helpful explanation of the words that I used in that particular statute. Again, it was referring to the way that I interpreted legislative intent based upon the words used in the statute, based upon the framework of the statute, that judicial bypasses had to mean something and that for me to ignore my interpretation of the statute would be an act of judicial activism on my part.
Not Activist Enough
[Andy McCarthy 05/23 09:21 AM]
Jon Adler hits the nail on the head. A must-read to grasp what's at stake in the Own confirmation battle, and the battle over confirmations in general.
May 22, 2005
Democrats Still Hiding From Vote on Mainstream Nominees
[Wendy Long 05/22 08:51 PM]
Here's a short column I wrote for today's Philadelphia Inquirer on how Justice Owen, Justice Brown, and the President's other nominees are the ones who are really "mainstream." The liberal Democrats are the ones who are outside the American mainstream, which is why they are hiding from a vote -- not filibustering for more time.
Short Memories
[Jonathan Adler 05/22 08:50 PM]
TAPped's Jeffery Dubner finds it absurd that Republicans complain about the blocking of Bush's judicial nominees because Senate Republicans blocked and delayed some of Clinton's. Yet neither Dubner nor his colleagues ever makes mention of the Democratic obstruction of Reagan and Bush I nominees. No, I'm not just talking about Bork and other defeated nominees. Rather, there are plenty of individuals who were nominated and stalled by the Democratic Senate, including John Roberts and Terrence Boyle, both of whom were first nominated by the first President Bush, and both of whom were refused votes in the Democratic Senate. It's great that the Left now believes that "It is completely unfair to those who want to serve their country to have to wait months or even years without knowing if they will have a job or not." It's too bad that Senate majorities have not treated nominees of another party's President that way for the past 20 years.
And This Tells Us What, Exactly?
[Matthew J. Franck 05/22 08:48 PM]
Dozens of the nation's newspapers probably carried a story I saw in my local rag yesterday morning, an Associated Press story about its own AP/Ipsos poll (PDF file) on people's attitudes about the judiciary and judicial appointments. Here's the lead in the story linked above, by Will Lester of AP: "About four in five Americans want the Senate to thoroughly examine the president's nominees to be federal judges . . ." In our local paper, we got this alternative lead: "More than three-quarters of Americans say the Senate should aggressively examine federal judicial nominees and not just approve them because they are the president's choices."
Either way the story is introduced, it folds neatly into the Senate Democrats' playbook. You can count on Democratic senators to recite this "fact" as though it were decisive in favor of their filibuster strategy. And the AP can, with a perfectly straight face, say that it put no spin on its own poll, asked no "slanted" question, and published a story with no intent to help or harm either side in the Senate debate.
Okay, let's look at the question AP asked, and the responses it got:
As you may know, the president nominates federal judges, but the appointments must be approved by the U.S. Senate. Do you think the Senate should:
Give the president's judicial nominees the benefit of the doubt and approve them without a lot of scrutiny: 18%
Take an assertive role in examining each nominee: 78%
Not sure: 4%
The set-up before this question is asked consists of three questions about how conservative or liberal respondents think judges are, how conservative or liberal they'd like Pres. Bush's nominees to be, and how much they trust him to make the "right kind" of appointments to the bench. In themselves, these are pretty worthless questions, especially the two about judicial ideology, which give respondents no chance to say that judges, as judges, really ought to have no ideological leanings at all. And they completely fail to provide any context for the question that became the headline result of the poll. When respondents are asked the question above about the Senate's role in judicial appointments, they have been given no contextual information about the months and years of filibustering in which Democrats have engaged, or about the fact that all the filibustered nominees have been "examined" already in hearings by "assertive" senators on both sides, or about the fact that all the nominees currently blocked by the Democrats have the support of the majority of the Senate.
In short, the poll asks respondents to choose, in a context-free environment, between an alternative that no political leader is advancing (that the Senate simply rubber-stamp judicial nominations in deference to the president), and an alternative that no political leader is against (that the Senate fulfill its responsibility to exercise its independent institutional judgment on the nominations). The only news in this poll is that AP/Ipsos could find 18% of a random sample of Americans to sign on to the stupid proposition that senators be slackers.
So why did AP task its pollsters to ask a question that yields no useful information? And why did it send out a wire story leading with the results of that one question, the most worthless one in the poll? The most natural answer seems to be that the poll and the story give Democrats some fresh talking points going into Tuesday's cloture vote.
A Helpful Reminder from the New York Times
[Richard W. Garnett 05/22 10:41 AM]
An editorial in today's Times provides a sobering reminder to anyone tempted to believe that the hard-left (to adopt Sen. Schumer's way of speaking) interests driving the ideological opposition to President Bush and his judicial nominees have any real interest in compromise.
According to the Times, "[i]t is encouraging that moderates from both parties are trying to work out a compromise. But they should agree only to one that does not make unacceptable concessions on Senate procedures and does not lead to the appointment of unqualified, ideologically extreme judges." Hmmm. One wonders what it is, exactly, that is "encouraging" about the efforts of the "moderates", since they all appear to have conceded--implicitly, at least--that the practice of the Times and the extremists among the Senate Democrats of slandering the president's nominees as "unworthy," "hard-right ideologues" is just so much nonsense. It's an interesting move, actually: The Times purports to desire compromise, but only if it results in (a) continuation of the Democrats' unprecedented and unjustifiable abuse of the filibuster and (b) continuation of the practice of demonizing jurists who dare to think differently about the Constitution and the law than those who advise the editorial writers for the Times.
