Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—November 21

(Photo Illustration: NRO)

1997—The Alaska supreme court rules (in Valley Hospital Association v. Mat-Su Coalition for Choice) that a hospital operated by a nonprofit corporation is a “quasi-public institution” and that the state constitution’s “right of the people to privacy” requires that the hospital allow elective abortions to be performed on its premises.

2013—By a 52-48 vote (with all Republicans and three Democrats voting no), the Senate abolishes the filibuster—the 60-vote cloture threshold—for lower-court and executive-branch nominees. The immediate effect of the abolition is to enable the confirmation of three D.C. Circuit nominees.

More broadly, Senate Democrats succeed in proving that they can dish it out but can’t take it. A decade earlier, now-Senate majority leader Harry Reid and other leading Democrats launched their unprecedented campaign of partisan filibusters against President George W. Bush’s judicial nominees, and they bitterly (and successfully) resisted Republican efforts in 2005 to abolish the filibuster. Reid, for example, voted against cloture at least 25 times on 13 different Bush nominees, but he is outraged that Republicans defeated a grand total of seven cloture motions on President Obama’s nominees.

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