ConfirmThem

Despite his greatness, Reagan made many mistakes, as all men - great and less so - do. However, it has become obvious that his greatest mistake as president was to nominate and appoint Anthony Kennedy to the Supreme Court. Where were Reagan's "great" legal advisers when they were considering with whom to replace Douglas Ginsburg as the nominee? Where was Meese? Where was Mark Levin, for that matter? Charles Fried? What about the rest of the vaunted conservatives in the Justice Dept and the White House Counsel's office? What a total stinking failure, across the board. Why not nominate Laurence Silberman? Ralph Winter? Pasco Bowman? James Buckley? Ken Starr? Harvie Wilkinson? Stephen Williams? Charles Fried? Darmuid O'Scainlainn? Frank Easterbrook? Dalin Oaks? Clifford Wallace? My God, what an absolute and unnecessary disaster.

After today's ruling in Kennedy v. Louisiana, I feel certain now that Kennedy will write a concurring opinion in Heller that will undermine and restrict Scalia's main plurality opinion. He has done the same thing twice before in big cases: Rapanos v. United States and Parents v. Seattle. Despite some interestingly nonpartisan alignment of justices in particular cases this term, the final set of decisions appear to reveal that nothing much has really changed in terms of ideology. This truly is the Kennedy Court. All Hail King Kennedy!

http://leahy.senate.gov/press/200806/062408d.html

"Circuit court vacancies are at the lowest rate in over a decade. With Tuesday’s confirmation of the Sixth Circuit nominees, eight of the 13 circuits are without a single vacancy, and 11 have fewer vacancies than at the start of the Bush administration. There are just nine circuit vacancies across the country, and the circuit vacancy rate has dropped from 17.9 percent at the start of the Bush administration to just 5.1 percent after today’s confirmations. Vacancies on the federal judiciary nation wide have dropped from 9.9 percent after President Clinton’s administration to just 4.8 percent today."

Actual Leahy statistics and graphs:

http://leahy.senate.gov/issues/nominations/June24PressPackNoms.pdf

http://afjjusticewatch.blogspot.com/2008/06/stalemate-over-6th-circuit-n...

"Despite all the fury from Republicans on the Senate Judiciary Committee, Sixth Circuit Court of Appeals nominee Helene White sailed through her confirmation vote yesterday on the Senate floor, 63-32. Although debate on her nomination was expected to last as long as four hours, only five senators spoke and the vote was called after only an hour of discussion. Most GOP members of the Judiciary Committee continued to oppose her nomination, with only Senators Orrin Hatch (R-UT) and Jeff Sessions (R-AL), who voted against her in committee, supporting her confirmation.

Sen. Hatch, who chaired the Judiciary Committee in 1997 when Judge White was initially nominated to the seat, refused to give her a hearing for almost four years – she still holds the record for the longest pending circuit court nomination in Senate history. Despite his history of opposition to Judge White, Sen. Hatch voted twice this month in favor of her appointment to this long-vacant seat – breaking ranks with the likes of Senate Minority Leader Mitch McConnell (R-KY) and Ranking Member of the Judiciary Committee Arlen Specter (R-PA). Apparently he realized that calling for quick confirmations of the president’s nominees while stymieing the confirmation of Judge White might prove a tad hypocritical.

The Senate also voted yesterday to confirm Raymond Kethledge to the final vacancy on the Sixth Circuit Court of Appeals and Stephen Murphy to the US District Court for Michigan’s Eastern District."

Again, the falsehood that White holds the record for the longest pending COA nomination is continued. Terence Boyle's nomination lasted longer.

http://www.whitehouse.gov/news/releases/2008/06/20080625.html

"PRESIDENT BUSH PLEASED BY SENATE JUDICIAL CONFIRMATIONS"

"Yesterday, the Senate confirmed Raymond Kethledge and Helene White to the U.S. Court of Appeals for the Sixth Circuit and Stephen Murphy to the U.S. District Court for the Eastern District of Michigan. I appreciate the Senate's work on filling these important seats, which had been declared judicial emergencies.

For the first time in my Administration, the Sixth Circuit will now have a full court to address important issues facing the residents of Kentucky, Michigan, Ohio, and Tennessee. Unfortunately, too many other Federal judgeships across America remain vacant. This is unacceptable and inexcusable. Since the beginning of the 110th Congress, the Senate has confirmed only 10 circuit court nominees. In the last two years of the past three Administrations, the Senate has confirmed an average of 17 circuit court judges. I strongly urge the Senate to hold hearings and votes on the 28 pending circuit and district court nominations to ensure that our Nation has a fully functioning judicial system."

Here's Orin Kerr's post on the Kennedy case:

http://volokh.com/posts/1214399430.shtml

I think the Dems are using the fact that the Republican Senate never returned White's nomination back to the White House intrasession during the 105th and 106th Congresses as a technical excuse to make it seem that her nomination lasted longer than Boyle's, which was returned to the White House instrasession several times, especially in the 109th Congress.

This seems an appropriate place to provide the link to the current issue of Harvard Journal of Law (Fed. Society **NOT** the 'regular' Law Review), which is a tribute to Robert H. Bork: http://www.law.harvard.edu/students/orgs/jlpp/

Sad, it really is. Damico, "Supreme Conflict" describes the AMK & Souter disasters in excruciating detail. Republican POTUS & senators' willful, suicidal misunderstanding of the Judiciary and refusal to lift the limpest fist to promote the judges & philosophies they pretend to espouse never ceases to dumbfound. It's particulary inexplicable when it's clear how well this issue polls, and the Hastert/DeLay/Frist/W Hindenburg-Titanic branch of the GOP is nothing if not poll-driven. Just insanity.

AMK giveth and he taketh away. Can't celebrate malarkey like his "reasoning" that the Fed. PBA ban is constitutional because women may get post-abortion vapors and not have to swallow this tripe. A truly awful Justice, and the WH was fully aware what they were getting with him too. Goes to show what happens when you A., don't know what you're doing to begin with, and B., put "confirmability" above all else.

I respect Brennan & Douglas way more than AMK. Even O'Connor was just a small town, innately cautious & consensus-seeking politician who became enchanted by the spotlight she was blindly thrust into. But this walking personality disorder is unprecedented and hopefully never repeated.

So much for Roberts keeping AMK "in the fold". Wait til you see how quickly Obama has a nominee for every existing judicial vacancy and how publicly & viciously he fights to get them confirmed.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

As I recall, Kennedy was Reagan's third try at that particular nomination. Bork was, well, borked. Ginsburg's nom. went up in smoke. So, Reagan nominated a person good ol Jesse Helms prophetically labeled a "vanilla conservative."

I happen to know administration officials personally who were warning hard against Kennedy at the time. But the political considerations were such that, even though I think the Reagan administration screwed up EVEN CONSIDERING THE POLITICS, it is more than understandable why they felt too weak to fight for a Clifford Wallace type. Remember, this was in late 1987. Earlier that year, Reagan had survived the Iran Contra scandal by the skin of his teeth. Then, in October, the stock market lost about 25% of its value in one friggin' day. And then he got his hat handed to him with the Bork nomination, and then Doug Ginsburg had to pull out because of his past marijuana use. Plus, this was right at the time when Reagan was finalizing his agreement with Gorbachev to eliminate an entire class of nukes from both arsenals -- one of the most momentous foreign policy achievements in modern history. In light of all this, it is easy to see how it was that even the good people of the Meese Justice Department and the White House could have figured they had almost zero political capital left with which to fight for a superbly originalist high court nominee in the face of a Democratic majority in the Senate (along with Republicans like Packwood, et al., who could be counted on to run for cover, if not outright oppose from the start, any real conservatives). I happen to think things would have worked out differently with a Wallace: After two losses for Reagan on the subject, the public would have responded to yet another Demo blockade with a strong backlash against Democratic obstructionism, and it would have been a fight that would have been winnable.

But the point is, we'll never know. And it is absolutely undeniable that all conventional wisdom held, for absolutely credible reasons (credibility not always being a feature of conventional wisdom, but it was in this case), that Reagan had no political capital to work with whatsoever. In light of that mindset, getting somebody on the court who was clearly right-leaning POLITICALLY, even if not a clear-thinking judicial originalist, could easily be seen as a good bargain at the time.

Again, I would have gone with Wallace or one of the other stalwarts. But I do not blame Reagan's folks too strongly, not at all the way I blame Bush for Souter when his political circumstances were so much stronger and Souter was so much worse, so obviously worse in fact that George Will immediately pronounced him "an empty Souter."
Quin Hillyer

Well said, Quin.

Regarding Douglas Ginsburg, it's almost quaint that he withdrew his nomination in light of the information of his past marijuana use, especially given that the Democrats are about to nominate for the presidency an admitted former cocaine user. Oh, and also that two term, impeached president who didn't inhale....

The current White House occupant is no stranger to dalliances with illegal substances, himself. Quaint, indeed.

I'll never understand why they didn't nominate OScannlain. He was hardly as contentious as Bork or even Silberman, his resume was superior to AMK's at the time, and they knew him from the 1981 transistion team. Maybe he was considered and they found 'something', who knows.

IMO Silby would've been confirmed had he been nominated instead of DGinsburg, grouchy that he may be. Superbly qualified, friends in Big Labor, vast resume, plus the Senate was exhausted from Bork and the public wouldn't tolerate another debacle. I've heard there were worries Silby didn't go to church often enough and I doubt he would've stood for the invasive vetting that AMK eagerly did, as detailed by JCG.

But true, AMK is far more understandable than Souter. It would be like Obama nominating David Levi. Just imagine Silberman and Edith Jones up there instead of AMK & DHS all these years...

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

So the court claims that there are evolving standards of decency, thus preventing states from passing legislation contrary to those standards, thus establishing those standards.

This is absurdity.

http://www.powerlineblog.com/archives2/2008/06/020834.php

"The report commends by name former Assistant Attorney General Peter Keisler for objecting to the apparent use by others (but not the Attorney General) of political or ideological considerations in the hiring process. Ironically, Keisler's nomination to the U.S. Court of Appeals has been blocked by Senate Democrats based on these very considerations."

BoBo raises a good point. The report ought to help Keisler. As I suggested in an earlier post, though, the WHite House MUST get involved and start using whatever leverage it has -- COMBINING issues, not just on judges, but mixing and matching with whatever is important to the Dems -- to catalyze a grand bargain with the Dems on judges. The bargain MUST include confirmation for at least one of the three high-profile nominees (Keisler, Robert Conrad, Matthews, with the first two seeming to have better shots) PLUS Glen Conrad, plus at least one other circuit court judge (including perhaps one as-yet-unnominated; aren't there still some openings for which Bush hasn't even moved yet?) -- plus some district court judges, including if at all possible either Rogan or Puryear.
Of all the nominees, frankly, Keisler ought to be the easiest, considering that he won't actually swing the DC Circuit off dead center to the right and considering that he has such strong support from the Post and the LA Times and is so manifestly well qualified without any ideological red flags.
What's in it for the Dems? That's for the White House and GOP senators to figure out: the best combination of carrots and SERIOUS sticks (including ironclad pledges of filibusters of Obama nominees perhaps, although I myself could never go there if I were in the Senate) that will make the Dems sign off.
THis is important. And Keisler especially deserves not to be screwed.
Quin Hillyer

Is the graphic description of the crime necessary? The reason Kennedy's opinion is awful isn't due to the heinousness of the crime, it's because of his drooling about "evolving standards of decency in a maturing society" rather than, say, looking at SCOTUS precedent or even the text of the Constitution.

I've never liked the wallowing (sometimes even seemingly reveling (not the case here obv)) in the gory details (Scalia has been accused of this). The place for that is when legislatures hold hearings on the subject, or when people are attempting to gather signatures for a petition.

This case is a no-brainer. *I* could've written the dissent for Alito. Feddie is anti-DP and he calls AMK's opinion pathetic at Red State. Even Dahlia on Slate, though wildly overjoyed by the result, has enough integrity to be so distressed by the gibberish she can't "bring myself to celebrate".

IMHO and with all due respect, by focusing on the horrific details of the crime we miss an important teaching moment (the complete abandonment of proper Constitutional adjudicating in favor of social engineering and legislating personal whims and philosophies), and injecting raw emotion into SCOTUS cases, like the libs do with all their prattle about diversity, privacy, Bork's America, if Souter is confirmed women will die, etc.

Again, with all due respect.

BTW, does anyone here think this will help McCain, providing he doesn't appear overly contrived in his outrage, ignorant of WHY this is so bad or have a Cornyn moment?

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

I know it's not pleasant to read the details. But I disagree with you. One reason Kennedy's opinion is awful IS because of the heinousness of the crime. Some people believe that the word "cruel" in the Constitutition need not be strictly limited to things that the framers thought were "cruel," and for those people (who I suspect include more than one of the dissenters in this case) the details of the crime are very relevant to whether the punishment is "cruel" or not. A normal person cannot read the details and then characterize the death penalty as "cruel" punishment in this case.

Fair enough, although I think "raped his eight year-old step-daughter so violently she required emergency surgery" along with the "blood out of the carpet" phone call, would work for most normal people.

LOL at Barry liking Souter. The Kossacks are lighting Souter up over there about his opinion in Exxon, though to be fair some of them are trying to patiently explain what was actually decided, and that RBG agreed w/much of DHS' opinion. Some real hilarity in that thread.

Between Souter, his comments about Kennedy v LA., and FISA, s'been a bad week for Osbama in moonbatville.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.