Planning the Senate Calendar
[Edward Whelan  06/10 02:53 PM]

Here’s the timetable that the Senate adopted for action on Ruth Bader Ginsburg’s nomination in 1993:

Nomination June 22, 1993

Hearing July 20, 1993 (exactly four weeks from the date of nomination)

Confirmation (96-3) August 3, 1993 (exactly six weeks from the date of nomination)

In the event of a vacancy this summer, the Senate should confirm a Supreme Court nominee at least as rapidly. First, no conceivable nominee will have the record of extremism that nominee Ginsburg had, but will instead surely display a much more sound understanding of the role of judging in a constitutional republic. Second, Ginsburg was altering the previous balance of the Court by replacing Justice Byron White, an opponent of much of the Court’s liberal activism (including Roe). No matter which Justice were to step down, no nomination this summer would have a greater effect on the previous balance of the Court than Ginsburg’s did -- and, of course, in several scenarios the likely effect would be minimal or nil. (I don’t think considerations of previous “balance” ought to play any role in the confirmation process, but, for those who do, that’s how they cut.)

And, of course, a rapid confirmation will enable Senate Democrats to get to all the other important work that they say they’re so eager to do (and that their judicial filibustering has been blocking).

RE: RE: Anti-Pryor Votes
[Edward Whelan  06/10 12:32 PM]

Jonathan, thanks for clarifying. I would be pleased to reach agreement on the terms you propose. Thanks for your successful mediation.

Collins on Pryor
[Edward Whelan  06/10 12:31 PM]

Here’s the Washington Post on Sen. Collins’ explanation for her vote against Pryor (as opposed to her votes for Owen and Brown):

Collins said in a statement that she was worried about Pryor's temperament and "respect for the judicial system." She noted that he once said of a Supreme Court death penalty ruling, "This issue should not be decided by nine octogenarian lawyers."

Some have wondered whether Collins wasn’t really figuring that many Maine voters would welcome a vote against someone who was both a Southern white male and a devout Catholic. (The fact that Collins herself is Catholic would not weigh decisively against, and might even weigh in favor of, such a calculus.) So it’s good to hear a reason that doesn’t indulge racist, sexist, and religious prejudice.

But how good is Collins’ stated reason?

A proper respect for the judicial system must be reconciled with a proper respect for the power of American citizens to exercise their rights of self-governance. When judges overstep their bounds, political officials (Pryor was Alabama’s attorney general at the time of his comment) have an obligation to respond with vigor. Pryor himself acknowledged this his particular phrasing was “overheated political rhetoric,” but that is a far more minor offense than that of our many senators who celebrate or acquiesce in judicial power grabs.

Thomas the Orginalist for Chief!
[Kathryn Jean Lopez  06/10 11:51 AM]

Charles Krauthammer today:

I hope President Bush nominates Thomas to succeed Rehnquist as chief justice, not just because honoring an originalist would be an important counterweight to the irresistible modern impulse to legislate from the bench but, perhaps more importantly, to expose the idiocy of the attacks on Thomas that will inevitably be results-oriented: hostile toward women, opposed to gun-free schools . . . and pro-marijuana?

Coincidence?
[Kathryn Jean Lopez  06/10 10:11 AM]

Readers notice that the online version of the Pryor profile in the NYT is sponsored by Kinsey on DVD.

RE: The Timpanist
[Kathryn Jean Lopez  06/10 08:33 AM]

Jon, maybe it's selective memory on my part, but do you remember reading a graph like this in the New York Times prior to Pryor's confirmation (emphasis mine)?

But Mr. Pryor was careful not to take his conservative activism too far. He was successful in overturning a federal order barring student-led prayer in Alabama's public schools, yet rejected the argument of Mr. James, the former governor, that teacher-led prayer was acceptable because the Bill of Rights did not apply to the states.

Pryor Was a Timpanist
[Jonathan Adler  06/10 08:32 AM]

The NYT has a fair profile of Bill Pryor here.

RINO Watch
[Jonathan Adler  06/10 08:29 AM]

From today's NYT:

Other lawmakers pointed to the fact that Judge Pryor lost the votes of three moderate Northeastern Republicans, Susan Collins and Olympia J. Snowe of Maine and Lincoln Chafee of Rhode Island, as a signal to President Bush that he should be careful in pushing conservative nominees not acceptable to all in the Senate majority.

Judge Cabranes
[Jonathan Adler  06/10 08:28 AM]

Rumor has it Second Circuit Judge Jose Cabranes was passed over for the Supreme Court because Hispanic groups did not think he was liberal enough. Justice Breyer got the nod instead. Now some folks would like to see President Bush nominate Judge Cabranes to the Supreme Court. Not likely. As one of his supporters laments: "He's the kind of judge that Democrats wish Republicans would nominate and Republicans wish the Democrats would nominate--which probably means he won't be nominated."

RE: Anti-Pryor Votes
[Jonathan Adler  06/10 08:27 AM]

Ed, I think you and my correspondent may actually agree. Yes, Judge Pryor understands that the Constitution doesn't speak to abortion one way or the other, and recognizes the irrelevance of his personal views to the practice of judging. The point is that many of those who voted against him do not. Because they believe that judges will, and perhaps even should, decide cases in accordance with their personal political views, they are uncomfortable with nominees who express pro-life views in strong terms.

There Was Champagne
[Kathryn Jean Lopez  06/10 05:39 AM]

in Birmingham

Re: Anti-Pryor Votes
[Edward Whelan  06/10 05:37 AM]

Jonathan's correspondent is overlooking a critical point. No matter how much Pryor deplores abortion, his view that the Constitution does not speak -- one way or the other -- to the matter means that (if he were free to disregard Supreme Court precedent) his views would have the same weight as any other voter's. He understands, in other words, what it means to be a citizen in a constitutional republic. Those who would maintain Roe don't.

"Profile of Potential Supreme Court Nominee - Senator John Cornyn"
[Kathryn Jean Lopez  06/09 07:51 PM]

Who knew?

Breaking Out the Champagne on 1600 Penn Ave.
[Kathryn Jean Lopez  06/09 06:49 PM]

STATEMENT BY THE PRESIDENT

I am pleased that the Senate voted today to confirm three distinguished and highly qualified judges to the United States Court of Appeals: Judge Bill Pryor, Judge Richard Griffin, and Judge David McKeague.

More than a year ago, I recess appointed Judge Pryor to the United States Court of Appeals for the Eleventh Circuit to fill a vacancy that had been designated a judicial emergency by the Judicial Conference of the United States. Judge Pryor's recent service on the Eleventh Circuit has built on an impressive career of public service in which he has applied the law fairly and impartially to all people. I commend the Senate for fulfilling its constitutional responsibility to vote on Judge Pryor and for confirming him so that he will continue his service on this court.

Both Judge Griffin and Judge McKeague have served on the Michigan courts for more than a decade, during which time each has demonstrated a strong commitment to the rule of law. Both are well qualified to serve on the United States Court of Appeals for the Sixth Circuit and will fill vacancies that have been designated judicial emergencies by the Judicial Conference of the United States.

These three nominees have waited a combined total of over eight years for their votes. I applaud the Senate for today giving these fine nominees the up-or-down votes they deserve.

Pryor Hearing
[Kathryn Jean Lopez  06/09 06:12 PM]

Hey, Adler, wanna watch the hearing? He would not give them an inch and they hated it.

I have it on DVD. All the cool kids do. Southern Comfort for all.

(P.S. I was joking. Not about his performance, however.)

Two More
[Jonathan Adler  06/09 06:10 PM]

The Senate voted unanimously to confirm Griffin and McKeague to the Sixth Circuit.

Re: Anti-Pryor Votes
[Jonathan Adler  06/09 06:09 PM]

My correspondent defends his position:

I don’t disagree with Ed Whelan lightly, but I’m sticking to my guns. Pryor did more than simply call Roe/Casey a legal travesty (though Ed is right that overruling those decisions would not render abortion unlawful, but simply would return the issue to the democratic arena where it could be resolved on a state-by-state basis, or perhaps by Congress). Pryor also lamented the consequences of Roe/Casey – viz., millions of slaughtered unborn children. I think that’s almost an exact quote. So Pryor was not simply deploring the Supreme Court’s abortion jurisprudence an arrogation of a power that properly belongs to legislatures. He was signaling his views on the underlying policy question. That’s the sense in which Pryor’s nomination can be said to have implicated the core issue of the lawfulness of abortion.

Griffith
[Kathryn Jean Lopez  06/09 06:09 PM]

Frist just said on the floor that:
“I ask that at 2:30 p.m. Monday, June 13, the Senate proceed to the Griffith Nomination as provided under the order. Provided further that following the use or yielding back of time, the Senate resume legislative session and the vote occur on the confirmation of the nomination at 10:00 a.m. on Tuesday, June 14.”

The chair said: “without objection.”

The Three
[Mark R. Levin  06/09 05:26 PM]

I am aware of no doctrinal difference among Owen, Brown and Pryor over abortion. And abortion was certainly an issue in the Owen debate, and is an underlying issue in all of this.

Pryor Vote Tally
[Jonathan Adler  06/09 05:14 PM]

The final vote tally is here. Three Republicans voted against Pryor: Chafee, Snowe, and Collins. One was a no show: Murkowski. Two Dems voted for Pryor: Nelson and Salazar. The lone "Independent" Senator did not vote.

RE: Anti-Pryor Votes
[Edward Whelan  06/09 05:03 PM]

Jonathan, your correspondent incorrectly states that “Pryor's nomination presented, full-frontal, the core issue of whether abortion should be permitted.” Even apart from the fact that Pryor’s confirmation is to the court of appeals, overturning Roe would not mean that abortion would not be permitted. It would mean only that the judiciary’s unconstitutional power grab on the abortion issue would end, and the people would decide through their legislators what abortion policy should be.

The Three
[Shannen Coffin  06/09 05:01 PM]

We can all continue to dissect who won and who lost in the McCain Mutiny, but the recent confirmations of Bill Pryor, Priscilla Owen and Janice Brown are a testament to the President's determination to see his appointments through and to the intestinal fortitude of these three fine judges for surviving the slings and arrows of a very drawn out confirmation process. Congratulations to them all.

Explaining Anti-Pryor Votes
[Jonathan Adler  06/09 04:53 PM]

A Washington, D.C. lawyer e-mails:

Collins and Snowe both voted against Pryor, didn't they? Abortion explains those votes. Pryor is on record calling Roe the greatest abomination in the history of constitutional law, and both Maine Senators are committed to preserving Roe. The reason they could support Owen, but not Pryor, is because the Owen nomination involved an issue at the margins of the abortion debate -- parental notification. (I'm not sure, but Collins and Snowe may well support parental-involvement laws themselves.) Pryor's nomination presented, full-frontal, the core issue of whether abortion should be permitted.

Judiciary Cmte Update
[Kathryn Jean Lopez  06/09 04:52 PM]

Just in: "Boyle and all noms on the committee agenda today, held over until next week."

NARAL Congratulates Bill Pryor & President Bush
[Kathryn Jean Lopez  06/09 04:49 PM]

Well, ok, maybe not quite:

Washington, DC – NARAL Pro-Choice America President Nancy Keenan issued the following statement in response to the U.S. Senate’s confirmation of William Pryor to the 11th Circuit Court of Appeals:

“With the confirmation of William Pryor to a lifetime seat on the federal bench, the far right wing of the Senate is now three for three, demonstrating its willingness to rubberstamp President Bush’s most divisive and controversial nominees. The confirmations of Priscilla Owen, Janice Rogers Brown, and now William Pryor send a clear message that the concerns of mainstream Americans are not shared by the radical right leaders who run the Senate.

“William Pryor is a long-time outspoken anti-choice activist, so far to the right that he even opposes legal abortion for survivors of rape or incest. He has supported unconstitutional bills when they have agreed with his personal opinions on a woman’s right to choose. Pryor’s extreme views on a number of important issues, in addition to reproductive rights, do not reflect the values of a majority of Americans.”

Carl Levin
[Kathryn Jean Lopez  06/09 04:45 PM]

is complaining about a hold-up on a sixth-circuit judge nominee, Helene White. As is his form, he didn't mention she's a relative of his, making her worth fighting for.

Meanwhile, Elsewhere in the Senate
[  06/09 04:39 PM]

A Senate source reports that the Judiciary committee is continuing a meeting from this morning in the president's room, off the Senate floor. They're talking about nominations....

Revisionist History
[Jonathan Adler  06/09 04:32 PM]

Senator Debbie Stabenow is now speaking in support of confirmation of the two Michigan nominees, and claimed that she and Senator Carl Levin have both wanted to move forward with these nominees for some time. Yet both would have been confirmed long ago had the Michigan Senators not stood in their way.

RE: Pryor Wins
[Jonathan Adler  06/09 04:29 PM]

Now the Senate is moving on to consideration of David McKeague and Richard Griffin, both nominees for the U.S. Court of Appeals for the Sixth Circuit.

Collins
[Mark R. Levin  06/09 04:28 PM]

What on earth could be Collins's rationale for voting for Owen and Brown but not Pryor? I wasn't aware there was much difference among their originalist approaches.

53-45
[Kathryn Jean Lopez  06/09 04:27 PM]

Pryor confirmed! Miracles happen even in the Senate.

More Pryor Votes
[Jonathan Adler  06/09 04:21 PM]

Democratic Senator Ben Nelson of Nebraska just voted for Pryor.

Pryor votes
[Jonathan Adler  06/09 04:19 PM]

Senator Specter voted for Pryor, despite their profound disagreement on Roe, but Senators Collins and Chafee both voted no.

TNR on Raich
[Jonathan Adler  06/09 03:55 PM]

The folks at TNR find the dissenting opinions in Raich quite troubling, and use them to warn about the alleged "constitution in exile" movement.

The fact that O'Connor, Rehnquist, and Thomas remain committed to aggressive judicial oversight of Congress's power to regulate the economy suggests that conservative judicial activism is not defeated; it still has powerful allies. Which is why the views of Supreme Court nominees about the Constitution in Exile should be a central question in the confirmation battles to come.

In Touch with My Sensitive Feminine Side
[Andy McCarthy  06/09 03:48 PM]

Aren't Senator Durbin's pieties, er, crashing into each other just a bit here? According to my history book, the Fifteenth Amendment was ratified in 1870. The Nineteenth took another half century. That is, to borrow the senators lingo, "person[s] of color" who were men actually had a 50-year head start on more than half of "white Americans."

I guess the message here is that white men suck, and that's why we need Section 5. According to Senator Durbin, a white man.

Will there ever be a time when this kind of idiocy is no longer part of our politics?

White Americans Don't Get It
[Kathryn Jean Lopez  06/09 03:15 PM]

From a rush transcript of Durbin:

IT IS THEIR BELIEF, MANY OF THEM, THAT THE GOVERNMENT SHOULD RULE ON THESE DECISIONS.n EN OR ITS ISSUE OF VOTING RIGHTS, MR. PRYOR HAS URGED CONGRESS TO TO TAKE STEP IT'S SO UNDERMINE THE RIGHTS OF AFRICAN-AMERICANS TO VOTE. HE URGED CONGRESS TO CONSIDER SERIOUSLY THE REPEAL OF THE AMENDMENT OF SECTION 5 OF THE VOTING RIGHTS ACTS. THIS IS A KEY PROVISION ENCOURAGING EQUAL OPPORTUNITY IN VOTING. IT REQUIRES CERTAIN STATES TO ACHIEVE PREAPPROVAL FOR CHANGING -- CHANGING VOTING RIGHT STANDARDS. IT IS CLEARLY A S. RES. TAJ OF AN AMERICAN IN TRANSITION FROM RACIAL DIVISION OF STKHREUPL NATION TO A MORE OPEN EQUAL POLICY. MR. PRYOR RAISE QUESTIONS AS TO WHETHER THE FEDERAL GOVERNMENT SHOULD CONTINUE TO TRY TO MEET THAT STANDARD. I DISAGREEMENT WITH THIS SENTIMENT. HE CALLED SECTION 5 -- QUOTE -- "AN AFFRONT TO FEDERALISM AND AN EXPENSIVE BURDEN THAT FAR OUTLIVED ITS USEFULNESS." I MIGHT SAY TO MR. PRYOR AND TO OTHERS WHO ARE WHITE AMERICANS THAT WE CANNOT POSSIBLY UNDERSTAND HOW MUCH THIS MEANS, WHAT IT MEANS TO AN INDIVIDUAL TO HAVE THE RIGHT TO VOTE, PARTICULARLY A PERSON OF COLOR, A MINORITY IN AMERICA. AND SECTION 5 IS THERE TO GUARANTEE IT. AS ATTORNEY GENERAL OF ALABAMA, MR. PRYOR TESTIFIED THAT IT HAD OUTLIVED ITS USEFULNESS. I DISAGREE WITH HIS SENTIMENT. THANKFULLY, SO DID THE SUPREME COURT AND MOST MEMBERS OF CONGRESS.

Parsing Ginsburg’s Words
[Edward Whelan  06/09 03:11 PM]

Did Ginsburg propose to abolish Mother’s Day? Or did she merely propose that abolition of Mother’s Day be considered?

Again, here is exactly what Ginsburg proposed--in a section titled “Recommendations”:

Replacing “Mother’s Day” and “Father’s Day” with a “Parents’ Day” should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.

A couple readers have written to suggest that a careful parsing of her language supports only the latter proposition. I won’t dispute that the language may permit this slightly narrower reading, but, for the following reasons, I don’t think that’s the most natural or sensible reading:

1. Ginsburg’s language is included under a heading titled “Recommendations.” I don’t think that she is calling for legislation to require people to consider abolishing Mother’s Day.

2. In context, it is clear that Ginsburg regards Mother’s Day as inconsistent “with a policy of minimizing traditional sex-based differences in parental roles.” The very point of her report was to recommend legislative changes to effect this policy.

3. If someone were to write, say, that “Killing Frenchmen should be considered,” I don’t think that the most natural reading of that proposition is that the writer is neutral on it.

That said, those who want to argue that Ginsburg merely proposed considering the abolition of Mother’s Day (as if that’s a much more modest proposal) are welcome to do so--so long, of course, as they strive to maintain the same unnatural standard of punctiliousness in summarizing the views of those with whom they disagree.

The larger point remains unaffected: By any measure, Ginsburg, at the time of her nomination, had expressed extremist views that placed her at the leftist fringe of American society and, as a justice, has continued that course. Yet notwithstanding views that were far more out of the “mainstream” than even the grossest caricatures of the most vilified of President Bush’s nominees, Ginsburg was confirmed to the Supreme Court, by a 96-3 vote, a mere six weeks after her nomination. And the Left still pretends that she is in the mainstream.

Irony Alert
[Sean Rushton  06/09 03:07 PM]

Beldarblog makes a good point about Durbin’s argument that Pryor does not respect judicial precedent.

Pryor and the Hitching Post Case
[Sean Rushton  06/09 03:05 PM]

Senator Schumer also misrepresented Bill Pryor’s record on the Hitching Post Case. Mobile Register editorialist Quin Hillyer explained on NRO two years ago.

Pryor favors wife beating?
[Sean Rushton  06/09 02:14 PM]

I heard that bit, too, K-Lo. Schumer said Pryor is “opposed to protecting women from being beaten by their husbands” because he views part of the Violence Against Women Act as beyond Congress’s legitimate power. Here's some of what CFJ put out on Pryor and VAWA:

Even in light of his enviable record on women’s issues, General Pryor’s shrill detractors have nonetheless distorted the position he took in an amicus brief in the Supreme Court case of United States v. Morrison, where the Court held that the Violence Against Women Act’s (“VAWA”) civil remedy was beyond Congress’s Commerce Clause powers. General Pryor did not argue that the whole Act was unconstitutional, as some special interest groups have claimed. Rather, the central point of Alabama’s argument was that prohibiting violence against women was absolutely necessary – but that doing so historically has fallen within the domain of state and local governments. Alabama simply argued that state and local officials are better equipped than the federal government to solve the civil justice aspects of the problem of violence against women.

The very day the Morrison decision was handed down, General Pryor reiterated Alabama’s commitment to eradicating gender-motivated violence. He noted, “States have led the way in battling domestic abuse and rape. The safety of women – and men – is best protected by encouraging and strengthening state efforts, not by allowing the states to pass the buck to federal bureaucrats and judges.” Indeed, when VAWA initially was proposed, a number of federal judges and their representative organizations opposed the law for the same reason: its tendency to displace traditional state adjudications. In 1991, the United States Judicial Conference objected to VAWA because it feared the legislation would “flood the federal courts with cases better handled in state courts.” The Judicial Conference is headed by the Chief Justice of the Supreme Court and includes the Chief Judges of thirteen federal appeals courts and a district judge from each of the nation’s twelve geographical federal circuits. Kathryn Coumanis, the Executive Director of Penelope House, knows the truth about General’s Pryor’s record on women’s issues. She had the following to say about him: "The entire Board of Directors of Penelope House Family Violence Center here in Mobile, AL, unanimously asked that I include them in support of this nomination. Attorney General Bill Pryor has been a long time supporter and advocate of Penelope House, and has worked tirelessly to protect women and children from the dangers of domestic violence. . . . When Bill Pryor raises his voice in support of our mission, it enables us to reach every member of our community. . . . Bill Pryor will bring to the Federal Bench the qualities that all Americans cherish. He is loyal to his State and his Country, is a man of princip[le] and integrity, is highly intelligent, and most of all is a man who has immense compassion and respect for his fellow human beings."

Would It Be Wrong to Point Out
[Kathryn Jean Lopez  06/09 01:45 PM]

That many of us say "Please, God, no more Souter" type prayers?

Gee Whiz
[Kathryn Jean Lopez  06/09 01:44 PM]

No wonder some people hate Bush so much. He nominates (and recess appoints) a man who is cool with women being beaten (re: his problems with the Violence Against Women Act). That's the sound of the quality debate from Charlie Schumer on the floor right now.

Dick Durbin, Too
[Kathryn Jean Lopez  06/09 12:57 PM]

Thinks that Pryor has just been lying low. It's been "one year" under "close scrutiny," a "probationary period." It doesn't count. And his record in Alabama as attorney general don't mean nothing to Durbin and co either.

There Go Those White Christians Again
[Kathryn Jean Lopez  06/09 12:52 PM]

On the Senate floor just now, Dick Durbin ran off some of the usual Left talking points on Bill Pryor and the Voting Rights Act (see Sean Rushton on here). Durbin said that Pryor could not appreciate the value of the right to vote because he is a white man.

Spare Me
[Kathryn Jean Lopez  06/09 12:40 PM]

Dick Durbin is going on the Senate floor right now about how Republicans are wrong to say that any questions about public issues (like one's opposition to abortion that fits with his religious beliefs). Dems are asking legitimate questions, is his contention. Would those legitimate questions include those Russ Feingold asked about his family vacation plans?

Randy Barnett's Article Today
[Mark R. Levin  06/09 12:00 PM]

Kudos to Randy Barnett for today's NRO piece. However, two minor areas of disagreement. I don't see liberal distress with Stevens's position; I see the opposite. And I don't see the cause of medical cannabis receiving any lift here. Indeed, perhaps Kennedy and others in the majority were motivated to reach a bad constitutional result because of their discomfort with the product, as illogical as that may be in this case. But this is a definite and significant setback. Nonetheless, Randy's advocacy was outstanding.

Ginsburg vs. Mother’s Day: Easily Forgettable
[Edward Whelan  06/09 10:58 AM]

One detail of Al Franken’s mistaken assertion that Ruth Bader Ginsburg never proposed the abolition of Mother’s Day merits further attention. After listening to an audiotape of Franken’s remarks on his Air America show, I am revising the unofficial transcript to make clear that Franken was quoting Brookings Institution scholar Thomas Mann in his grand conclusion:

I think it’s an urban myth from conservatives. We got this from Thomas E. Mann, a Brookings Institute Senior Fellow on Government Studies. . . . He told us, "I now have it on the highest and closest authority that Ruth Bader Ginsburg has never, in any setting, proposed doing anything with Mother’s Day."

So who is this “highest and closest authority” that Franken and Mann rely on? The only plausible alternatives are Ginsburg herself or her husband (after consulting with Ginsburg). Either way, it seems clear that Franken was signaling to his Air America listeners (both of them) that Ginsburg herself was the ultimate source of his (mis)information.

Let’s assume that Franken was not deceiving his audience on this point. Let’s assume, in other words, that Ginsburg was his ultimate source. So what?

I don’t doubt that Ginsburg could honestly have believed that she never proposed to abolish Mother’s Day. Indeed, it is just this possibility that I find so disturbingly revealing.

If, after all, you have dedicated your career to the ideological fiction that men and women are, except for trivial differences in plumbing, absolutely identical (rather than, say, of equal dignity and wonderfully complementary in nature). . .

If you have such disdain for the Founders that you purge their words of imagined gender bias and entrench your own policy preferences into constitutional law in place of the real Constitution. . .

If you regard the traditions of the American people as benighted. . .

If you pretend that abortion and even the utter barbarity of partial-birth abortion are constitutional rights (see Stenberg v. Carhart) and that the Constitution requires that taxpayers fund them (see Ginsburg’s chapter on the 1976 Term of the Supreme Court in a book titled Constitutional Government in America). . .

If you believe that it is bigotry not to elevate homosexual relations to the status of traditional marriage (see Lawrence v. Texas). . .

If you think that the Constitution can plausibly be read to prohibit laws against polygamy and prostitution. . .

If you oppose the Boy Scouts and Girl Scouts for perpetuating stereotyped sex roles. . .

If you are so removed from reality that you see co-ed prisons as necessary “to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society”. . .

If you recommend that the age of consent for purposes of statutory rape should be reduced to twelve. . .

If you believe that it is your job as a justice to supplant the political process and dictate for all Americans which interests are part of some New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (see Lawrence v. Texas). . .

And if you won’t abide by the same rules (see 5th paragraph here) that you so eagerly impose on everyday Americans. . .

Then it’s hardly surprising that your comparatively modest proposal of abolishing Mother’s Day wouldn’t be memorable to you.

But it is shameful that Democratic senators and the liberal media have the gall to portray Ginsburg as a “moderate” and as in the “mainstream” while they attack President Bush’s outstanding nominees whose records and values are, by any measure, far more in line with those of the American people.

Democrats Running Scared?
[Edward Whelan  06/09 10:47 AM]

Twelve Democrats were among the 67 votes in support of cloture on Bill Pryor’s nomination to the 11th Circuit. These twelve included the seven Democratic signatories to the Gang of Fourteen’s anti-cloture reform agreement (Byrd, Inouye, Landrieu, Lieberman, Ben Nelson, Pryor, and Salazar). Of the five additional Democratic votes for cloture, four--Bingaman, Carper, Conrad, and Bill Nelson--are up for re-election in 2006, and the fifth, Tim Johnson of South Dakota, has a tenuous hold on his seat.

This would seem to provide an encouraging read on how the politics of judicial confirmation are playing out among American voters.

He Went to Catholic School
[Kathryn Jean Lopez  06/09 10:38 AM]

He was editor of his law school law review. He believes in truth and justice and the American way. He likes apple pie and...(I made the last one up, I have no idea if Judge Pryor likes apple pie...yet.)

I'm just picking on the Senate.

I'm listening to the Senate debate on Bill Pryor. Jeff Sessions (who's great on this) is getting into substance now, but a) I don't really get having these post-cloture debates. b) Hasn't everyone said everything there is to say? I haven't heard a new argument about Bill Pryor in years (well, ok, except for libs suggesting he's just hiding his extremism when faced with the reality of his recess-appointment record on the bench).

Well, at least no one is crying..yet.

Of course, all of this is just to say: I really want to know what he thinks of dogs.

More Promising Judge News
[Kathryn Jean Lopez  06/08 07:47 PM]

AP:

As a bonus, the Senate will confirm on Thursday Michigan nominees David McKeague and Richard Griffin, nominated to the 6th Circuit in Cincinnati, said Majority Leader Bill Frist, R-Tennessee.

While those two weren't part of the deal to avoid a fight over judicial filibusters, Democrats withdrew their objections to their confirmation during the back-and-forth negotiations.

Good Sign from Specter on Kavanaugh
[Kathryn Jean Lopez  06/08 06:57 PM]

Pittsburgh Post Gazette:

"I think it's wishful thinking by the Democrats that he won't move forward," Tobias said. Senate Judiciary Chairman Arlen Specter, R-Pa., said of Kavanaugh in an interview yesterday, "I intend to push him."

P.S. 2
[Kathryn Jean Lopez  06/08 06:22 PM]

The Brown vote and the Pryor cloture vote rolls can be viewed here.

P.S. on JRB Vote
[Kathryn Jean Lopez  06/08 06:10 PM]

Senator [Jeffords] did not vote.

67 Yays-32, Pryor Cloture Vote Done
[Kathryn Jean Lopez  06/08 05:51 PM]

We're almost there...

DraftPrado Update
[Jonathan Adler  06/08 05:49 PM]

Orin Kerr did some digging into the folks behind DraftPrado.org. It turns out I was right to be cynical, as these folks hardly have a “nonpartisan” track record, and explicitly endorse a “progressive” agenda. This isn’t about consensus. It’s about derailing a conservative president’s nomination of a conservative nominee.

The Dem Who Voted for JRB
[Kathryn Jean Lopez  06/08 05:39 PM]

was Ben Nelson

Justice Brown: "Dissenter from Liberal Orthodoxy"
[Wendy Long  06/08 05:37 PM]

Yes! It's a great moment.

As James Taranto in Best of the Web Today aptly put it today, Justice Janice Rogers Brown, the daughter of Alabama sharecroppers just confirmed to the United States Court of Appeals for the D.C. Circuit, is "a black dissenter from liberal orthodoxy."

Brown confirmed 56-43
[KJL  06/08 05:28 PM]

Dems Admit Justice Brown is "Extraordinary"
[Wendy Long  06/08 05:23 PM]

In the final hour of Senate debate on Justice Janice Rogers Brown, Democrats trying to smear and discredit her proclaimed that she is "exceptional" (Senator Leahy) and that she is a "real doozie" (Senator Reid). Senator Reid clarified that "doozie" means "extraordinary."

They got that right: The Senate has just held an up-or-down vote on an exceptional, extraordinary judge.

Ted Kennedy's Asthma Numbers
[KJL  06/08 05:05 PM]

See Adler and Hayward.

Lies, Lies & More Lies
[Wendy Long  06/08 05:01 PM]

Senators Harry Reid, Pat Leahy, and Ken Salazar have in the last hour been lying on the Senate floor about Justice Janice Rogers Brown.

Example: Senator Reid just repeated the left-wing lie that Justice Brown longs for a reassertion of the long-overruled Lochner v. New York decision. Lochner held that the "liberty" protected by the 14th Amendment prevented states from enacting labor laws to protect workers. In fact, Justice Brown criticized a FOOTNOTE in Justice Holmes's dissent in Lochner in which Holmes asserted the Founders of our country did not embrace any particular economic theory. Justice Brown pointed out that the Founders and the Constitution embraced a Lockean view that private property must be protected. As the daughter of a sharecropper, that truth is particularly poignant.

With respect to Lochner itself, Justice Brown was asked in her Judiciary Committee confirmation hearing whether she agreed with the holding. She said, "No."

Brown vs. Boxer
[Kathryn Jean Lopez  06/08 04:19 PM]

A reader suggests: "Given those election numbers, if Brown is not confirmed (unlikely at this point), how about Brown running against Boxer for Senate?"

Kennedy’s Chutzpah
[Sean Rushton  06/08 04:12 PM]

Earlier today on the Senate floor, Sen. Ted Kennedy (D., Mass.) grumbled at length about the many other more important issues--factories downsizing, pension reform, the uninsured--that the Senate could be debating this week instead of judicial confirmations. The nerve! After all, if it weren’t for Kennedy, the Democrats might never have adopted the reckless judicial filibuster strategy in 2003. Responsibility for time consumed this week on what properly should have occurred years ago belongs to none more than Kennedy himself.

RE: So Funny
[Mark R. Levin  06/08 04:12 PM]

I say we put Chuckie to the test. The president should nominate Ramesh to a federal appellate court, and I'm sure Chuckie would support his confirmation. Right?

Ginsburg vs. Mother’s Day, the TKO
[Edward Whelan  06/08 04:09 PM]

Attention, Al Franken:

I am pleased to report that I have posted on the website of the Ethics and Public Policy Center a PDF version of the source setting forth the extremist views of Ruth Bader Ginsburg, the “Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,” co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974.

I have separately posted PDF versions of certain specific pages as well as the report’s cover page. Links to all of these pages and to the entire report can be found here. (Warning: Downloading the entire document will take a long time.)

The document includes the following propositions:

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [190-191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal. . . . If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected.” [75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [131]

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [133]

Other nuggets abound. For example, Ginsburg recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. [See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

Senator Boxer, BTW
[Kathryn Jean Lopez  06/08 03:48 PM]

got 57.8 percent of the vote in her most recent election.

California Girls
[  06/08 03:46 PM]

From from the Cornyn rapid-response office:

In an apparent attempt to diminish the overwhelming electoral support in California for Janice Rogers Brown, Sen. Boxer just claimed on the Senate floor that “anyone who knows anything about California politics knows that it is very rare that judges are made into an election issue. We usually approve our judges.” But perhaps the most memorable case of voter repudiation of activist judges happened in California: In November 1986 Chief Justice Rose Bird and two other liberal members of the California Supreme Court were voted out of office in large part for their activism in reversing death penalty cases.

Further, it is important to note that Justice Brown, with 76 percent of the vote, received the highest vote percentage of all justices on the ballot the year of her retention election.

Rubber Stamps
[Kathryn Jean Lopez  06/08 02:25 PM]

This reminder just in from Senator Cornyn's office:

Sen. Schumer just lamented the “rubber stamp” approach to the President’s judicial nominees. He brought out his chart showing the overwhelming support by Republicans on judicial nominees. He said that “what I’m concerned about is a leader-led rubber stamp.” This is a curious complaint from a Senator who never voted against a single Clinton nominee.

He’s not alone, neither did the other Democrat Senators regularly heard speaking out on this issue.

For example, Sens. Kennedy, Feinstein, Murray, Biden, Durbin, Leahy, Dorgan and Dodd never voted against any Carter, Clinton (or in Sen. Kennedy’s case, Johnson or Kennedy) judicial nominees.

Perhaps the “rubber stamp” attack isn’t the best choice.

As always, please don’t hesitate to contact me if I can provide anything further on this, or any other matter.

Bill Pryor--Memory Lane
[Kathryn Jean Lopez  06/08 02:04 PM]

Some pieces from the NRO archives:
Byron York July 30, 2003 Catholics Need Not Apply?

Quin Hillyer June 23, 2003, Bad Strategy

KJL July 17, 2003, Pryor Excuse

KJL June 17, 2003, The Disney Smear

Byron York June 12, 2003, The Nominee Who Won’t Back Down

Quin Hillyer April 28, 2003, Pryor’s Restraint

Schumer Claims
[Kathryn Jean Lopez  06/08 01:53 PM]

that no conservatives are arguing with Ramesh and G. Will. Not so. Just look at that CONSERVATIVE NATIONAL REVIEW outfit. Here's Peter Kirsanow on Brown. And on May 17, Ramesh and Peter debated JRB in The Corner.

Senator Cornyn on the Mainstream
[Edward Whelan  06/08 01:49 PM]

Senator Cornyn of Texas, who has been a stalwart on judicial nominations, today issued this statement titled “Who’s in the ‘Mainstream’?”:

As the Senate continues its debate on the President’s judicial nominees, liberal interest groups claim that nominees must hold ‘mainstream,’ and not extreme, views. Yet they applied a very different standard to Democrat nominees, than they now apply to Owen, Brown and Pryor.

For example, prior to her service on the federal bench, Justice Ruth Bader Ginsburg--a distinguished jurist and liberal favorite--served as general counsel of the ACLU, a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. Before becoming a judge, Ginsburg expressed her belief that traditional marriage laws are unconstitutional, but that prostitution is a constitutional right. She also wrote that the Boy Scouts and Girl Scouts are discriminatory institutions, that courts must require the use of taxpayer funds to pay for abortions, and that the age of consent for sexual activity should be lowered to age 12.

Most Americans do not consider these views to be mainstream--yet Senate Republicans and Democrats alike set aside such concerns and approved her nomination to the Supreme Court by a 96-3 vote, less than two months after her nomination was announced. Yet President Bush's nominees--who do hold views shared by millions of Americans and enjoy the support of a bipartisan majority of senators--suffer vicious attacks and unprecedented obstruction from liberal interest groups and their allies in Congress.

We should all reject this double standard. We should consider nominees on the basis of their qualifications and judicial temperament, not on the basis of some distorted conception of the political ‘mainstream.’ We should examine their commitment to applying the law regardless of their personal beliefs, not the actual content of those beliefs. And we should consider nominees based on the mainstream support of a bipartisan majority of the Senate, rather than the virulent opposition of a partisan minority of senators and extreme interest groups.

So Funny
[Kathryn Jean Lopez  06/08 01:47 PM]

Charlie Schumer just called Ramesh and George Will "thinking conservatives" because they've aired Janice Rogers Brown reservations. How often does Charlie Schumer consider them "thinking" players worth praise? (I've been complaining about this in The Corner too for the last little bit.)

Janice Rogers Brown
[Kathryn Jean Lopez  06/08 01:41 PM]

kills

Confirmations Coming
[Jonathan Adler  06/08 11:58 AM]

Howard Bashman rounds up news on the coming confirmation votes here. To summarize: There will be a cloture vote on Judge William Pryor this afternoon after the confirmation vote on Justice Janice Rogers Brown. Pryor's confirmation vote could come as early as tomorrow. There should be three more confirmation votes--on Griffin and McKeague as previously reported, and on Thomas Griffith for the D.C. Circuit--next week. Meanwhile, The Hill reports that Frist is in no rush to bring other, more controversial nominations (e.g. Haynes, Myers, Kavanaugh, Saad) to the floor as there are other matters (Bolton, energy bill, etc.) that the Senate must address.

DraftPrado.Org
[Jonathan Adler  06/08 10:17 AM]

Some outfit called "Start Change" is campaigning for President Bush to nominate judge Ed Prado for the Supreme Court. Would it be overly cynical to view this as an effort to encourage opposition to whomever the President nominates instead?

Ginsburg vs. Mother’s Day, Round Two
[Edward Whelan  06/08 09:49 AM]

I plan to say more tomorrow on Al Franken’s “highest and closest authority” who misled him into thinking that Ruth Bader Ginsburg hadn’t proposed the abolition of Mother’s Day. But in case my previous post left the impression that Ginsburg’s opposition to Mother’s Day was a youthful indiscretion, let me make clear that Ginsburg has recently expressed support for a treaty that, under her views, would very likely make Mother’s Day illegal.

On April 1, 2005, Ginsburg gave a badly confused speech (which I critiqued in my essay “Alien Justice”) that sought to defend the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution. In the course of that speech, Ginsburg referred to “the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified.”

Set aside for now the inappropriateness of Ginsburg’s commenting on the live political issue of whether the United States should ratify a particular treaty. It should not be surprising that a justice who doesn’t respect the difference between judging and legislating when she is deciding cases wouldn’t understand that there are political issues on which she should refrain from commenting.

Under this 1979 Convention, known as CEDAW, a signatory nation is subject to periodic reviews by a CEDAW Committee, which assesses the nation’s progress in fulfilling CEDAW’s terms. In 2000, this Committee criticized Belarus for celebrating Mother’s Day:

The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women's traditional roles. It is also concerned whether the introduction of human rights and gender education aimed at countering such stereotyping is being effectively implemented.

In short, the CEDAW Committee saw Mother’s Day as a violation of CEDAW.

If Ginsburg is going to look to the views of international bureaucrats to decide what the Constitution means, then it goes without saying that, if the United States were to ratify CEDAW, she would give even greater weight to the views of the CEDAW committee in determining the obligations of the United States under CEDAW.

Some entity called the United Nations Association of the United States of America disputes that CEDAW would abolish Mother’s Day. Amusingly, UNAUSA offers this defense of the CEDAW committee’s action: “The committee was disapproving only of Belarus’ particular version of Mothers’ Day which promoted stereotypical roles for women; it was not condemning the general practice of celebrating Mothers’ Day.”

It’s hard to credit UNAUSA’s defense since the CEDAW committee did not identify any particular features of Belarus’s Mother’s Day that it found objectionable. Instead, the CEDAW Committee objected to the fact that Mother’s Day “encourage[es] women’s traditional roles.” Thus, the CEDAW committee can be expected to approve a general practice of celebrating Mother’s Day only when lots of men are mothers.

Contra Boxer
[Sean Rushton  06/07 06:50 PM]

Committee for Justice issued this rebuttal of Sen. Boxer’s anti-Brown speech yesterday.

PFAW Rebuttal
[Sean Rushton  06/07 06:44 PM]

From NBC News's First Read yesterday:

Top officials at the liberal People for the American Way met with reporters on Friday to publicize a new report of theirs entitled "Courting Disaster 2005," which examines Scalia's and Thomas's dissenting and concurring opinions, and it concludes that the appointment of one or two new Justices who are similar to Scalia or Thomas could overturn important precedents regarding reproductive health, privacy, and civil rights. The study is a prelude to the group's ramped-up efforts this month in anticipation of a Supreme Court fight.

To set the record straight, Committee for Justice re-releases its original rebuttal to PFAW’s scare mongering, here.

"Filibuster Ends, Apology to Follow "
[  06/07 06:14 PM]

From Best of the Web:

By a 65-32 vote, the Senate today ended the filibuster, begun in 2003, against the nomination of Justice Janice Rogers Brown of California's Supreme Court to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. A confirmation vote is expected tomorrow. Ten Democrats joined all 55 Republicans in voting for "cloture" (60 votes were needed): the seven compromisers plus Tom Carper of Delaware, Kent Conrad of North Dakota and Bill Nelson of Florida--all of whom are up for re-election next year.

Meanwhile, USA Today http://www.usatoday.com/printedition/news/20050607/a_capcol07.art.htm reports (penultimate item) that the Senate will pass a resolution next week in which it "belatedly apologizes for failing to pass anti-lynching legislation":

"Doria Dee Johnson, an author and lecturer on lynchings, says she will be in the chamber next Monday when the Senate will take up a resolution expressing remorse for not stopping a crime that took the lives of at least 4,742 people, mostly blacks, from 1882 to 1968. . . .

"The Senate resolution, sponsored by Sens. Mary Landrieu, D-La., and George Allen, R-Va., notes that nearly 200 anti-lynching bills were introduced in the first half of the 20th century and that seven presidents petitioned Congress to end lynching. But Senate filibusters blocked anti-lynching legislation for decades, Johnson said. "

It's a shame the apology didn't come up a few weeks ago, when Democrats were still touting the filibuster as one of the glories of American government.

The Supremes
[Kathryn Jean Lopez  06/07 05:17 PM]

Mark Levin writing in his book, Men In Black, on Lopez and Morrison:
"These two baby steps for judicial responsibility, however, have not established precedents beyond their specific cases, nor have they overturned the other Supreme Court rulings that have given the federal government a degree of power the founders rejected." (Chapter 9, Socialism from the Bench, p. 140.)

Ruth Bader Ginsburg’s Opposition to Mother’s Day
[Edward Whelan  06/07 03:31 PM]

My recent posting on the extremist views of Ruth Bader Ginsburg at the time President Clinton nominated her to the Supreme Court included the fact that Ginsburg “had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.”

Rush Limbaugh kindly read this and other parts of my posting on his nationwide radio show. Alan Skorski, who will be publishing a book this fall on Al Franken titled Pants on Fire, has sent me his transcript of a recent radio show in which Franken played this audio clip from Limbaugh and dismissed Limbaugh’s account as an “urban myth from conservatives”:

Limbaugh clip: “You know, Ruth Bader Ginsburg is more extreme than any of these nominees that Bush has brought up. I went through this list of things she actually believes in, that came out in her testimony, such as getting rid of Mother’s Day and Father’s Day and replacing it with Parent’s Day.”

Franken to Mark Luther: “She never actually said anything about Mother’s Day and Father’s Day for Parents' Day anywhere.”

Mark Luther: “So you think he is just fabricating this completely?”

Franken: “I think it’s an urban myth from conservatives. We got this from Thomas E. Mann, a Brookings Institute Senior Fellow on Government Studies. He told us--I now have it on the highest and closest authority that Ruth Bader Ginsburg has never, in any setting, proposed doing anything with Mother’s Day.”

Sorry, Al, but this is no urban myth. Here is exactly what Ginsburg proposed—in a section titled “Recommendations”:

Replacing “Mother’s Day” and “Father’s Day” with a “Parents’ Day” should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.

Source: Page 133 of “Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,” co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974.

If any other leftist wants to dispute any other aspect of my posting on Ginsburg, please do so publicly, and I will be happy to provide exact quotations and page citations.

It’s especially telling that even the Left finds it hard to believe how extremist many of Ginsburg’s views were. Yet notwithstanding views that were far more out of the “mainstream” than even the grossest caricatures of the most vilified of President Bush’s nominees, Ginsburg was confirmed to the Supreme Court, by a 96-3 vote, a mere six weeks after her nomination.

Justice Brown, "Activism, " and Theft
[Rick Garnett  06/07 03:24 PM]

Today's anti-Brown editorial in the Washington Post complains about, among other things, her dissenting opinion in San Remo Hotel v. San Francisco. According to the Post, "[Justice Brown] began one dissent, in a case challenging regulation of a hotel, by noting that 'private property, already an endangered species in California, is now entirely extinct in San Francisco.' Her colleagues on the California Supreme Court certainly got what she was up to. In response, they quoted Justice Holmes's Lochner dissent and noted that 'nothing in the law of takings would justify an appointed judiciary in imposing [any] personal theory of political economy on the people of a democratic state.'"

To say that the San Remo Hotel case involved "regulation of a hotel" is like saying that Moby Dick involved a fish (or, I guess, a sea-dwelling mammal). In fact, as Peter Kirsanow explained a few weeks ago, the case "involved San Francisco's hotel-conversion ordinance that requires owners of hotels that serve the poor, elderly, and disabled to pay a substantial fee to the city whenever the owners seek to convert their property to tourist use. The fee, amounting to 80 percent of the construction costs of the units to be converted, would be paid into the city's Residential Hotel Preservation Fund for the poor." (The fee, by the way, was more than a half-million dollars.)

Justice Brown's dissent did not, in fact, attempt to "impos[e] [her] personal theory of political economy on the people of a democratic state." Instead, her dissent was effort to remind her colleagues--and the Post, I suppose--that the Takings clause (which the Post puts in "scare quotes") is as much a part of the Constitution as, say, the Free Speech Clause. Her goal was not the revival of "Lochnerism" but simply to prevent a striking, glaring effort to shift the entire cost of a social policy onto a few property owners who lacked the political power to protest. My point is not that Justice Brown was, in the end, correct in her interpretation and understanding of the Constitution. It is simply that there is nothing unworthy or "activist" or extreme about taking the Takings clause seriously. Here is the introduction to Brown's San Remo dissent:

Americans are a diverse group of hard-working, confident, and creative people molded into a nation not by common ethnic identity, cultural legacy, or history; rather, Americans have been united by a dream--a dream of freedom, a vision of how free people might live. The dream has a history. The idea that property ownership is the essential prerequisite of liberty has long been "a fundamental tenet of Anglo American constitutional thought." (Ely, The Guardian of Every Other Right (1998) p. 43.) "Indeed, the framers saw property ownership as a buffer protecting individuals from government coercion. Arbitrary redistribution of property destroyed liberty, and thus the framers hoped to restrain attacks on property rights." (Ibid.) "Property must be secured, or liberty cannot exist" (Adams, A Balanced Government (1790) in Discourses on Davila (1805), reprinted in 6 Works of John Adams (1851 ed.) p. 280), because property and liberty are, upon examination, one and the same thing. Private property is in essence a cluster of rights inuring to the benefit of the owner, freely exchangeable in accordance with the terms of private agreements, and recognized and protected by common consent. In the case of real property, this cluster of rights includes the right to exclude persons from certain physical space. In the case of intellectual property, it may include the right to employ a valuable method or process to the exclusion of others. In other words, private property represents zones of individual sovereignty--regions of autonomy within which we make our own choices.

But private property, already an endangered species in California, is now entirely extinct in San Francisco. The City and County of San Francisco has implemented a neo-feudal regime where the nominal owner of property must use that property according to the preferences of the majorities that prevail in the political process--or, worse, the political powerbrokers who often control the government independently of majoritarian preferences. Thus, "the lamb [has been] committed to the custody of the wolf." (6 The Works of John Adams, supra, at p. 280.) San Francisco has redefined the American dream. Where once government was closely constrained to increase the freedom of individuals, now property ownership is closely constrained to increase the power of government. Where once government was a necessary evil because it protected private property, now private property is a necessary evil because it funds government programs.

From the Senate
[Kathryn Jean Lopez  06/07 02:37 PM]

All Republicans voted for cloture, plus the following 10 Democrats: Byrd Carper Conrad Inouye Landrieu Lieberman Nelson (NE) Nelson (FL) Pryor Salazar

A final, up-or-down vote will occur on the Brown nomination tomorrow at 5 pm, after which a cloture vote on the Pryor nomination will immediately occur. Once cloture on Pryor is achieved, up to 30 hours of debate time on the nomination may occur.

Four More Judges on the Bench
[Jonathan Adler  06/07 12:53 PM]

According to this AP report, the Senate could confirm up to four appellate judges – Brown, Pryor, Griffin and McKeague – in the next week or so. The article also notes that Reid hopes confirming these four judges will put the issue behind him. It also (mistakenly) claims that confirming these four would take care of “almost all of the judges involved in the centrist agreement that averted a showdown over judicial filibusters.” Well, not exactly. The agreement itself addressed nominees Myers and Saad, and the negotiations also concerned Brett Kavanaugh and William Haynes. And then there’s Thomas Griffith, and Susan Neilson . . .

Brown Vote Tomorrow
[Jonathan Adler  06/07 12:52 PM]

An up-or-down vote on the nomination of Justice Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit is scheduled for tomorrow at 5pm.

65-32
[KJL  06/07 12:32 PM]

The Senate just voted to end debate on Brown.

The Liberal Plantation
[Edward Whelan  06/07 12:30 PM]

Peter Kirsanow has previously noted that “[l]eft-leaning political cartoonists depict [Janice Rogers Brown] as an Aunt Jemima on steroids, complete with exaggerated physical features typically found only in the racist literature distributed by hate groups.” Schumer’s rhetoric (quoted by Kathryn) would seem to suggest that he views Brown as an “uppity black woman.” (The quote marks are to highlight the racist cliché, not to attribute those specific words to Schumer.) All of this is further evidence for the proposition, long advanced by the Wall Street Journal op-ed page, that liberals are very scared by blacks who have dared to escape from the comforts of the liberal plantation.

Boxer Rebellion
[Kathryn Jean Lopez  06/07 12:22 PM]

Senator Barbara Boxer yesterday argued that Janice Rogers Brown is "bad for women" (translation: a bad woman) because she "voted to strike down a State antidiscrimination law that provided a contraceptive drug benefit to women." This was a religious-freedom issue before the court, it wasn't about Brown's position on contraception. Rick Garnett wrote about the Catholic Charities of Sacramento v. Superior Court case here.

Yeah, She's Nominated for Dictator, Charlie
[Kathryn Jean Lopez  06/07 11:53 AM]

Senator Charles Schumer's exalted rhetoric on the Senate floor on the Brown nomination: "What does Janice Rogers Brown want to be nominated for; dictator? Or Grand Exalted Ruler?"

Cornyn for SCOTUS
[Kathryn Jean Lopez  06/07 11:38 AM]

so the Houston Chronicle speculates.

Isn't this all you need to know? "The idea of Cornyn on the high court troubles Ralph Neas, president of the liberal-leaning advocacy group People for the American Way."

The Post and Justice Brown
[Jonathan Adler  06/07 11:26 AM]

The Washington Post, like so many of Justice Janice Brown’s critics, seems to conflate Justice Brown’s political and legal views. (Incidentally, this is the substance of many of the attacks on Judge William Pryor as well.) The underlying assumption is that if Brown opposes affirmative action or the growth of the welfare state, she necessarily would seek to enact her views from the bench. This view not only does a disservice to Justice Brown’s record as a judge, it suggests that only those without political perspectives (or who share the political preferences of the Post) are suited to the bench. One of a judge’s most important responsibilities is to put aside his or her own political preferences and to apply the law in as neutral and fair a manner as possible. Are judges capable of setting aside their personal views? Yes. One only need look as far as yesterday’s Supreme Court opinion in Gonzales v. Raich for several examples. In that case, it is clear that at least two of the justices voted for a holding that produced an outcome prior to their personal policy preferences. If the Post wants to make the case against Brown, it has to show that she is incapable of doing the same. It’s not enough that she has strong and independent political preferences of her own.

Leader of the Pack
[Kathryn Jean Lopez  06/07 10:55 AM]

Harry Reid yesterday: “We’ve spent weeks and weeks debating radical judges. But we haven’t spent a single day debating a health care plan, or a jobs plan, or an education plan that will help hardworking Americans.” (Hat tip)

The Washington Post on Janice Rogers Brown
[Edward Whelan  06/07 10:27 AM]

The Washington Post’s editorial today advocating the rejection of California supreme court justice Janice Rogers Brown’s nomination to the D.C. Circuit labels Brown a conservative judicial activist and asserts that “[n]o senator who votes for her will have standing any longer to complain about legislating from the bench.” It would be tempting to dismiss the Post’s editorial on the ground that the Post, having voiced no objection to liberal judicial activists, is hardly in a position to preach about judicial activism. But such a dismissal would not deal squarely with the Post’s argument.

I have not reviewed Justice Brown’s record and therefore am not in a position to offer my own assessment. (See Peter Kirsanow’s thorough defense of Brown.) But it is striking how feeble the Post’s evidence in support of its charges is. The Post claims that Brown has “openly embraced the ‘Lochner’ era of Supreme Court jurisprudence”--the era from 1905 to 1937 in which the Court used “substantive due process” to invalidate economic legislation. But in fact Brown has written that the “Lochner court was justly criticized for using the due process clause ‘as though it provided a blank check to alter the meaning of the Constitution as written.’”

The Post also criticizes one of Brown’s dissents in a case that presented a challenge under the Takings Clause of the California constitution. The Post seems not to understand the world of difference between giving force to a provision, like the Takings Clause, that is plainly meant to protect property rights and reading into the Due Process Clause (which provides merely that no state shall “deprive any person of life, liberty, or property, without due process of law”) absolute substantive protections for whatever interests a judge happens to favor.

If this is all the Post can muster against Brown, it has provided no reason for any senator to vote against her nomination.

Thought of the Day
[Sean Rushton  06/06 08:34 PM]

While nitpicking about Janice Brown’s alleged judicial activism, Sen. Schumer (D, NY) said he was “equally offended” by judicial activism whether from the right or left. Really? When was the last time Schumer complained about federal courts striking down parental notification for minor abortions, or redefining marriage, or discovering protections for computer generated child pornography?

Another Voice
[Jonathan H. Adler  06/06 04:05 PM]

The folks at SCOTUSBlog have added a Supreme Court nomination blog.

NARAL Pro-Choice California, National Abortion Federation....
[Kathryn Jean Lopez  06/06 03:30 PM]

Barbara Boxer is on the floor right now listing off groups that oppose Janice Rogers Brown. It is more than these, but if you were casually listening, it certainly sounded like every abortion-advocacy group there is.

Michael McConnell and the Religion Clause Mainstream
[Richard W. Garnett  06/06 03:18 PM]

Last week, in Cutter v. Wilkinson, the Supreme Court unanimously upheld the Religious Land Use and Institutionalized Persons Act, Congress’s latest effort to accommodate the religious needs of prisoners. My take on the decision is available on NRO, here.

It is worth noting, as we all gather our breath for the upcoming judicial-nomination fights, that the (unanimous) Court's framework for evaluating legislative accommodations of religion closely tracks the analysis advocated by then law professor (now Judge) Michael McConnell in a 1992 article, "Accommodation of Religion: An Update and a Response to the Critics.”
There, Judge McConnell argued that the Constitution required asking whether an accommodation “removes a significant obstacle to the exercise of a religious belief” or rather “induces the person to adopt (or feign) the religious belief in order to receive the benefits of the accommodation”; whether it imposes a “burden on nonbeneficiaries”; and whether it “favors one religion over another.”

Although Justice Ginsburg’s opinion for the Court does not cite this article, these are the same factors that she relied upon in upholding the religious freedom law for prisoners: whether it “alleviates exceptional government-created burdens on religious exercise”; whether it imposes “burdens . . . on nonbeneficiaries”; whether it is available “neutrally among different faiths”; and whether it creates an excessive incentive to change one’s religious behavior. Prior opinions had largely focused on the first factor--whether the accommodation removed a significant government-imposed burden on religion. The Court’s opinion in Cutter marks, I think, the first time it addressed all of these aspects of accommodation in an opinion joined by a majority of the Court.

Some have unpersuasively criticized the church-state views of Judge McConnell, a possible candidate for a future Supreme Court vacancy, as (there they go again . . . ) outside the “mainstream.” Evidently the nine members of the Court--led by left-leaning Democratic appointee Ruth Bader Ginsburg--do not agree.

Mauro on McConnell
[Jonathan Adler  06/06 02:00 PM]

Tony Mauro has this profile of Judge Michael McConnell in the Legal Times. Judge McConnell is likely to be on the short list for any Supreme Court opening. He was actively supported by prominent law professors from across the political spectrum when he was nominated to the Tenth Circuit. The question is how many of his former academic colleagues would support him for the High Court.

Owen Sworn In
[Jonathan Adler  06/06 12:39 PM]

Coverage here.

Brown Debate Begins
[Jonathan Adler  06/06 08:11 AM]

The Senate should begin debate on Justice Janice Rogers Brown this afternoon, and a vote on her nomination could come as early as Wednesday. A vote on Bill Pryor could come at the end of the week.