ConfirmThem

Posted at 11:54pm on May 15, 2008 Breaking News....

By AndrewHyman

This just in from California: the state supreme court has just decided that the words "man" and "woman" each apply equally to people of both sexes, and are therefore completely interchangeable words. Any non-compliant state government document shall be burned forthwith and post haste.

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Posted at 1:37am on May 15, 2008 Judges Issue in '08 Election

By Curt Levey

This afternoon, I will be on a panel at the National Press Club entitled "Election 2008: What the Media Isn't Telling You." I’ll be discussing the role of the judges issue in the ’08 election, the prospects for Supreme Court personnel changes, and the current judges fight in the Senate. The panel runs from 1:00 to 2:30 in the Lisagor Room.

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Posted at 2:52pm on May 12, 2008 Senator Obama v. The Father of the Bill of Rights

By AndrewHyman

Do you know who the "Father of the Bill of Rights" was? Everyone knows that George Washington was the "Father of Our Country." And James Madison is renowned as the "Father of the Constitution." But who was the "Father of the Bill of Rights"?

James Madison was instrumental in getting the Bill of Rights adopted, but many historians give primary credit to George Mason, who developed the ideas in the Bill of Rights, and agitated for their inclusion in the Constitution. Mason wrote
the Virginia Declaration of Rights, refused to sign the original Constitution in part because it lacked such a statement, and urged ratifying states to insist on it. The Bill of Rights is based on Mason's earlier Virginia Declaration of Rights.

On May 8, presidential candidate Barack Obama described how judges should interpret the Bill of Rights:

What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. And, in those circumstances, what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.

In contrast, George Mason said (in 1787) that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course" (emphasis added).

Ed Whelan recently pointed out at Bench Memos that "in cases in which a statute is being challenged as violative of the Constitution, a justice who ultimately finds it unclear whether the statute in fact violates the Constitution ought—under principles of judicial restraint—to let the statute stand." That's how the framers meant the Bill of Rights to be applied, and it's really the only way to preserve government by the people, rather than government by judiciary.

Obama and others often say that if the Constitution and Bill of Rights were interpreted with restraint, then the Court never would have issued an opinioin like Brown v. Board of Education. Obama said it again on May 8. But it's not true. In his book "The Tempting of America" (page 82), Robert Bork explained as follows:

By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.

Brown was not a close case.

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Posted at 10:20am on May 9, 2008 What About William Smith??

By Quin

Does anybody have a good idea of what the political prospects are for First Circuit nominee William Smith? He was once chief of staff for Chafee; does that make him more acceptable to Dems, or does it mean that Whitehouse will block him because his Whitehouse's campaign against Chafee got pretty nasty? I'm all for getting confirmed ANY nominee actually chosen by the Bush White House, even if they aren't sperb conservatives.
A secondary consideration: Does that seat "belong" to Rhode Island? If not, and if Smith has no chance because Rhode Island Dems won't allow him through with their blue slips, is there a chance a New Hampshire nominee could be put forth and confirmed instead? Somebody like recently confirmed U.S. District Judge Joseph LaPlante comes to mind; he was confirmed with no opposition, and with very nice words from Leahy; and he is apparently a good law-and-order guy, a longtime prosecutor.
What I am thinking is for the summer, after the Conrad/Matthews/Keisler things have played out (in whichever way they do play out), the goal should be to help the Dems get closer to the appropriate number of appellate confirmations by giving them noncontroversial folks like Agee, the Virginia Conrad, and either WIlliam Smith or a substitute like LaPlante.

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Posted at 9:45pm on May 8, 2008 New Nominee

By AndrewHyman

U.S. District Judge Glen Conrad was nominated today to the Fourth Circuit. There are now two Conrad nominations pending for the Fourth Circuit, the other being that of Judge Robert Conrad.

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Posted at 12:07pm on May 8, 2008 My Take on McCain's Speech

By Quin

I spend a lot of time nitpicking McCain's speech, and I stand by my nitpicks -- but overall, it gets a good grade, here.

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Posted at 1:24am on May 8, 2008 Stoned

By AndrewHyman

Howard Bashman has a roundup of reactions to John McCain's recent speech about judicial nominations, including a column in the Chicago Tribune by Geoffrey Stone. It's kind of difficult to fathom why Professor Stone takes the position he does.

Stone asserts that McCain is "ignorant" because McCain does not unquestioningly admire judges (like Justice Stevens) who were appointed by GOP presidents. But why is it smart to unquestioningly admire anyone? Stone also contends that McCain is "ignorant" because McCain believes that the actual intended meaning of the Constitution can require non-activist judges to strike down statutes. But why would Stone think that striking down a statute is always judicial activism? And, finally, Stone says that McCain "mocked" the lifetime tenure of federal judges when McCain said that some judges who are assured of lifetime employment show little regard for other governmental branches. McCain was obviously criticizing some judges' attitude, rather than criticizing the need for lifetime tenure. Since I've summarized the Stone column for you, feel free to now skip it.

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Posted at 11:22pm on May 7, 2008 Oliver Wendell Holmes v. Louis Brandeis

By AndrewHyman

Earlier today, I was reading over John McCain's excellent speech in 1987 supporting the Bork nomination (hat tip to Powerline). After McCain's speech, Senator Lloyd Bentsen explained his opposition to the Bork nomination, and Bentsen said: "I happen to agree with a former Supreme Court Justice named Louis Brandeis that the makers of the Constitution 'conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men.'" But did Bentsen really understand what Brandeis was actually saying? I doubt it. Even nowadays, this quote from Brandeis is often cited (by people like Senator Biden) as a reason to obstruct and hound and filibuster judicial nominees. Here's what Brandeis said in his 1928 dissent in Olmstead v. United States:

They [the framers] conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. (emphasis added)

Brandeis didn't mean that judges have discretion to constitutionally protect wife-beating, abortion, and other harmful acts that are performed in private.

MORE BELOW THE FOLD

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Posted at 4:01pm on May 6, 2008 Some More Stuff from McCain

By AndrewHyman

In addition to the McCain speech I recently posted, people also might be interested in the following three documents that Manny Miranda kindly emailed today (all in pdf format):

1) A list of people on McCain's new "Justice Advisory Committee."

2) A letter (dated last year) from Judge Charles Pickering regarding the Gang of 14 deal.

3) A fact sheet about McCain's position on judicial nominations.

UPDATE: Over at RedState, Adam C has some video clips of John McCain's speech today. And I promise you the clips are more interesting than the stupid animated people that occasionally show up in the annoying advertisements to the right. :-)

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Posted at 1:11pm on May 6, 2008 John McCain's Speech This Morning on Judicial Nominations

By AndrewHyman

Here's the full text of Sen. McCain's very good speech this morning at Wake Forest University in North Carolina:

Thank you, Ted, and thank you all very much. Dr. Hatch, I'm grateful for your invitation to this great university. And Senator Richard Burr, thank you for that warm welcome to North Carolina and to Wait Chapel. I'm honored to be here, and I brought along a friend. I'm sure you'll recognize him – my pal, Senator Fred Thompson of Tennessee.

We appreciate the hospitality of the students and faculty of Wake Forest University, and especially during exams. I know exam week involves some tough moments, like when you're up at 3:00 a.m. and have to choose between studying or watching one of Fred's old movies. Most of the students here look confident and ready, so you need no advice from me as final exams draw near. But for those of you who might be feeling a slight sense of panic coming on, all I can say is that a few bad grades don't have to be end of the road – so just give it your best and move on. An undistinguished academic record can be overcome in life, or at least that is the hope that has long sustained me.

Your kind invitation brings me here as a candidate for president of the United States, and anyone in that pursuit has plenty of promises to make and to keep. When it's all over, however, the next president will be compelled to make just one promise, in the same words that 42 others have spoken when the moment arrived. The framers of our Constitution had a knack for coming right to the point, and it shows in the 35-word oath that ends with a pledge to preserve, protect, and defend the Constitution itself.

This is what we require and expect of every president, no matter what the agenda or loyalties of party. All the powers of the American presidency must serve the Constitution, and thereby protect the people and their liberties. For the chief executive or any other constitutional officer, the duties and boundaries of the Constitution are not just a set of helpful suggestions. They are not just guidelines, to be observed when it's convenient and loosely interpreted when it isn't. The clear powers defined by our Constitution, and the clear limits of power, lose nothing of their relevance with time, because the dangers they guard against are found in every time.

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution.

In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another's excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn't always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America – voters in both parties whose wishes and convictions are so often disregarded by unelected judges – are entitled to know what those differences are.

Federal courts are charged with applying the Constitution and laws of our country to each case at hand. There is great honor in this responsibility, and honor is the first thing to go when courts abuse their power. The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself.

One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable. But it was not exactly news that the Court had taken to setting aside the facts and the Constitution in its review of cases, and especially in politically charged cases. Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige. Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them. One abuse of judicial authority inspires more. One act of raw judicial power invites others. And the result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines.

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

The year 2005 also brought the case of Susette Kelo before the Supreme Court. Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way. There is hardly a clearer principle in all the Constitution than the right of private property. There is a very clear standard in the Constitution requiring not only just compensation in the use of eminent domain, but also that private property may be taken only for "public use." But apparently that standard has been "evolving" too. In the hands of a narrow majority of the court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. A local government seized the private property of an American citizen. It gave that property away to a private developer. And this power play actually got the constitutional "thumbs-up" from five members of the Supreme Court.

Then there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were – and I quote – "impermissible." And it was so ordered – generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today – and we're all in for trouble when he hears that we met in a chapel.

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically – to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered "settled law," and everything else is fair game.

The sum effect of these capricious rulings has been to spread confusion instead of clarity in our vital national debates, to leave resentment instead of resolution, and to turn Senate confirmation hearings into a gauntlet of abuse. Over the years, we have all seen the dreary rituals that now pass for advice and consent in the confirmation of nominees to our Supreme Court. We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers. We have seen disagreements redefined as disqualifications, and the least infraction of approved doctrine pounced upon by senators, their staffs, and their allies in the media. Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution. And then no tactic of abuse or delay is out of bounds, until the nominee is declared "in trouble" and the spouse is in tears.

Of course, in the daily routine of Senate obstructionism, presidential nominees to the lower courts are now lucky if they get a hearing at all. These courts were created long ago by the Congress itself, on what then seemed the safe assumption that future Senates would attend to their duty to fill them with qualified men and women nominated by the president. Yet at this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a "judicial emergency" has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.

As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations – to meeting a basic Senate duty under our Constitution. If a lobbyist shows up wanting another bridge to nowhere, or maybe even a courthouse with a friend's name on it, that request will be handled by the Senate with all the speed and urgency of important state business. But when a judicial nominee arrives to the Senate – a nominee to preside at a courthouse and administer justice – then he or she had better settle in, because the Senate majority has other business and other priorities.

Things almost got even worse a few years ago, when there were threats of a filibuster to require 60 votes for judicial confirmations, and threats in reply of a change in Senate rules to prevent a filibuster. A group of senators, nicknamed the "Gang of 14," got together and agreed we would not filibuster unless there were "extraordinary circumstances." This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger.

Here, too, Senators Obama and Clinton have very different ideas from my own. They are both lawyers themselves, and don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.

For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.

In the Senate back then, we didn't pretend that the nominees' disagreements with us were a disqualification from office – even though the disagreements were serious and obvious. It is part of the discipline of democracy to respect the roles and responsibilities of each branch of government, and, above all, to respect the verdicts of elections and judgment of the people. Had we forgotten this in the Senate, we would have been guilty of the very thing that many federal judges do when they overreach, and usurp power, and betray their trust.

The surest way to restore fairness to the confirmation process is to restore humility to the federal courts. In federal and state courts, and in the practice of law across our nation, there are still men and women who understand the proper role of our judiciary. And I intend to find them, and promote them, if I am elected president.

Harry Truman said that he gave "more thought, more care, and more deliberation" to the selection of judges than nearly any other duty of the office. I will bring that same level of care and caution to my judicial nominations, expecting in return that the Senate will do its own part, and confine itself to the duty of confirming qualified men and women for the courts. The decisions of our Supreme Court in particular can be as close to permanent as anything government does. And in the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough. I will not seek the confidence of the American people in my nominees until my own confidence is complete – until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution.

I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.

There was a day when all could enter the federal courthouses of our country feeling something distinctive about them – the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice. Thank you very much.

Hat Tip: The Hotline.

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Posted at 4:33am on May 4, 2008 Three Cheers for Bernard Amyot

By AndrewHyman

Who, you ask, is Bernard Amyot? He's president of the Canadian Bar Association. And Canada is getting ready for only its second-ever public hearing to feature a Supreme Court nominee. According to Amyot, "A judge's personal beliefs should be off limits." Here's an extended excerpt from Amyot's May 4 column in the Toronto Star:

Our concern is that the partisan nature of Parliament lends itself to the demonstration of political agendas. Questions about personal opinions or prior writings can taint the judiciary by giving Canadians the wrong impression – that courts prejudge cases based on personal, partisan views, and that judges are beholden to political parties or the government that appointed them.

Canadians must be secure in the knowledge that judges decide cases after they hear the arguments presented to them, with impartiality and integrity and applying the relevant law.
The purpose of any nomination hearing should be to give Canadians an opportunity to get acquainted with their new Supreme Court justice. An introduction. Not a grilling. Not second-guessing. The event must be conducted respectfully, professionally and with civility.

The questions should be subject to a publicly available protocol that would outline the kind of questions appropriately asked of a new justice – questions presenting the person while maintaining the professionalism and integrity of the position, the court and the justice system.

For example, questions about the candidate's approach to judging, their language abilities or their knowledge of the common law, civil law and indigenous legal systems would be appropriate. On the other hand, criticism of past judgments, questions on issues that might come before the court, on personal beliefs or preferences that intrude on the candidate's privacy or dignity would be inappropriate.

It is imperative that partisanship be left out of the process and the right balance of transparency and openness results in an excellent appointment.

Demanding that a nominee will decide cases according to the preferences of individual members of parliament would be inappropriate.

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Posted at 12:29pm on May 1, 2008 "McCain to talk judges in North Carolina"

By Feddie

CNN"s Political Ticker has this report:

On the day Democrats hold a crucial primary in North Carolina, John McCain will venture to the Tar Heel State to lay out his vision on what kind of judges he would appoint to the bench.

The McCain campaign tells CNN's Dana Bash the Arizona senator will deliver a speech next Tuesday at Wake Forrest University designed to help bolster his standing among conservatives with regard to the issue of judges.

Many conservatives took issue with McCain in 2005 for signing on to the so-called "gang of 14″ in the Senate — a bipartisan group of senators who sought to find a compromise on some of President Bush's judicial nominees.

Oh, and be sure to read the accompanying comments. Here are just a few gems:

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Posted at 9:40am on May 1, 2008 Excellent New Blog on State Legal Reform

By Marshall Manson

The American Justice Partnership is an amazing coalition of organizations working on legal / tort reform at the state level. Dan Pero, the organization's President recently launched a new blog. I've checked it out, and it looks pretty good. It's definitely a resource for anyone who is interested in legal reform.

You can check it out at AmericanCourthouse.org.

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Posted at 2:40pm on Apr. 29, 2008 Specter, McConnell Send Letter

By Quin

Without comment, I post this letter, sent today:

April 29, 2008

The Honorable Harry Reid The Honorable Patrick J. Leahy

Majority Leader Chairman

United States Senate Senate Committee on the Judiciary

S-221 Capitol Building 224 Dirksen Senate Office Building

Washington, D.C. 20510 Washington, D.C. 20510

Dear Senators Reid and Leahy:

We write to express our serious concern regarding statements made by Chairman Leahy during last week’s Judiciary Committee Executive Business Meeting. In discussing Senator Reid’s April 15, 2008 commitment[1] to confirm three more circuit court nominations before the Memorial Day recess, Senator Specter asked Chairman Leahy to clarify whether he was saying he would not honor the commitment if the scheduling was not “convenient for the two Michigan nominees.” In response, Chairman Leahy stated, “I will do everything possible to get it [done] by Memorial Day, but if the White House slow walks [the Michigan nominees’ paperwork], we probably won’t.”[2] (MORE)

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Posted at 2:15pm on Apr. 25, 2008 Fight, Fight, Fight

By Quin

That's what I recommend in my column today (here) at the Washington Examiner. Notice the poll numbers. It's incredible to me that we keep finding ways to lose.

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Posted at 8:49am on Apr. 24, 2008 GOP Senators React as Leahy Guts Judges Deal

By Curt Levey

All nine Republican members of the Senate Judiciary Committee have joined the chorus calling on Sens. Pat Leahy and Harry Reid to show good faith in implementing their agreement with Minority Leader McConnell to confirm three circuit court nominees by Memorial Day. In their letter yesterday , the Republican senators remind Judiciary Chairman Leahy that he has not responded to their previous letters about 4th Circuit nominees Bob Conrad and Steve Matthews, and address the necessity of including both nominees and DC Circuit nominee Peter Keisler in the Memorial Day deal:

[W]e believe, that as a matter of fairness, those promised three should include Judge Conrad, Mr. Matthews, and Mr. Keisler. Failing to include those three is unfair both to these nominees, who have been pending in Committee for over 270, 220, and 660 days respectively, but also to the litigants in the Fourth Circuit who are shackled with an appellate court that is one-third vacant. Further, we are concerned that more than a week after the Majority Leader’s commitment, a hearing for only one circuit nominee, Justice Steven Agee of Virginia, has been scheduled. … ‘Doing everything [you] can’ surely means holding a hearing for Judge Conrad and Mr. Matthews, and in Mr. Keisler’s case, a Committee vote.

The new letter to Sen. Leahy was spurred, in part, by his announcement yesterday of a hearing for Fourth Circuit nominee Agee, who was nominated just last month and received his required American Bar Association rating just this week. That stands in stark contrast to the months and years of delay for Keisler, Conrad, and Matthews. By moving Agee ahead of other circuit nominees, Leahy deepened the widespread suspicion that he and Reid will try to evade good faith implementation of the Memorial Day deal by claiming credit for circuit court nominees that were already part of other deals with Democrats. Agee and Sixth Circuit nominees Helene White and Ray Kethledge fall in that category.

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Posted at 8:01am on Apr. 23, 2008 WSJ on Judges Deal; CFJ Founder Honored

By Curt Levey

In the wake of last week’s Senate deal on judicial nominations, today’s Wall Street Journal joins the voices noting the desirability of filling in the blanks in the deal with the names of circuit court nominees Peter Keisler, Bob Conrad, and Steve Matthews.

The Journal editorial describes the problem:

Democrats would rather fill pending vacancies with candidates who are either their patronage choices or pass muster with liberal interest groups. … As a compromise package, [6th Circuit nominees] Mr. Kethledge and Ms. White now look like a tantalizing way for Democrats to fulfill the McConnell-Reid deal to confirm three Circuit nominees by Memorial Day. Adding those two to Senator Webb's choice of Mr. Agee for the Fourth Circuit would allow Democrats to make good on the Memorial Day goal without confirming any of Mr. Bush's first-string nominees on the merits.

Note that Ray Kethledge is a first-string nominee, but will be confirmed as part of a separate deal, rather than “on the merits.”

None of this diminishes Minority Leader Mitch McConnell’s accomplishment in securing the 3-by-Memorial-Day deal using the limited leverage afforded by a highway funding bill. But, as the Journal editorial points out, “GOP Senators need to use their minority rights now to insist that Democrats honor their pledge by confirming three bona fide Bush nominees.” As to which three, the Committee for Justice wholeheartedly agrees with the Journal that “Republican Arlen Specter has the right idea in requesting a discharge petition to confirm Peter Keisler on the D.C. Circuit, plus Robert Conrad and Steve Matthews on the Fourth Circuit.“

The Journal notes that the yet to be determined details of the Memorial Day deal have implications for the next president:

John McCain is supporting Mr. Specter's plan, and urging the confirmation of Messrs. Keisler, Conrad and Matthews for the Memorial Day deal. Senators Hillary Clinton and Barack Obama aren't. The two Democrats are only inviting trouble for themselves if they should make it to the White House. Republicans are sure to invoke the Harry Reid precedent to derail their nominees.

The deal also has important implications for the election itself:

Republicans need to make judges an issue so voters understand that the stakes on the federal appellate courts, including the Supreme Court, couldn't be higher in 2008.

The role of the judges issue in the ’08 election is sure to be one of the topics debated at Friday’s 9th annual Republican National Lawyers Association (RNLA) Policy Conference in DC. Thursday evening, the RNLA honors the Committee for Justice’s founder and first chairman, C. Boyden Gray, with its Edwin Meese Award. Mr. Gray was White House Counsel under the first President Bush and now serves as Special Envoy for European Union Affairs. Upon assuming the EU post, Gray was replaced by CFJ’s current chairman, former Energy Secretary and U.S. Senator Spencer Abraham.

UPDATE (April 23): This morning, Sen. Leahy announced a May 1 hearing for Fourth Circuit nominee Steven Agee. This comes just one day after the Judiciary Committee received Agee's ABA rating (unanimous 'well qualified'). In other words, Leahy has moved Agee ahead of other circuit nominees whose ABA ratings have been available for several months to almost two years. This news only deepens concern that Senate Democrats will attempt to gut the Memorial Day deal.

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Posted at 11:08pm on Apr. 22, 2008 Ledbetter Nonsense From PFAW

By AndrewHyman

People for the American Way (PFAW) is currently running radio ads against Sen. Norm Coleman because Coleman helped confirm Justice Alito, who in turn later wrote the Supreme Court’s opinion in Ledbetter v. Goodyear.

The truth is that the Court’s Ledbetter decision was perfectly reasonable. It was a case of statutory construction, and so Congress is free to change the statute whenever Congress wants. In fact, the Washington Post is reporting today that Congress may do so imminently (and President Bush may veto).

The Ledbetter case involved equal pay for women. Obviously, gender disrimination should be (and is) illegal. The problem involves the 180-day statute of limitations. The Supreme Court has interpreted it to run from the initial discriminatory pay decision, rather than from each subsequent paycheck. If it ran from each paycheck, then of course the statute of limitations would be basically meaningless.

In my opinion, there would be no harm if Congress were to amend the statute simply to say that the 180 days runs from when the victim reasonably could have known that the pay decision had been discriminatorily made. But of course the Democrats want to gut the statute of limitations entirely, and demagogue the issue during the upcoming presidential campaign, so don't expect a rational resolution of this matter any time soon.

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Posted at 8:48pm on Apr. 21, 2008 Santorum, Harrison, Obama and Clinton on Judicial Nominees

By AndrewHyman

Rick Santorum wrote this today:

Many conservatives have given McCain poor marks for his involvement in the Gang of 14. I was in leadership pushing hard for a showdown with the Democrats on using the "Constitutional Option" to end their filibuster of judicial nominations. The Gang of 14 broke the impasse, and it probably was for the best. I was the one counting votes on that issue, and I was much less certain of success than others. In the end, the Gang deal resulted in numerous confirmations of qualified conservative jurists.

On judges, McCain has repeatedly made clear that he will, as his Web site states, "only nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat." Sounds good to me.

Also, Marion Edwyn Harrison is skeptical about SCOTUS vacancies this year, so the next president will probably have a lot of nominating to do.

In 2005, while filibustering the Alito nomination, Sen. Barack Obama explained what kind of judges he would appoint; Obama gave Democrats a "guarantee that the judges who are appointed to the Supreme Court are judges that reflect our values." In other words, judges who will impose their values on the country. What ever happened to judges reflecting what's in the Constitution and laws that have been duly enacted by will of the people?

And Senator Clinton has lamented constitutional limits on federal power: "The next time I consider school safety legislation, should I wonder whether school safety is 'truly national' or 'truly local'?" Of course not Senator, if you're elected then you get to tell states and localities to do whatever you say; you can implement whatever values you want. Just ask Sen. Obama. Both of these Senators have sought to convert the judicial nomination process into partisan warfare.

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Posted at 5:43am on Apr. 21, 2008 McCain, Obama, & Clinton Respond

By Curt Levey

Senator Arlen Specter has released the responses of Sens. McCain, Obama, and Clinton to his letter inquiring about their position on his proposed petition to discharge three long-obstructed judicial nominees from Sen. Leahy’s Judiciary Committee. The three nominees are Peter Keisler (DC Circuit), Bob Conrad (4th Circuit), and Steve Matthews (4th Circuit).

While Obama’s and Clinton’s responses—deference to Sen. Leahy’s handling of judicial nominees—were predictable, we awaited with interest the reply of Sen. McCain. He did not disappoint.

Most notable in McCain’s response—beyond support of the discharge petition—is his hope that the Judiciary Committee will “vote out of Committee these qualified candidates [Keisler, Conrad, and Matthews] to allow the full Senate to confirm them before Memorial Day.” This is a crucial point because it is not yet clear what circuit nominees are included in Majority Leader Reid’s commitment to confirm three by the Memorial Day recess. After Minority Leader McConnell secured this important commitment last week, the Committee for Justice noted that it would be most valuable to fill in the blanks in the deal with the names of Keisler, Conrad, and Matthews.

Sen. McCain’s response goes on to remind Senate Democrats that they will need to do a lot more than confirm three additional circuit nominees if they are to meet the historical average achieved ”under Presidents Clinton, George Bush, and Reagan [with] the opposing party in control of the Senate … during the president’s final two years in office.” McCain notes that the current lagging pace of confirmations “is unacceptable and such partisan gridlock only serves to harm all Americans who seek justice in our courts only to find our courts understaffed” (emphasis added). Of the eight pending circuit court nominees who have been obstructed by Democrats, six—Bob Conrad, Shalom Stone, Rod Rosenstein, Gene Pratter, Ray Kethledge, and William Smith—are waiting to fill seats declared judicial emergencies.

Barack Obama has based his presidential campaign on ending the partisan gridlock McCain describes. Thus, it is disappointing that Sen. Obama did not take the opportunity presented by Specter’s inquiry to practice bipartisanship. Obama voted against the confirmation of Justices Roberts and Alito, and it is likely that he will continue voting against most of the President’s judicial nominees. However, if he is serious about rising above partisan gridlock, he should support the principle of fair up-or-down votes on the Senate floor for the nominees at issue. Instead, Obama chose to defer to Sen. Leahy’s decision to bottle up the nominees in committee.

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Posted at 9:17pm on Apr. 18, 2008 Weekend Open Thread

By AndrewHyman

Have a great Saturday and Sunday. And don't miss Courting Disaster by Jonah Goldberg.

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Posted at 3:55pm on Apr. 17, 2008 Justice Stevens Says the Fifth Amendment is Unconstitutional

By AndrewHyman

In 1976, Justice Stevens wrote:

The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases.

But this week, he wrote:

I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents "the pointless and needless extinction of life .... violative of the Eighth Amendment."

It's fine for Justice Stevens to disdain the death penalty, and to disdain the Fifth Amendment, but it's not fine for him to confuse his own disdain with unconstitutionality. Here's how a blogger at Southern Appeal puts it:

My personal disdain for the death penalty has nothing to do with my understanding that the Constitution explicitly permits the states to impose such a penalty.

And for those of you trying to read the retirement tea leaves, see below the fold.

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Posted at 5:54pm on Apr. 15, 2008 Keisler Not Mentioned

By Quin

From the colloquy, it is clear to me that Helene White, the Dem, will be one of the nominees moved. McConnell seems insistent on both Conrad and Matthews. If there are only three before Memorial Day, I think it likely that those will be the three. Keisler wasn't mentioned at all. That is a shame, particularly given the Wash Post and LA Times strong pushes for him this week. I do think there is a chance for a real Demo bait and switch with it being White, Conrad, and somebody like Pratter, who sets no conservative hearts aflutter.

Republicans should insist not just on numbers but on identities of the nominees. They ought to make clear that they will shut down the Senate if there is no guarantee of a full floor vote this year for Keisler, Conrad, Matthews, and Ketledge -- and that they will NOT agree to White without an absolute guarantee that Kethledfge will get through as well -- and, moreover, that Kethledge should NOT count against the three before Memorial Day, but only in addition to them, because White is clearly not a GOP pick.

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Posted at 5:32pm on Apr. 15, 2008 Some Progress on Judges?

By Curt Levey

The decision by Senate Republicans to ratchet up the pressure on Democrats to end their obstruction of circuit court nominees may be bearing some fruit. Speaking on the Senate floor, Majority Leader Reid just said that he and his colleagues will "do our best to approve 3 circuit judges by Memorial Day." No specific names were mentioned, so the devil will be in the details. I assume—or a least hope—that the ABA can't process Helene White fast enough to make her one of the three.

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Posted at 4:57pm on Apr. 15, 2008 6th Circuit Deal

By Curt Levey

The White House just announced that Helene White—a Democrat and ex-cousin-in-law of Sen. Carl Levin—will be substituted for Steve Murphy as a 6th Cir. nominee, with Murphy now being nominated to the Eastern District of Michigan. Ray Kethledge remains as the second 6th Cir. nominee from Michigan.

This is an okay deal given that 1) the best we can hope for from the election is a Republican president with an increased Democratic majority in the Senate, and 2) now even a Democratic president won't be able to wipe out the Republican majority on the 6th Circuit anytime soon. As an added benefit, there will finally be an end to Sen. Levin's ten-plus years of complaining about Helene White's failed nomination to the 6th Circuit during the Clinton Administration.

However, it is important that Senate Democrats not be allowed to claim that a hearing or vote on Helene White represents progress on judges—that is, use her as an excuse not to move some other circuit nominee. Her nomination and inevitable confirmation is a gift from the President to the Democrats, not the other way around.

Speaking of judges, let's hope for a speedy recovery by Sen. Arlen Specter, one of the GOP’s leading voices on the judges issue.

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Posted at 1:42pm on Apr. 15, 2008 Wash Post and LA Times

By Quin

Readers have been good about posting these editorials, but to make them easier to find and highlight, I promote them to this entry. Both the Washington Post (here) and the LA Times (here) are showing some serious intellectual honesty by blasting Democrats for their obstructionism on judges. Senate GOPers ought to recognize that the time is ripe for them to make a big deal of this, even up to "shutting down the Senate." And, since both the Times and the Post were particularly strong in favor of Peter Keisler, Senate Repubs ought to put the Keisler nomination front and center in their arguments -- followed, as entry 1A, by the Conrad nomination to fix the atrocity of a Fourth Circuit that is missing five of its 15 judges.

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Posted at 1:27pm on Apr. 14, 2008 Judge Fight This Week?

By Quin

Here's what I wrote at the Spectator blog. Let's work this for all it's worth.

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Posted at 4:05pm on Apr. 12, 2008 Fight For Puryear

By Quin

In yesterday's column in the Washington Examiner, I tell of how the Dems are now reaching down to the district court level to block nominees. This one is worth a fight.

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Posted at 1:24pm on Apr. 12, 2008 Weekend Open Thread

By AndrewHyman

Ed Whelan recently spoke at Harvard about the judicial nomination and confirmation process, and you can click here for a news report about it. Following is a brief excerpt, but read the whole news report:

"McCain knows judges shouldn't be legislating," Whelan said. "He understands their proper role. Also, he's a fighter. If the Democrats filibuster, he will keep fighting and make the case for the nominee and inflict political pressure."

If Democrats do take the presidency in the upcoming election, Whelan said that Republicans will be faced with three options. "We can (1) roll over and play dead, (2) fight to the death and filibuster, or (3) make the case why the person is a good or bad nominee, and then vote up or down and move on," Whelan said. "I would advocate for choice three."

I would also advocate for choice three.

Hat Tip:Bobo.

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Posted at 3:05pm on Apr. 10, 2008 Happenings Today in the Senate

By AndrewHyman

From Congressional Quarterly: "GOP Senators Threaten Blockade Unless More Appeals Court Nominees Get Votes"

Congratulations to Catharina Haynes, who today became the first appeals court nominee confirmed this year.

Also, congratulations to Senator Specter for advocating a time limit after a nomination is submitted, for a hearing, a committee vote, and a final floor vote to be held. That would be great. Right now might be the perfect time for adoption of such a rule, because no one knows who the next president will be. All of the gridlock and obstruction has been very harmful to the judiciary.

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