FROM THE ARCHIVES
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May 21, 2005
May 20, 2005
Frist's Office on the Schedule
[Kathryn Jean Lopez 05/20 03:03 PM]
STATEMENT FROM THE OFFICE OF THE SENATE MAJORITY LEADER
Debate on fair up or down votes for judicial nominees began on Wednesday, May 18, 2005, with the nomination of Priscilla Owen to serve as a judge on the 5th Circuit Court of Appeals, and discussion of the nomination of Janice Rogers Brown to serve as a judge on the D.C. Circuit Court of Appeals. By the close of business on Friday, May 20, 2005, the Senate will have conducted approximately 25 hours of debate on fair up or down votes.
Today cloture will be filed on the nomination of Priscilla Owen to serve as a judge on the 5th Circuit Court of Appeals. The roll call vote on the cloture petition will occur on Tuesday, May 24, 2005.
As previously announced, on Monday, May 23, 2005, the Senate will conduct a roll call vote at 5:30pm on a motion to instruct the Senate Sergeant at Arms to request the attendance of absent Senators. As of Friday, May 20, 2005, further procedural roll call votes during Monday, May 23 are possible. In addition, it is possible the Senate will conduct further procedural roll call votes on Tuesday, May 24.
If the Senate invokes cloture on the nomination, the Senate will be required under its rules to give the Owen nomination a fair up or down vote. In the event the Senate fails to invoke cloture on the Owen nomination and no reasonable arrangement for fair up or down votes is agreed to, the Majority Leader will begin the constitutional option by making a point of order to the Presiding Officer regarding the appropriate amount of time to be used by the Senate to debate Circuit and Supreme Court nominations.
To ensure that all 100 Senators have the opportunity to decide on the precedent, the Majority Leader remains hopeful that parliamentary tactics will not be employed to prevent all 100 Senators from deciding the question. If the motion to table is successful and completed, the precedent regarding judicial nominations will then take effect.
Lincoln and Majorities
[Kathryn Lopez 05/20 01:01 PM]
Some useful reminders courtesy of John Cornyn's office:
Sen. Lincoln just said that Justice Owen should have a clear and substantial majority to be confirmed: “What we are here to say is that when the opportunity comes, we need a clear—a clear and substantial amount of this body to say that this is the person for this job.”
Well, a bipartisan majority voted for cloture in the last Congress—four times. A stronger majority stands ready to vote for her now. And that the best way to see if she has a majority is to have a vote.
And the fact is, throughout history, the Senate has ALWAYS confirmed judges by a majority vote – including judges who received less than 60 Senate votes:
|President Carter:|| Abner Mikva || D.C. Cir. || 58-31 || Sept. 25, 1979 |
| || L. T. Senter || N.D. Miss.|| 43-25 || Dec. 20, 1979 |
|President Reagan:|| J. Harvie Wilkinson III|| 4th Cir. || 58-39 || Aug. 9, 1984 |
| || Alex Kozinski || 9th Cir. || 54-43 || Nov. 7, 1985 |
| || Sidney A. Fitzwater || N.D. Tex. || 52-42 || Mar. 18, 1986 |
| || Daniel A. Manion || 7th Cir. || 48-46 || June 26, 1986 |
|President Bush:|| Clarence Thomas || S. Ct. || 52-48 || Oct. 15, 1991 |
|President Clinton:||Susan O. Mollway || D. Haw. || 56-34 || June 22, 1998 |
| || William A. Fletcher || 9th Cir. || 57-41 || Oct. 8, 1998 |
| || Richard A. Paez || 9th Cir. || 59-39 || Mar. 9, 2000 |
Breaking News: Lindsey Graham Going Wobbly?
[Wendy Long 05/20 12:34 PM]
Breaking news: Word is that Lindsey Graham may be a lynchpin in a bad deal being cooked up on judges. Lindsey, can you hear us? We will not be able to hold back a primary challenge if there is some backroom deal with your name on it backstabbing the president's judicial nominees. Politics and principle happily converge here: Every judge, and the American people, deserves an up-or-down vote. Those wishing to fortify Senator Graham can contact his offices, here.
The Senate Debate
[Kathryn Jean Lopez 05/20 12:13 PM]
I got a few frantic e-mails from the Senate about Arlen Specter a little bit ago, folks thought from the sound of his speech he was about to come out against the constitutional option. He didn't but he made some folks extra uncomfortable.
Putting Judicial Nominees in Perspective, Part III
[Edward Whelan 05/20 07:35 AM]
Imagine, if you will, that a Democrat President nominated a judge whose constitutional and policy views were, by any measure, on the extreme left fringes of American society.
Let’s assume, for example, that this nominee had expressed strong sympathy for the position that there is a constitutional right to prostitution as well as a constitutional right to polygamy.
Let’s say, further, that he had attacked the Boy Scouts and the Girl Scouts as organizations that perpetuate stereotyped sex roles and that he had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.
And, to get really absurd, let’s add that he had called for an end to single-sex prisons on the theory that if male prisoners are going to return to a community in which men and women function as equal partners, prison is just the place for them to get prepared to deal with women.
Let’s further posit that this nominee had opined that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But then, lo and behold, to make this nominee even more of a parody of an out-of-touch leftist, let’s say it was discovered that while operating his own office for over a decade in a city that was majority-black, this nominee had never had a single black person among his more than 50 hires.
Imagine, in sum, a nominee whose record is indisputably extreme and who could be expected to use his judicial role to impose those views on mainstream America. Surely such a person would never be nominated to an appellate court. Surely no Senate Democrat would support someone with such extreme views. And surely Senate Republicans, rather than deferring to the nominating power of the Democrat President, would pull out all stops—filibuster and everything—to stop such a nominee.
Well, not quite. The hypothetical nominee I have just described is, in every particular except his sex, Ruth Bader Ginsburg at the time she was nominated to the Supreme Court in 1993.
President Clinton nominated Ruth Bader Ginsburg on June 22, 1993. A mere six weeks later, on August 3, 1993, the Senate confirmed her nomination by a 96-3 vote.
(The source for the information in the second through fourth paragraphs is “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. The information in the fifth paragraph can be found in the transcript of Ginsburg’s confirmation hearing.)
Deal Sessions & the Chairman
[Kathryn Jean Lopez 05/20 02:51 AM]
From the Washington Post: "Judiciary Committee Chairman Arlen Specter (Pa.), who has not said how he will vote on the rule change, participated yesterday."
The "Frist Operation" is the "Byrd Option"
[Wendy Long 05/20 02:39 AM]
The lefties are furiously linking to this column by Norman Ornstein of AEI, trying to demonstrate the radical nature of the operation contemplated by Dr. Frist and the Republicans to restore the 214-year tradition of voting up-or-down on judicial nominees who have majority support.
Wrong. The facts: Senate procedures and practices can be set either by amending the Standing Rules of the Senate or by establishing parliamentary precedent. Amending the Standing Rules takes a simple majority vote, but such amendments can themselves be filibustered. So the same 60 votes needed to break the filibusters of President Bush's judicial nominees would be required to amend the Standing Rules.
But Senate precedent (which is really at issue here: affirming and restoring the precedent of voting on judges with majority support) is properly established with 51 votes on a parliamentary ruling that cannot be filibustered. Such precedents can be consistent with, alter, or even override the Standing Rules.
Here's how it would work in this case: Majority Leader Frist raises a parliamentary "point of order" that enough time has transpired debating the nomination of Justice Owen and that further debate would be "dilatory." The chairman (usually whatever junior Republican Senator is rotating in the duty of sitting in the chair, but possibly Vice President Cheney, in his constitutional role as President of the Senate) upholds the point of order.
The Democrats appeal the ruling of the Chair. Republicans move to "table" the appeal. If 51 Republicans vote to table, a precedent is set for voting on judicial nominees. An up-or-down vote is then held on Justice Owen, and after a full debate on other nominees, a vote is taken on whether to confirm each of them, as well. The precedent applies to all nominees in the future, regardless of what party controls the White House and the Senate, unless a Senate majority changes it again.
This method of setting precedents by parliamentary procedure and majority vote is not new: it has been invoked by Senator Robert Byrd four times -- in 1977, 1979, 1980, and 1987, as detailed in a Senate Republican Policy Committee policy paper.
Ornstein suggests that codifying the longstanding tradition of voting on judges, and leaving untouched the separate tradition of allowing filibusters of legislation, will somehow make it "easy and tempting to erase future filibusters on executive nominations and bills. Make no mistake about that."
Actually, Norm, that is a mistake. Republicans are the ones who in the past have opposed "erasing" the real filibuster tradition on legislation. Democrats (including nine Democrats now sanctimoniously advocating the filibuster of President Bush's nominees) have favored it. And if you think that a President Hillary Clinton and a Democrat-controlled Senate would hesitate for one second to do away with the legislative filibuster if it suited their purposes -- irrespective of whether Republicans in 2005 did or did not clarify the precedent of voting on judges -- think again.
Boxer-Feinstein v. Owen-Brown: Who's Mainstream?
[Wendy Long 05/20 02:22 AM]
At a press conference yesterday billed as "Women's Groups Against Nominees," featuring liberal left groups like NARAL, National Abortion Federation, National Organization for Women, and Planned Parenthood, Feminist Majority, and the Religious Coalition for Reproductive Rights, Senator Barbara Boxer (D-Calif.) denounced as extremist Justice Priscilla Owen and Justice Janice Rogers Brown.
Boxer declared that Justice Owen has ruled on "a series of issues where she's hostile to the people." What Justice Brown "wants to do to our lives and other peoples' lives" is "frightening," she said. To "use these two women nominees to say that the Republicans care about women, you know, is like saying that Clarence Thomas has ruled in favor of African Americans, when in fact he has been the leader on the opposite side."
Boxer reveals her deep ignorance of the role of judges in our constitutional system and her inability to see beyond the liberal left view that judges can rule for any party or idea they find sympathetic or attractive. She can't even conceive that a judge is supposed to be a neutral umpire, applying the laws as written, without partiality.
Even more ironic is the idea that Boxer and her ilk would pronounce on who is "extreme" and who is "mainstream."
In her last election, Boxer was supported by 58% of the voters in California; California's other Senator, Diane Feinstein, won only 56% of the vote. Justice Brown was supported by 76% of Californians in her reelection to the California Supreme Court, and 84% of Texans voted in the last election for Justice Owen.
May 19, 2005
LAT On Owen
[Jonathan Adler 05/20 02:19 AM]
The Los Angeles Times ran a surprisingly fair (and favorable) profile of Owen.
[Mark R. Levin 05/19 06:53 PM]
Redstate.org reports this good news from the Omaha Herald:
Sen. Chuck Hagel, R-Neb., for weeks said he was undecided on whether to back a move by Frist, if it comes. Wednesday, he officially rejected signing on to a compromise.
"I believe that all of the president's nominees deserve an up or down vote," Hagel said, quoted by spokesman Mike Buttry. "The agreement that has been proposed calls for three of the president's nominees not to get a vote. I could not agree to that. That is unfair and it's not right."
Of [Ben] Nelson's effort, Hagel said that he wants a vote on all nominees, that the Senate is in a very difficult position and that "Sen. Nelson, like all of us, has to do what he has to do."
Pryor and the Voting Rights Act
[Sean Rushton 05/19 05:17 PM]
In typical understated fashion, on the Senate floor earlier Sen. Ted Kennedy (D, Mass.) raved that 11th Circuit nominee Bill Pryor wanted to “destroy” the Voting Rights Act. Here is the relevant section from Committee for Justice’s report on Pryor (footnotes not included):
Section 5 of the Voting Rights Act. Special interest groups also have attempted to misrepresent some of General Pryor’s statements about the Voting Rights Act of 1964. General Pryor has made it clear that “the Voting Rights Act is one of the greatest and most necessary laws in American history.” Because he believes so much in the Act, he has called for the amendment of Section 5 of the Act to ensure appropriate balance and state flexibility to ensure equal rights. He has criticized the “abuse of federal power” under Section 5, and has also taken to task federal courts that have “turned the Act on its head and wielded . . . power to deprive all voters of the right to select . . . public officers,” even though the Act “was passed to empower minority voters in the exercise of the franchise.” Indeed, as it is currently interpreted by courts, Section 5 has forced states to create or maintain safe minority seats which actually dilute minority voting strength elsewhere by packing minority voters into certain districts.
General Pryor’s concerns about Section 5 have been borne out in Georgia, where Section 5 has recently hampered the commonsense efforts of African-American state legislators to create a plan to maximize the number of voting districts that afford African-Americans a chance at electoral victory. A federal district court has found that Georgia’s plan violates Section 5, which has forced the state to appeal to the Supreme Court to have the plan approved. In Georgia’s brief to the Supreme Court, Thurbert Baker, the African-American Democratic Attorney General of Georgia, called Section 5 an “extraordinary transgression of the normal prerogatives of the states” and a “a grave intrusion into the authority of the states.” General Baker added, “Section 5 was initially enacted as a ‘temporary’ measure to last five years precisely because it was so intrusive.”
Section 5 has not only placed a burden on the states it covers, but also on the U.S. Justice Department, which has been forced to preclear a huge number of changes in voting practices that have nothing to do with minority voting rights. Section 5 requires covered states to preclear any decision to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” For example, if a covered state moved voting booths from
one side of a street to another, this action would have to be precleared by the Justice Department pursuant to Section 5. From 2000-2002, the Justice Department received requests to preclear 49,567 voting changes. In response to these requests, the Department issued only 28 letters interposing objections to proposed changes under Section 5.
Because of these problems, it should come as no surprise that some of the most revered Justices of the U.S. Supreme Court have criticized Section 5. The second Justice John Marshall Harlan wrote, “I find it especially difficult to believe that Congress would single out a handful of States as requiring stricter federal supervision concerning their treatment of a problem that may well be just as serious in parts of the North as it is in the South.” Justice Lewis Powell stated that it is “a serious intrusion, incompatible with the basic structure of our system, for federal authorities to compel a State to submit its [reapportionment] legislation for advance review” under Section 5, and observed that he disagrees “with the unprecedented requirement of advance review of state or local legislative acts by federal authorities, rendered the more noxious by its selective application to only a few States.”
On the occasion of Justice Powell’s death, President Clinton saluted him as being “one of our most thoughtful and conscientious justices” and observed that he reviewed cases “without an ideological agenda.”39 General Pryor should also be saluted for thoughtfully contributing to the public debate on how to best overcome America’s tragic legacy of racism and discrimination, just as these icons of American jurisprudence have.
Sen. Griffin's Words
[Sean Rushton 05/19 04:05 PM]
Earlier today, to justify current Democratic judicial filibusters, Sen. Stabenow (D, Mich.) cited former-Sen. Robert Griffin, the leader in 1968 of the bipartisan opposition to Abe Fortas. Her quotes were selective, however. Consider his words at the end of the Fortas debate:
"[T]hus far, there have been only four days of Senate debate on this very important, historic issue. ... [A] filibuster, by any ordinary definition, is not now in progress." And: "An examination of the Congressional Record ... clearly reveals that the will of the majority was not frustrated. ... On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated."
The Senate Minority Keeps Getting Smaller
[Wendy Long 05/19 04:01 PM]
Has anyone noticed that the spotlight on judicial nominations has shifted from a minority of 40 U.S. senators determining who sits on the federal bench, to a minority of 12 U.S. senators deciding this in a back room? The Senate minority--or is it oligarchy?--is getting even smaller.
[Kathryn Jean Lopez 05/19 01:24 PM]
This comes from the RNC.
GIVE THESE JUDGES AN UP-OR-DOWN VOTE ... DEMOCRATS DEMAND!
[Andy McCarthy 05/19 01:23 PM]
A reader passes along these golden oldies from Sen. Kennedy and Sen. Boxer.
Here is a link to a Freeper list of Dem quotes on voting for Judicial nominees.
A couple of examples: Sen. Ted Kennedy (D-MA): “We owe it to Americans
across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.” (Congressional
Sen. Barbara Boxer (D-CA) 5/14/97 : “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.”
Putting Judicial Nominees in Perspective, Part II
[Edward Whelan 05/19 01:21 PM]
Time for a bit more perspective on judicial nominees (on top of this post on Rosemary Barkett).
On May 5, 1994, President Clinton nominated district judge H. Lee Sarokin to be a judge on the U.S. Court of Appeals for the Third Circuit. As Senator Hatch accurately stated at the time, Sarokin had earned a reputation as a stridently liberal judicial activist. Indeed, Sarokin described himself as a “flaming liberal” as a judge. The Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent.” The New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases.” A broad range of police and victim’s groups announced their opposition to his nomination.
Here’s a fuller memo on Sarokin’s record that Senator Hatch submitted on the Senate floor. If you read nothing else, be sure to read about Sarokin’s wildly lawless ruling (reversed by the Third Circuit) in Kreimer. There Sarokin ruled that the Morristown public library couldn’t enforce its written policies to expel a homeless man who regularly engaged in offensive and disruptive behavior and whose odor was so offensive that it prevented the library patrons from using certain areas of the library and prohibited library employees from performing their jobs. “[O]ne person’s hay-fever is another person’s ambrosia” was among Sarokin’s justifications for preventing a community from setting even minimal standards.
Senate Democrats regarded Sarokin as an ideal judge. Senator Leahy, for example, called him “a judge of proven competence, temperament, and fairness” and “an excellent choice.” A mere five months after his nomination, Judge Sarokin was confirmed over Republican opposition.
Of the eight current Democrat Senators on the Senate Judiciary Committee, six (Leahy, Kennedy, Biden, Kohl, Feinstein, and Feingold) served in the Senate at the time of the nominations of Barkett and Sarokin, and all six strongly supported their nominations. (Sen. Kennedy missed the vote on Sarokin.) It is, I think, obvious from their performance that the two new members, Schumer and Durbin, would have done so as well. These Senators simply do not deserve to be taken seriously as arbiters of the qualifications of judges. And their reckless attacks on President Bush’s outstanding nominees are doubly shameful in light of their support for nominees like Barkett and Sarokin.
Dangling Nominees Under Clinton v. Bush 41
[Sean Rushton 05/19 12:55 PM]
My boss, Boyden Gray, White House counsel to the first President Bush, sent this note to reporters today:
On the Senate floor Wednesday, Sen. Durbin sought to justify current Democratic filibusters by claiming that Republicans had held open judicial vacancies during President Clinton’s tenure in order to put Republican judges in those seats later. First, the confirmation slowdown under Clinton occurred mainly during the last year of his second term, a tradition that goes back many years and has been employed by both parties. More to the point, the same strategy was employed--to greater effect--by Senate Democrats at the end of President Bush 41’s single term in office.
Of the nominees left dangling from Clinton’s two terms, most did not get through the Judiciary Committee due to a specific cause: late nomination, problems with home-state senators, incomplete paperwork, or they were impeachable, meaning they had behavioral issues in their pasts that rendered them unacceptable. In many of these latter cases, the Clinton White House privately agreed with the decision not to move forward.
Nonetheless, Clinton was able to have 377 of his nominees confirmed—five short of the all-time record. He lost one floor vote for a nominee to the district court. Clinton’s eight-year appellate confirmation rate was 74%, in addition to getting two liberals confirmed to the Supreme Court. Many of the Clinton nominees who were delayed for long periods of time and not confirmed had problems with their home-state senators. For example, Helene White, Kathleen McRae Lewis, Jorge Rangel, Enrique Moreno, James Beatty and James Wynn all lacked support from one or both of their home-state senators and did not successfully negotiate these issues.
When the Senate adjourned for the last time under President Clinton, there were 41 nominations dangling and 67 judicial vacancies. Overall, that is a good record.
By comparison, during President George H.W. Bush’s single term, Democrats were more aggressive with such committee procedures. After creating 85 new judgeships in 1990, the majority Democrats slowed down the confirmation process to keep many of them open. After the Clarence Thomas confirmation fight, Democrats temporarily stopped the confirmation process entirely. Though a deal was reached to restart the process, the Democrats were able to keep many outstanding nominees off the bench, including Terry Boyle for the 4th Circuit, Frederica Moreno for the 11th Circuit, Lillian Bevier for the 4th Circuit, and John Roberts for the D.C. Circuit.
In all, at the end of the first President Bush’s term, 54 nominees did not get confirmed and we were left with 97 judicial vacancies.
If Clinton's two terms are added together, the number left dangling is around 60--a figure Democrats cite regularly--or an average of about 30 per term, compared to 54 for the single term of the first President Bush.
Re: Playing With Actual Nukes
[Andy McCarthy 05/19 11:27 AM]
K-Lo, we can only hope the GOP is paying attention. I disagree with the Democrats, but I have long admired their appreciation of how central the
courts are to their program. It has been much underappreciated on our
side. You say their all-out fight is "not going to go over" with the
American people, and I think that's true. But I think they don't have
to "win" in a democratic sense to win in a bottom line sense. If they
prevail in the filibuster fight, they keep originalists off the courts
and incrementally accomplish their agenda. That's far more important to
them than, say, Iran's nukes. They can lose some seats over this
struggle and still win big-time if they block a lot of judges. It's
critical to understand how important this is to them, and to respect
that instead of continually being nonplussed by it.
[Kathryn Jean Lopez 05/19 11:24 AM]
Latest from the Senate: The Dems are allowing the Iran hearing to happen. Must have been Bench Memo pressure!
Playing with Actual Nukes
[Kathryn Jean Lopez 05/19 11:00 AM]
Buzz from Senate leadership types is that Democrats are currently objecting to a Iranian-nukes hearing in the Senate Foreign Relations Committee, as part of their hardball-on-judges strategy. Shutting down the Senate folks, is not going to go over--you know, besides it just being wrong to do...and on a national-security issue, no less.
Heat in The Corner Kitchen
[Kathryn Jean Lopez 05/19 10:05 AM]
There's a bit of action in regard to filibusters and NR's editorial policy over in The Corner, you'll want to check it out if you haven't.
Non-Originalists Can’t Be Trusted
[Edward Whelan 05/19 09:58 AM]
The proposition that non-originalists can’t be trusted applies in a number of realms. Among other things, non-originalists can’t be trusted to assess originalist arguments because their primary interest is to discredit originalism. As my essay on NRO today shows, Yale law professor Jack Balkin’s lengthy critique of my recent NRO essay on Brown v. Board of Education and originalism exhibits this characteristic flaw and fails even to present accurately the arguments he purports to refute.
May 18, 2005
Re: Slippery Slopes
[Andy McCarthy 05/19 07:49 AM]
Apropos Ramesh's insights, it's worth reminding people of Sean Rushton's important article a few weeks ago. Back in 1995, Democrats, led by many of those now accusing Republicans of seeking radically to alter the character of the senate, actually proposed eliminating the filibuster entirely -- not just in connection with judicial nomination.
[Kathryn Jean Lopez 05/18 10:37 PM]
There certainly is animus on display in these decisions, but it comes from judges toward the American people. The majority in the Massachusetts court declared, baldly, that only animus could explain the desire of the people of Massachusetts to protect marriage as the union of husband and wife. In California, a trial court judge actually found that passing a civil unions bill indicated the kind of animus on the part of Californians toward gay people that justified striking down that state's marriage laws. And in Nebraska, a federal judge said that the state marriage amendment "goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus." Most ludicrously, this federal judge defined Nebraska's constitutional amendment as a "bill of attainder," which means he called the amendment an attempt to legislatively punish citizens without trial.
I first testified on a federal marriage amendment before the Senate in fall of 2003. The man who sat on my right was Jon Bruning, the attorney general of the state of Nebraska. He testified that, based on some preliminary court rulings, he expected a federal judge would soon overrule Nebraska's state marriage amendment.
Democratic senators in the room assumed a pose of powerful skepticism about the motives of those like us who supported a Marriage Protection Amendment. They pooh-poohed the idea there was any judicial threat to marriage. No court had then ruled in favor of gay marriage, they noted. Our fears of judicial re-invention were unwarranted, if not hysterical then basely political. And besides, they said, none of their constituents were talking about this issue, nobody really cared about it.
"Extreme" Becomes "Extraordinary"
[Kathryn Jean Lopez 05/18 10:33 PM]
Byron York has a deal-talk update here.
[Mark R. Levin 05/18 07:24 PM]
And here's Sen. Cornyn on Gonzales/"judicial activism" re: Owen.
It's Been a Long Day
[Mark R. Levin 05/18 07:23 PM]
Here's what Gonzales said at his confirmation hearing (here and here) about Owen, fyi.
[Sean Rushton 05/18 07:22 PM]
I’m sure it is well known, but listening to Sen. Schumer (D, NY) drone on about President Bush getting “95 percent” of his judicial nominees confirmed requires a restatement of the truth.
The fight over President Bush’s judges has been confined to the important Circuit Courts of Appeal. Since the filibuster strategy’s inauguration in 2003, Senate Democrats have filibustered 10 of 34 appellate nominees, almost 1/3, and stopped another six in committee. In his first term President Bush had the lowest four year appellate confirmation rate of any modern president, 67 percent, according to AEI scholar John R. Lott Jr. He got 35 of 52 appellate judges confirmed.
[Kathryn Jean Lopez 05/18 06:53 PM]
...took down the B16 image Sean linked to earlier. Here it is:
Owen and Gonzales
[Ramesh Ponnuru 05/18 06:22 PM]
In a parental-notification case in Texas in 2000, Alberto Gonzales, then a Texas Supreme Court justice, wrote that to construe the law's provision for a judicial bypass narrowly would be "an unconscionable act of judicial activism." Since Priscilla Owen was on the other side of the case, Democrats have used those words against her. Various conservatives--notably Orrin Hatch, Terry Eastland, and the folks at PowerLine and NRO (including me)--have disputed this account. So has Alberto Gonzales.
There are three theories about Gonzales's words. 1) He was attacking Owen and the other dissenters. 2) He was attacking one or two of the dissenters but not Owen. 3) He wasn't attacking anybody.
Eastland's argument for 2) was that Gonzales was concerned about a narrow construction of the judicial-bypass provision, which was the major focus of Justice Hecht's dissent but not of Justice Owen's. Owen, he said, dissented mainly because of how the court had treated lower courts.
People for the American Way and Eric Boehlert of Salon argue in response for 1) because Gonzales refers to dissenting "opinions" at the start of the paragraph with the "unconscionable" line in it and because Owen did, indeed, try to construe the statute narrowly.
You could even make a case for 3)--the words of the passage don't quite add up to an indictment of anybody without some additional interpretation of the context. Here's the Gonzales paragraph: "The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism." (The paragraph continues, but that's the end of the relevant section.)
You could interpret this passage a number of ways. Gonzales could, for example, be saying: Some justices want to read this bypass narrowly. But I've looked more closely at the legislative history than they have. For me to ignore what I know (but they apparently don't) would be an act of unconscionable judicial activism.
Personally, I don't buy 3). I buy 2). Gonzales refers specifically to Hecht's dissent twice and refers specifically to Owen's never. It's Hecht who got to him, and who he was implicitly slamming.
I also don't take Gonzales to be the last word in statutory interpretation or judicial decisionmaking--but for what it's worth, I think the conservatives have the better of the argument here.
Gonzales's decision can be found here.
[Sean Rushton 05/18 06:20 PM]
Word on the street is that Sen. Salazar (D, Colo) has proposed a compromise whereby the Dems allow votes on all currently filibustered appellate nominees and agree to self-restraint except under extreme circumstances. (I agree with Adler: how do they define extreme? Chief Justice Scalia?) Regardless, I am not sure the Dems could keep their caucus together for a Supreme Court filibuster, and if they did it would probably cost them seats in 2006. In exchange, the GOP gives up the nuclear option in the 109th Congress and the filibuster goes back to being what it always has been: a mainly theoretical Sword of Damocles, as Stuart Taylor called it.
The Party of Pinocchio
[Sean Rushton 05/18 06:18 PM]
In the last 24 hours, Sens. Richard Durbin (D, IL) Dianne Feinstein (D, CA) and Byron Dorgan (D, ND) have continued to spin the theory that 60 Clinton judicial nominees were “filibustered” by blue slips, holds, or other procedural devices, and that numerous other nominees in the 19th and 20th centuries were filibustered.
This is duplicitous. Two things are important when discussing filibusters – when and why one occurs. A filibuster happens when one or both of the means for limiting debate (unanimous consent or cloture) fail, not when they succeed. And temporary filibusters that do not abolish majority rule altogether can have a legitimate purpose (bargaining, delaying for more debate, etc.). Permanent filibusters intended to defeat a nominee who has majority Senate support are illegitimate.
Consider the words of moderate columnist Stuart Taylor:
“It is … misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as "filibusters" even genuine debates and short-term stalls that ended in cloture votes and confirmation.
“The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)
“And even the 1968 filibuster of then-Justice Fortas's nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas's request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote.”
Successful cloture votes are not filibusters. Generic delays or blockages are not filibusters. Blue slips and holds are not filibusters. For Durbin, Dorgan, and Feinstein to suggest otherwise is simply deceptive.
Dem Strategy Memos
[Sean Rushton 05/18 05:17 PM]
Charlie Hurt in the Washington Times takes us back to the filibuster fight’s roots.
[Ramesh Ponnuru 05/18 04:58 PM]
I've noticed an argument in a few places that what's dangerous about the proposed rules change is not (so much) that it will allow judges to be confirmed by simple-majority vote as that it will allow further rules change by simple-majority vote. The implicit question is "What's to stop a majority from getting rid of filibusters altogether?" Or: "from getting rid of majority-frustrating procedural devices altogether?"
The argument is made as though it's a decisive objection. But even if it's a good argument--if it establishes a reason worth considering not to make a rules change--it can't be a decisive objection.
Let me take a step back. What restrains the majority from getting rid of all minority powers now? A lot of things: a majority's fear of being in the minority in the future; the possibility that such an action will anger the public, or segments of the public important to members of the majority; widely accepted norms of acceptable political behavior. The day after a majority votes for the judicial-filibuster rules change, these restraints will not all disappear. It will be theoretically possible for a majority to abolish the filibuster altogether--as it is theoretically possible for it to do so now. But that does not mean that it will happen.
Now some of the restraints on the majority--such as those norms mentioned above--may well be weakened. It may be that the majority, having seen that it can get rid of judicial filibusters, will be more likely to change the rules in the future when a minority is causing it too much trouble. But the objection is, at least, weaker than it's usually put. The objection is: "This move would increase the probability that the majority will abolish other minority powers." And, presumably, a lot of things increase that probability--including, incidentally, the minority's abuse of the powers it enjoys. For example: Talking about a rules change increases the probability that minority powers will be reduced. That can't be a decisive objection to talking about it, can it?
Under ideal circumstances, I'd prefer the question of whether 51 senators can change the rules not be put to the test. I'd prefer it to remain a gray area. I'd like the minority to behave with restraint out of fear of provoking the majority into making a 51-vote rules change, and I'd like the majority to behave with restraint because it hasn't fully grasped its theoretical power to change the rules when it feels like it. But the Democrats' unprecedented use of the filibuster as a matter of routine has forced the issue. The possible consequences of allowing it to continue seem worse to me than the slightly increased probability that the filibuster will be abolished entirely.
Would Moveon Filibuster the Pope?
[Sean Rushton 05/18 03:52 PM]
Liberal opposition to the President’s judicial nominees has nothing to do with religious faith, right? But , look what's on MoveOn's website(Hat tip NRSC)
An Abuse Compounded
[Gerard V. Bradley 05/18 03:41 PM]
The constitutional (or so-called "nuclear") option is limited to debate over judicial nominees. Those who support it say that preventing an up or down vote on the president's choices for the federal bench is an abuse of the filibuster. Fair enough. These supporters usually say (or imply) that when it comes to ordinary legislation -- say, a highways bill or a civil rights measure -- the filibuster is legitimate because a minority ought to be able to stymy legislation it very strongly opposes. Maybe; the question is how to protect minority interests, and talking until the wee hours is just one way. But it is still worth noting that the legislative filibuster is itself an abuse, an abuse of the privilege of unlimited debate. "Unlimited debate" and what we call the "filibuster" are not the same thing. Certainly, one can affirm the proposition that any member of a deliberative body who has something germane to say ought to be heard, no matter how long it takes, without endorsing the proposition that some members who cannot defeat a proposal on the merits may properly band together and talk, talk, talk precisely to defeat the proposal, either by causing its proponents to abandon it or by talking until the session ends. This is, of course, exactly what the Democrats want to do. None of them suggests that Republicans want to vote on, say, Janice Brown before everyone gets his or her say. No Democrat says that Senator Frist's limit of one hundred hours debate is not enough to air the case against her.
Truth be told, there probably isn't a thing that Democratic senators want to say about Janice Brown that they have not said already.
Re: The Washington Post Is Unfair and Unbalanced
[Matthew J. Franck 05/18 03:38 PM]
Brother Whelan: Maybe I set the bar too low for "fair and balanced" at the Post. I cannot quarrel with your criticisms of certain Postie turns of phrase and characterizations. I just thought that the Post had done a public service by putting a pretty straightforward descriptive piece about Senate process on the front page. I still think that, despite a few slantings in the narrative, and I still recommend the story to interested readers. And it was I who compared it favorably to the NY Times--but to be fair there, at least the Times's hysteria was in an editorial!
[Kathryn Jean Lopez 05/18 03:20 PM]
From Bill Frist's office:
WASHINGTON -- U.S. Senate Majority Leader Bill Frist’s Communication Director Bob Stevenson today made the following statement in response to the Senate Democrats’ refusal to grant consent, effectively shutting down the Senate’s committees and preventing them from meeting after 11:30 a.m..
“What a difference a day makes. Less than 24 hours after he complained the Senate is ignoring issues important to Americans, Democrat Leader Harry Reid today threatened progress on an energy bill, a jobs bill, disaster relief, and a closed intelligence meeting.
“To close down the committees over the judges issue is not only counterproductive, it could hurt Americans looking for work or suffering at the gas pumps.
“Despite any differences over the judges, the American people want their government to continue working on issues important to them. They want the Senate to do its job.
“Despite his suggestions to the contrary, Senator Reid’s actions speak volumes. It would appear the Democrats’ threat to shut down the Senate has already begun.”
democracy in the senate
[Kathryn Jean Lopez 05/18 03:18 PM]
Here's NR's latest editorial on the judge debate.
RE: Not to be Insensitive
[Mark R. Levin 05/18 02:42 PM]
I'd prefer to see more of their senators crying.
Schumer on Senate Rule Changes
[Sean Rushton 05/18 02:16 PM]
The office of Sen. John Cornyn (R, Tex.) points out that though Sen. Schumer accused Senate Republicans of an activist reading of the Constitution in order to confirm activist judges, here’s what he said at a hearing on the issue of filibusters on judicial nominations:
Mr. KMIEC. . . . The real constitutional injury here . . . is the entrenchment of rules being imposed from one body onto the next.
Senator SCHUMER. Which could be changed by majority vote.
Mr. KMIEC. And should be changed by majority vote . . .
Senator SCHUMER. Right. That is why – I do not know why you say ‘imposed,’ because . . . the 51 Senators of the majority could propose changes in the rules.
[Judicial Nominations, Filibusters, and the Constitution: When a Majority is Denied Its Right to Consent, S. Hrg. 108-227, at 60 (2003).]
Not to be Insensitive
[Kathryn Jean Lopez 05/18 12:32 PM]
...but Kay Bailey Hutchison was just crying on the Senate floor, rounding up her personal portrait profile speech of Priscilla Owen. Can they just get down to business already and vote? It's not like anyone whose a blank slate on these issues is listening to these speeches.
[Bradford Berenson 05/18 11:47 AM]
A critical problem with some of the compromises now being feverishly hashed over by the senators in both parties who are afraid of an up-or-down vote (on filibusters, that is) is that the "extraordinary circumstances" escape valve is sure to be abused. How do we know this? Well, truly "extraordinary circumstances" ought to lend themselves to a bipartisan vote against confirmation. If a nominee is truly extreme or out-of-the-mainstream, then even a 45-senator minority ought to be able to persuade 6 Republican moderates to vote no. Almost by definition, any controversial nominee who can ultimately garner the support of a Senate majority is sufficiently mainstream to deserve confirmation. Thus, in truly "extraordinary circumstances," a filibuster shouldn't be necessary; good, old-fashioned debate and persuasion should do the trick.
The only wrinkle here is party discipline. There are times when leadership in both parties leans hard on its senators and doesn't allow them to vote their consciences. The Democrats are actually much more ruthless and effective about this: Their internal party rules give their leadership much more power to punish an apostate than do the Republicans' rules. Nonetheless, there are "leadership votes" or "caucus issues" where both parties essentially force their members to get in line. Perhaps to best compromise of all is for both parties to agree to the exercise of the nuclear option (i.e., that 50 votes will be sufficient for confirmation) and simultaneously that neither party will insist on party discipline in votes on judicial confirmation. That way, the constitutional principle of advice-and-consent by a majority of the Senate will be respected, but the power of rational persuasion will be given free rein, and the minority need not fear raw power plays by the majority.
Pravda & Things
[Shannen W. Coffin 05/18 11:41 AM]
I just like the fact that Ed Whelan used the phrase "poppycock" in discussing today's events.
[Shannen W. Coffin 05/18 11:24 AM]
Senate Majority Leader's opening statement on the need to end Democrat's obstruction on judges:
WASHINGTON, D.C. – U.S. Senate Majority Leader Bill Frist, M.D. (R-TN) made the following statement today on the Senate floor: Mr. President, I rise today as the leader of the majority party of the Senate.
But I do not rise for party. I rise for principle.
I rise for the principle that judicial nominees with the support of a majority of senators deserve up-or-down votes on this floor.
Debate the nominee for five hours. Debate the nominee for 50 hours.
Vote for the nominee. Vote against the nominee.
Confirm the nominee. Reject the nominee.
But, in the end, vote.
Senators, colleagues, let’s do our duty and vote.
Judicial nominees deserve an up-or-down vote.
In this debate, we’ll discuss two of the President’s judicial nominees.
These outstanding nominees -- Priscilla Owen and Janice Rogers Brown -- both had the support of a majority of senators in the last Congress.
But they were denied up-or-down votes.
I expect we’ll also discuss such consequential topics as the meaning of the Constitution and Senate rules and procedures.
No doubt this will be a spirited debate – as it should be.
And I also hope it will be a decisive debate.
So let us begin.
In the last Congress, for the first time in history, a minority of senators obstructed the principle of a fair up-or-down vote on judicial nominees.
That was unprecedented. Never in 214 years of Senate history had a judicial nominee with majority support been denied an up-or-down vote.
Yet it happened – again … and again … and again … and again … and again … and again.
A minority of Senators denied up-or-down votes not just once to one nominee … but eighteen times to ten nominees.
These men and women – these nominees -- are among the best legal minds in America.
And they all would be serving on the federal bench today -- all they needed was a vote.
But they weren’t given the courtesy of an up-or-down the vote on this floor.
The minority denied them a vote and set a new precedent.
The minority in the last Congress rewrote the rules of advice and consent.
They unilaterally increased the threshold for confirmation from 50 votes -- where it had been throughout history -- to 60 votes.
Now some in the minority say they’ll harden the precedent and obstruct judicial nominees in this Congress.
And if they aren’t allowed to do so, if the Senate returns to the way it worked for 214 years, they will retaliate.
They will obstruct the Senate’s other business.
They will obstruct the people’s business.
They will hold back our agenda to move America forward.
An energy strategy to reduce our dependence on foreign oil … held back.
An end to medical lawsuit abuse to reduce the cost of health care … held back.
A simpler, fairer tax code to create jobs and encourage economic growth … held back.
A minority of senators will hold America back just because a majority of senators want to do of all things what the American people expect us to do -- vote.
The minority should allow senators to fulfill our constitutional responsibility to give advice and consent and vote.
And they should allow America to move forward.
Mr. President, principles that endure for 214 years do not endure because they appeal to one party or another.
They endure because they serve a vital purpose.
In this case, the principle of an up-or-down vote ensures the President can fulfill his constitutional duty to appoint judges.
Let me read a passage in the Constitution:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States….
The Framers wrote in the Constitution that two thirds of senators must approve treaties.
But they specifically did not require the same number of votes to confirm judicial nominees.
After much debate and compromise, the Framers concluded that the President should have the power to appoint.
And the Senate should confirm or reject nominees by a simple majority vote.
For 214 years, Republican and Democratic minorities alike restrained themselves.
They abided by the Framers’ design and Senate tradition and gave nominees brought to the floor simple majority up-or-down votes.
Then came the last Congress.
With its obstruction, the minority set a new precedent -- 60 votes before the Senate could proceed to an up-or-down vote on a judicial nominee.
The threshold for advice and consent in the Senate was 50 votes.
In the last Congress, the minority party radically increased that threshold to 60 votes.
That was wrong. We will restore Senate tradition.
This unprecedented threshold gave the minority a virtual veto and effective control over the judicial appointments of the President.
The minority destroyed 214 years of Senate tradition, defied the clear intent of the Constitution, and undermined the democratic will of the American people.
You can’t get much more radical than that.
This new precedent cannot be allowed to stand in this Congress.
We must restore the 214-year-old principle that every judicial nominee with majority support deserves an up-or-down vote.
First, the American people elect their Senators for a reason. It’s to represent them. And they expect us to do to our job.
The Senate is a deliberative body. We are a proudly deliberative body.
But we also have certain responsibilities – which include giving advice and consent on the President’s judicial nominees.
When a judicial nominee comes to this floor and has majority support, but is denied a simple up-or-down vote, Senators aren’t doing their job.
And the sad fact is: we didn’t do our job in the last Congress.
The minority’s judicial obstruction has saddled President Bush with the lowest confirmation rate for appeals court nominees of any modern president.
This is disgraceful.
We owe it to the people we serve and to the Senate as an institution to do our job.
We should vote up-or-down on judicial nominees.
Second, the judicial branch also has a job to do. And it needs judges to do it.
Right now, there are 46 vacancies on the federal bench. That includes seventeen vacancies on appeals courts.
But it’s not just the vacancies themselves.
Qualified nominees who can fill those seats can’t get up-or-down votes to be confirmed in the Senate.
Let me give you an example.
Four of the seventeen vacancies on federal appeals courts are in the region that serves my home state of Tennessee.
Those nominees have been waiting a combined thirteen years for an up-or-down vote on the Senate floor.
Either confirm the nominees or reject them.
But don’t leave them hanging.
Don’t leave our courts hanging.
Don’t leave our country hanging.
If the nominees are rejected, fine, that’s fair. At least rejection is a vote.
But give nominees the courtesy of a vote.
Third, judicial nominees deserve up-or-down votes because they deserve to be treated fairly.
Let me tell you about the nominees we’re about to consider -- Priscilla Owen and Janice Rogers Brown.
Priscilla Owen has been a Texas Supreme Court justice for the last ten years.
She was reelected with 84% of the vote in 2000.
Her service has won praise from members of both parties.
Former Justice Raul Gonzalez, a Democrat, said:
I found her to be apolitical, extremely bright, diligent in her work, and of the highest integrity. I recommend her for confirmation without reservation.
Justice Owen has also been a leader for providing free legal services to the poor.
And she has worked to soften the impact of legal proceedings on children of divorcing parents.
On May 9, 2001, President Bush nominated Justice Owen to the fifth circuit court of appeals.
To this day, more than four years later, even though a majority of senators support her, she has been denied an up-or-down.
That’s just plain wrong. That’s unfair. Priscilla Owen deserves a vote.
Now let me tell you about Janice Rogers Brown.
She’s the daughter of an Alabama sharecropper.
She was educated in segregated schools and worked her way through college and law school.
She went on to serve in prominent positions in California state government.
Today Janice Rogers Brown is a justice on the California Supreme Court.
And she was retained as a justice by the people of California with 76% of the vote.
On July 25, 2003, President Bush nominated Justice Brown to the U.S. Court of Appeals.
To this day, nearly two years later, even though a majority of senators support her, she has been denied an up-or-down on this floor.
That’s wrong. That’s unfair. Janice Rogers Brown deserves a vote.
Janice Rogers Brown can get 76% of the vote in California, and Priscilla Owen can get 84% of the vote in Texas, but neither can get a vote to be confirmed in the Senate.
Why? The minority says they’re out of the mainstream.
Mr. President, are 76% of Californians and 84% of Texans out of the mainstream?
Denying Janice Rogers Brown and Priscilla Owen a vote is what’s out of the mainstream.
Justice Brown and Justice Owen deserve better.
They deserve to be treated fairly.
They deserve the courtesy of a vote.
The consequences of this debate are not lost on any member of this body.
Soon we -- 100 United States Senators -- will decide the question at hand.
Should we allow a minority of senators to deny votes on judicial nominees that have the support of a majority of senators?
Or should we restore the 214-year practice of voting up-or-down on all judicial nominees that come to this floor?
I have to believe the Senate will make the right choice.
We will choose the Constitution over obstruction.
We will choose principle over politics.
We will choose votes over vacillation.
And when we do, the Senate will be the better for it.
The Senate will be, as Daniel Webster once described it: “a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels.”
To realize this vision, we don’t need to look as far back as the Age of Webster, Clay and Calhoun.
All we must do is look at the recent past and take inspiration from the Era of Baker, Byrd and Dole.
For 70 percent of the 20th century, the same party controlled the White House and the Senate.
Yet no minority denied a judicial nominee with majority support an up-or-down vote on this floor.
Howard Baker’s Republican minority didn’t deny Democrat Jimmy Carter’s nominees.
Robert Byrd’s Democratic minority didn’t deny Republican Ronald Reagan’s nominees.
Bob Dole’s Republican minority didn’t deny Democrat Bill Clinton’s nominees.
These minorities showed restraint.
They respected the appointments process.
They practiced the fine, but fragile art of political civility.
Sure they disagreed with the majority at times.
But they nonetheless allowed up-or-down votes to occur.
This Senate must do what’s right.
We must do what’s fair.
We must do the job we were elected to do and took an oath to do.
We must give judicial nominees the up-or-down votes they deserve.
So let us debate.
Let senators be heard.
Let the Senate decide.
Let this body rise on principle and do its duty and vote.
Re: Unfair & Unbalanced
[Andy McCarthy 05/18 11:21 AM]
Ed, "Pravda on the Hudson" is very formal. My 33-month old calls it simply "Pravda." The preposition may be too much -- although he can say "Wall Street Journal" and "Paul Wolfowitz," so I suppose ...
The Washington Post Is Unfair and Unbalanced
[Edward Whelan 05/18 11:13 AM]
Matt correctly observes that the Washington Post’s coverage of filibuster reform is “pretty fair and balanced” compared with the New York Times’ “sputtering.” But it’s setting the bar far too low to credit the Post for surpassing the standard of unfairness set by Pravda on the Hudson. I think the Post’s story today by Mike Allen and Jeffrey H. Birnbaum is a textbook case of media bias. The Post has basically adopted Democrat talking points. Consider:
1. The headline and the opening sentence use the inflammatory term “nuclear option”.
This term has no descriptive value. Something like “filibuster reform” would be a far more objective and informative term.
It’s unfortunately true, of course, that many on our side have adopted the “nuclear” lingo. Indeed, NRO’s home page today uses the phrase “Going nuclear” to call attention to this blog. That may excuse the Post’s usage. But it’s instructive to compare the Post’s far greater reluctance to use the term “partial-birth abortion,” even though that term was in the title of the bill passed by Congress, has considerable descriptive value, and was used daily by opponents of the legislation.
2. “If Frist and the GOP majority prevail, a long tradition of filibustering will be narrowed.”
Poppycock. As Charles Krauthammer explained in the Post last week, “One of the great traditions, customs, and unwritten rules of the Senate is that you do not filibuster judicial nominees.”
3. “Republicans believe they have figured out how to use the chamber’s rules” to effect filibuster reform.
Oh, those wily Republicans. It is not until 16 paragraphs latter that the reader learns that the Republicans would be merely following a path previously trodden by Democrats.
4. Priscilla Owen, President Bush’s nominee to the Fifth Circuit, is “an abortion opponent.”
What underlies this characterization? Evidently the mere fact that Justice Owen construed the judicial-bypass provisions of the Texas parental-notification statute, and the Texas Supreme Court’s role in reviewing trial court findings of fact, somewhat more narrowly than some of her colleagues.
Deal Sticking Points
[Jonathan Adler 05/18 11:01 AM]
Today's WaPo story on deal negotiations suggests that several of the moderate Republicans are holding out. First, they are objecting that the "extraordinary circumstances" loophole gives the Dems too much leeway, especially considering that the deal would call for moderate Republicans to oppose any rule change for the rest of the 109th Congress. Second, they continue to wrestle with the Dem negotiators on which and how many judges would be sacrificed. According to the Post, the Republicans "argued that the Democrats had already successfully blocked, in Bush's first term, three other appellate court nominees who have not been renominated, and that they now should not be able to block three more." That the Republican moderates would hold out on these points is a promising sign that if there is a deal, it won't be an unmitigated disaster.
[Kathryn Jean Lopez 05/18 10:43 AM]
Many of those now citing Gonzales on Owen--incorrectly--voted against Gonzales for AG.
[Jonathan Adler 05/18 10:41 AM]
As Shannen notes, promising not to filibuster save for "extraordinary circumstances" is not much of a promise. Given that PFAW and the Alliance for Justice have already announced their intentions to demand filibusters of mainstream conservative nominees to the Supreme Court, even to replace Chief Justice Rehnquist, the proposed assurance is no assurance. Any deal that does not preclude the use of a filibuster for the Chief's replacement (assuming he retires this year) is nothing short of unilateral disarmament.
[Jonathan Adler 05/18 10:41 AM]
Confirmthem.com links to the draft text of the deal proposed by moderate senators of both parties.
P.S. ON GONZALES & OWEN
[Kathryn Jean Lopez 05/18 10:36 AM]
The current AG also said during his hearings: "I served with Judge Owen on the Texas Supreme Court. And I think she did a splendid job, a superb job as a judge. I think she would make a superb job on the Fifth Circuit, and that's why her name was recommended to the president."
GONZALES AND OWEN
[Kathryn Jean Lopez 05/18 10:35 AM]
This distortion will go on and on. Harry Reid just used it on the Senate floor: That Gonzales called Owen an "extremist." HE didn't and he set the record straight. Let me take you to the Washington Post of all places for clairfication. The Post printed the transcript from Gonzales's confirmation hearing, where he said: “My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.”
"Nowhere Else to Go"
[Mark R. Levin 05/18 09:59 AM]
Roger Pilon is worth reading today:
An excerpt I'd like to address: "In the grand constitutional design, federal courts exist mainly to secure liberty, because that's what the Constitution does, especially since ratification of the Civil War Amendments crafted by the heavily Republican 39th Congress. Courts are supposed to keep Congress within its enumerated ends and to ensure that both federal and state governments respect our rights, whether enumerated in the Constitution or not. They've never done that consistently, of course, but as the independent, non-political branch, courts are charged with enforcing the Constitution's restraints on power."
While I consider myself somewhat of an economic libertarian, I don't buy Roger's assertion that the framers, or subsequent Congresses and state legislatures through the Civil War amendments, set up the courts "... mainly to secure liberty." Their job is to interpret the Constitution. Judicial activists on the Left make essentially the same argument as Roger, usually dressing it up in phrases like "the living Constitution," "pneumbras and emanations," "doing justice," and "protecting rights." But it gets us to the same place, i.e., judicial supremacy. While Roger wants the courts to advance liberty, the Left wants the courts to advance social justice, which they confuse with liberty.
The Constitution is a governing document in which the framers sought to distribute power to ensure that no single branch, or the federal government as whole, would become too powerful. Hence, separation of powers and the 9th and 10th amendments. (The 9th and 10th amendments do not expand the authority of the federal courts. Both speak of rights and power belonging to the people. Likewise, the 14th amendment explicitly empowers Congress to enforce its provisions, not the courts.)
More to the point, there's nothing in Article III endorsing the proposition that the courts' main job is to secure liberty. The structure of the Constitution, including the notion of co-equal branches with authority to check each other, is intended to secure liberty in the context of a federal system. Indeed, Article III, rather than conferring ultimate jurisdictional authority on the judiciary, leaves it to Congress to determine much of the courts' authority. This is a constitutional check granted to Congress over the judiciary. In any event, nowhere in the Constitution is their explicit authority for Roger's proposition.
From a policy and ideological point of view, I reject Roger's proposition as well. The judiciary has been no more or less effective at safeguarding liberty than the other branches. Roger himself is disappointed in much of the judiciary's post-1937 jurisprudence. He writes, in part:
"With the floodgates opened, it soon became a majoritarian (or, just as often, special interest) free-for-all, with winners claiming the democratic "high ground"--as if that's what the Constitution were about. Liberty and limited government gave way to majoritarian democracy."
But the courts' anti-liberty record didn't begin with the New Deal. The most egregious decision was Dred Scott in 1857 which, among other things, overturned the Missouri Compromise banning slavery in the new territories. The elected branches led the war that ended slavery.
Moreover, as opposed to the elected branches--federal and state--when the courts make dire errors in judgment, that Roger concedes has occurred throughout the last 70 years, it is dramatically more difficult to redress them. Indeed, since Dwight Eisenhower's presidency, conservatives have lamented judicial activism and have attempted to appoint, in most cases, judges who respect the limits of their power. But this effort has failed.
For all practical purposes, the judiciary is supreme today and there are no effective limits to its power. And yet Roger rightly complains about the dimunition of our liberty.
"Time to Retire the Filibuster"
[Kathryn Jean Lopez 05/18 09:53 AM]
The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him.
For years Senate filibusters -- when they weren't conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor -- consisted mainly of negative feats of endurance. Senator Sam Ervin once spoke for 22 hours straight. Outrage over these tactics and their ability to bring Senate business to a halt led to the current so-called two-track system, whereby a senator can hold up one piece of legislation while other business goes on as usual.
The two-track system has been nearly as obstructive as the old rules. Under those rules, if the Senate could not muster the 60 votes necessary to end debate and bring a bill to a vote, someone had to be willing to continue the debate, in person, on the floor. That is no longer required. Even if the 60 votes are not achieved, debate stops and the Senate proceeds with other business. The measure is simply put on hold until the next cloture vote. In this way a bill can be stymied at any number of points along its legislative journey.
One unpleasant and unforeseen consequence has been to make the filibuster easy to invoke and painless to pursue. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.
Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now proposes to make such obstruction harder. Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.
Admirably, Mr. Harkin says he does not want to do that. He proposes to change the rules so that if a vote for cloture fails to attract the necessary 60 votes, the number of votes needed to close off debate would be reduced by three in each subsequent vote. By the time the measure came to a fourth vote -- with votes occurring no more frequently than every second day -- cloture could be invoked with only a simple majority. Under the Harkin plan, minority members who feel passionately about a given measure could still hold it up, but not indefinitely.
Another set of reforms, more incremental but also useful, is proposed by George Mitchell, who is retiring as the Democratic majority leader. He wants to eat away at some of the more annoying kinds of brakes that can be applied to a measure along its legislative journey.
One example is the procedure for sending a measure to a conference committee with the House. Under current rules, unless the Senate consents unanimously to send a measure to conference, three separate motions can be required to move it along. This gives one senator the power to hold up a measure almost indefinitely. Mr. Mitchell would like to reduce the number of motions to one.
He would also like to limit the debate on a motion to two hours and count the time consumed by quorum calls against the debate time of a senator, thus encouraging senators to save their time for debating the substance of a measure rather than in obstruction. All of his suggestions seem reasonable, but his reforms would leave the filibuster essentially intact.
The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long way toward making the Senate a more productive place to conduct the nation's business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.
You just read a New York Times
editorial, c. January 1, 1995.
Moderates Attempted Dealmaking
[Shannen Coffin 05/18 09:37 AM]
American Spectator has this item on the rumored "deal" to stop the filibuster. The problem, as the article suggests, is that the Democrats want to be able to use the filibuster in "extraordinary circumstances," which apparently means any day that the earth revolves around the sun. If you think about it, that is a pretty extraordinary thing, but it is a thin reed on which to build a deal.
Filibusters & Judicial Quality
[Richard W. Garnett 05/18 09:07 AM]
Here is an op-ed by Steffen Johnson, a lawyer with the Office of Legal Counsel, called "How Filibusters Drain Quality." Johnson writes:
As the moment of truth approaches for Senate Republicans deciding whether to go "nuclear" to end Democratic filibusters of federal judicial nominees, the debaters continue to overlook the most important reason filibusters should be laid to rest: They are a substantial threat to a genuinely distinguished and intellectually diverse judiciary.
Beyond the issue of who controls the presidency or the Senate, filibustering judges is plainly a bad idea. It enables the minority party to blackball any nominee with any record of distinction, since any nominee worth his or her salt will have offended one or another interest group in the course of prior government or academic service. This means the courts will be filled with undistinguished, inoffensive "moderates" rather than a diverse group of the most talented judges from both parties.
Read the whole thing.
Janice Rogers Brown
[Kathryn Jean Lopez 05/18 08:53 AM]
By the way: There's been a debate happening in The Corner between Ramesh Ponnuru and Peter Kirsanow over Peter's defense of Brown yesterday.
Re: Wine Gone to Their Heads?
[Andy McCarthy 05/18 08:06 AM]
Brother Franck makes an excellent point, and one that -- as he can explain with more depth than I can -- is important in understanding the current divide about what kind of judiciary we ought to have.
The same thing that bothers Matt about the coverage of the vino case struck me in particular in the coverage of the Gitmo detainee cases (especially Hamdi) and all of the sentencing cases that culminated with Booker and Fanfan. In Gitmo, two originalists, Scalia and Thomas, were -- so far as I could tell -- faithful to their originalist philosophy and yet came out in diametrically opposite places (Scalia emphasizing fidelity to the habeas corpus suspension clause; Thomas the executive's national security powers). In the sentencing cases, we've found liberals parting ways (Ginsberg, for example, siding with Scalia and Thomas's emphasis on the grand jury and trial rights of defendants; Breyer going with Rehnquist, O'Connor and Kennedy in defense of sentencing schemes that shift power from juries to courts).
The point here is (at least) two-fold. First, the partisan labels of judges are often not very useful -- when it gets down to the brass tacks of cases. Many cases are complex, they don't present as straight-up cultural or free-market issues, but frequently as a complex mix of substantive and procedural questions. Pigeon-holing these folks as "conservative" or "liberal" is often not a useful barometer for how they will come out in a given case.
Second, and more importantly, it is no slight to judges to say they should content themselves with their actual job, which is interpreting the law as it exists rather than taking a walk on the wild side of policy imposition and judicial legislating. Their actual job is more than difficult enough to do.
May 17, 2005
And So It Begins?
[Matthew J. Franck 05/18 07:59 AM]
While the New York Times sputters about Priscilla Owen and Janice Rogers Brown being "singularly unqualified" and fulminates about Senator's Frist's coming "attempt to scrap the opposition's right have a say," the Washington Post provides a pretty fair and balanced look at how events may develop this week in the Senate. The Post's writers, Mike Allen and Jeff Birnbaum, refer to an article (PDF file) in the Harvard Journal of Law and Public Policy that lays out a "virtual script for what could happen next."
Oh the Horror!
[Matthew J. Franck 05/17 05:06 PM]
An e-mail list I'm on brings word that Harvard Law School's Laurence Tribe has sent out an "open letter" to those who have eagerly awaited the second volume of the third edition of his doorstop of a treatise, American Constitutional Law. He remarks, in evidently wistful and frustrated tones: "I have come to the sobering realization that no treatise, in my sense of the term, can be true to this moment in our constitutional history--to its conflicts, innovations, and complexities."
For this he should call himself Laurence Tripe. Some of us who toil in this field have gotten along just fine for years without so much as owning a copy of Tribe's magnum opus, which evidenced all the self-importance of the sentence just quoted (but at much greater length), without the compensation of any usable wisdom on the subject of the Constitution.
Readers should recall the recent revelation, by Ramesh Ponnuru in NRODT, that Tribe is something of a fabulist about . . . well, about himself. So perhaps Tribe's assumption that hearts will be broken all over ConLawLand by the news of his abandoned treatise project is understandable. As for the real reason he is giving up on it? Well, we know some things also from that exposé a few months ago by Joseph Bottum in The Weekly Standard (sorry, no free link for nonsubscribers), revealing the extent to which Tribe plagiarized, in another of his books, the work of the incomparable gentleman and scholar Henry J. Abraham of the University of Virginia politics department. (A matter that Harvard just recently swept under the rug.) Maybe Tribe has given up on his treatise because he could no longer find research assistants willing to plunder the works of political scientists for him.
[Sean Rushton 05/17 04:49 PM]
Conservative lawyer and columnist Bruce Fein is out with a collection of his recent articles on the judicial confirmation and filibuster debates.
Wine Gone to Their Heads?
[Matthew J. Franck 05/17 04:03 PM]
This morning's Wall Street Journal (subscription only) praises yesterday's Supreme Court ruling that struck down state laws discriminating against out-of-state wine makers and favoring in-state vintners' direct sales to consumers. But I can't quite join the party the Journal's editors throw when they include sentences like this:
"Notably, the Court's conservatives were split, with Antonin Scalia siding with the free-market majority and William Rehnquist and Clarence Thomas in the states-rights minority."
Maybe it's just my pet peeve, but this is lazy journalistic talk of the sort that I don't like when I see it in the New York Times or Washington Post, so I have to take the Journal to task for it as well. What irks me is the facile identification of the contending sides on the court with ideological positions. Viewed through the Journal's lenses, the Court is populated with "liberals" and "conservatives," and its rulings may be characterized in the same way. What interests them in the sentence quoted above is that the case presents us with two kinds of conservatism: devotion to the free market on one side, to states' rights on the other. Yesterday, in the Journal's jurisprudential world, one kind of conservatism had more votes than the other, and the rest of the editorial praises the ruling on strictly results-oriented grounds.
The problem with this way of looking at the ruling is not that it fails to account for why the Court's equally divided "liberals" voted as they did--though the editorial does fail in that way. The real problem is that it fails to take the arguments of the justices seriously on constitutional terms rather than ideological ones. Yesterday's ruling was either correct or incorrect as a constitutional matter, but you will learn from the Journal only that the editors like its results, which is not the same thing as praising its correctness. (This is not just a journalistic problem--I find myself among a dwindling number of academic constitutional scholars who take seriously the proposition that there is a real Constitution apart from one's ideological commitments.)
To put it plainly: either the "conservative" Scalia was right--constitutionally right--to join the "moderate" Kennedy and the "liberal" Souter, Ginsburg, and Breyer, or he was wrong--constitutionally wrong. And the "conservative" Thomas was either right--constitutionally right--to write in dissent for the "conservative" Rehnquist, the "moderate" O'Connor, and the "liberal" Stevens, or he was wrong--constitutionally wrong.
Can't we first talk about a case that way--in the Constitution's own terms--rather than leaping immediately to ideological labels as though they were always explanatory of something? The reader may notice that I have said nothing about my own view of whether the case (Granholm v. Heald) was correctly or incorrectly decided. Here I will only say that my constitutional opinion and my political preference are at odds with each other. If that's so for me, could it also be true for some of the justices?
Putting Judicial Nominees in Perspective
[Edward Whelan 05/17 03:03 PM]
Time for a bit of perspective. As Senate Democrats attack and distort the records of President Bush’s judicial nominees, it is instructive to examine the record of judicial nominees that Senate Democrats regarded as stellar. Let’s begin with Rosemary Barkett, who was nominated by President Clinton to the Eleventh Circuit Court of Appeals in 1993 and was confirmed in 1994.
Senator Hatch’s statement on the floor of the Senate summarized the overwhelming case against the Barkett nomination. Simply put, Barkett’s record was demonstrably awful across the board. Yet this is the nominee whom Sen. Kennedy described as an “outstanding jurist” and whom all the Senate Democrats, except for Sen. Byrd, voted to confirm.
Here are some highlights from Sen. Hatch’s statement. (For ease of reading, I’ve made minor edits in brackets and have added the headings and bullet marks below.) If you read nothing else, read about the Dougan case under the Death Penalty heading.
Equal Protection and Substantive Due Process
· [I]n her dissent in University of Miami versus Echarte, Chief Justice Barkett voted to strike down statutory caps on noneconomic damages in medical malpractice cases. In addition to a variety of State law grounds, her dissent also relied upon the Federal equal protection clause. Without citing any Federal precedent, she asserted: “I fail to see how singling out the most seriously injured medical malpractice victims for less than full recovery bears any rational relationship to the Legislature's stated goal of alleviating the financial crisis in the medical liability insurance industry.”
In fact, the rational relationship between the means and the goal is self-evident and was clearly spelled out by the legislature. One might well disagree with caps on noneconomic damages as a policy matter. But, Chief Justice Barkett's purported application of rational-basis review is a stark overreach and a flagrant misuse of the Federal equal protection clause. At her hearing, she acknowledged that she should not have relied on that clause.
· In another case, Shriner's Hospital versus Zrillic, the nominee again relied on the rational basis standard under the Federal equal protection clause--as well as on a variety of State law grounds--in striking down a statute. In her opinion, she took the remarkable position that `underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test.' This distortion of rational basis review into something akin to strict scrutiny clearly flies in the face of equal protection principles set forth in nearly 50 years of U.S. Supreme Court precedent.
· Justice Barkett's misreliance on the Federal equal protection clause in these two cases is all the more striking to me in light of her partial dissent in Foster versus State. There, in seeking to rely on a theory of statistical racial discrimination in a challenge to the death penalty, she expressly acknowledged that the Federal equal protection clause was unavailable to her in light of a Supreme Court decision, McCleskey versus Kemp, squarely rejecting her view under the U.S. Constitution. Accordingly, in her Foster opinion she only relied on the Florida equal protection clause. Yet, she did not recognize the error of relying on the Federal Constitution when she wrote her opinions in Echarte and Zrillic. Her failure to appreciate in these two opinions that Supreme Court precedent foreclosed her reliance on the U.S. Constitution deeply troubles me.
· I also find Chief Justice Barkett's reliance on Federal substantive due process very troubling. In State versus Saiez, she wrote an opinion holding that a State law criminalizing the possession of embossing machines capable of counterfeiting credit cards `violated substantive due process under the Fourteenth Amendment to the United States Constitution.' Briefly, let me just say here, this expansive, substantive use of the due process clause is insupportable under Supreme Court precedent. The nominee testified that she was really relying on State due process grounds and her inclusion of the Federal due process clause was `careless'.
· [I]n Stall versus State, Chief Justice Barkett joined a dissent striking down a State obscenity statute on State law grounds. She also wrote separately in an opinion that, again, is sweeping and overbroad. There are several problems with this dissent.
First, her statement that, `A basic legal problem with the criminalization of obscenity is that it cannot be defined' is flatly contradicted by the U.S. Supreme Court's landmark opinion in Miller versus California (413 U.S. 15 (1973)), which Chief Justice Barkett does not even acknowledge, much less discuss.
Second, she sweepingly claims that an obscenity law such as the one in Florida violates `every principle of notice and due process in our society'--not, I might add, a statement limited to state law principles, and, again, contradicted by the Miller decision.
Third, Chief Justice Barkett's opinion mischaracterizes the Florida law in the case: That law does not turn on the `subjective' view of a handful of law enforcement people and jurors or judges, as she incorrectly suggests. The Florida law incorporates the standard set forth by the U.S. Supreme Court in Miller. The law bans materials that, judged by contemporary community standards, appeal to the prurient interest, that depict or describe, in a patently offensive way, specifically defined sexual conduct, and that lack serious literary, artistic, political, or scientific value. Thus, the role of jurors or judges under this law would not be to make their own `subjective definition' of what is obscene, but rather to discern and apply existing community standards.
· With respect to criminal law issues aside from the death penalty, I believe that the nominee has too often erroneously come down on the side of lawbreakers and against police officers and law enforcement. She has exhibited an unduly restrictive view of the Fourth Amendment that would hamstring the police, especially with regard to controlling drugs.
For example, in Bostick [v. State], a case involving cocaine trafficking, Justice Barkett adopted an across-the-board, per se ban on passenger searches on intercity buses even though Supreme Court precedent clearly called for an analysis of a search's legality based on all of the particular circumstances of the search. The U.S. Supreme Court reversed her.
The U.S. Supreme Court also reversed her in the Riley case, where her misapplication of precedent would have led to dismissal of charges against criminals growing marijuana. In yet another drug case, the Court criticized her overbroad reading of precedent.
In her dissent in a case called Cross, Justice Barkett refused to credit the testimony of police officers that they had seen cocaine packaged in the same peculiar way on hundreds of occasions in their combined 20 years of law enforcement. In so doing, she ignored Florida precedent cited by the majority that provided that the observation of an experienced policeman of circumstances associated with drugs could provide probable cause for an arrest.
In another dissent, she ignored settled principles enunciated in U.S. Supreme Court precedent in finding that someone who was growing marijuana in his backyard had his fourth amendment rights violated when police, acting on a tip, looked over a 6-foot fence, spotted the marijuana plants and then obtained a search warrant. Rather than inquiring whether the defendant had an expectation of privacy that was objectively reasonable, Chief Justice Barkett simply displayed her personal opposition toward what she regarded as overly intrusive law enforcement.
· Justice Barkett has also written opinions striking down narrowly drawn laws that ban loitering for the purpose of prostitution and drug dealing. These opinions are badly flawed and misapply precedent. Moreover, they seriously disable communities from preventing harmful crime.
· If a nominee exhibits a clear tendency to strain for unconvincing escapes from the imposition of the death penalty in cases where that penalty is appropriate, then that raises concerns in my mind about the nominee's fidelity to the law, no matter how many times the nominee may have upheld the death penalty in other cases. From my review of her record, I have concluded that Justice Barkett clearly exhibits such a tendency. [O]ne of Justice Barkett's dissenting opinions [(in Foster v. State)] would render the death penalty virtually unenforceable, unless imposed on the basis of racial quotas. Overall, I believe that Justice Barkett, in reviewing death sentences, views aggravating circumstances too narrowly; construes mitigating circumstances too broadly; creates unjustified categorical exclusions from death penalty eligibility; subjects the death penalty to racial statistical analysis that would paralyze its implementation, as I have just discussed; and creates procedural anomalies.
· Dougan versus State is a 1992 Florida Supreme Court case. Dougan was the leader of a group that called itself the Black Liberation Army and that, according to the trial judge, had as its `apparent sole purpose * * * to indiscriminately kill white people and thus start a revolution and a race war.' One evening in 1974, he and four other members of his group, armed with a pistol and a knife, went in search of victims. They picked up a white hitchhiker, Steven Orlando, drove him to an isolated trash dump, stabbed him repeatedly, and threw him to the ground. As Orlando writhed in pain and begged for his life, Dougan put his foot on Orlando's head and shot him twice--once in the chest and once in the ear--killing him instantly. Subsequent to the murder, Dougan made several tape recordings bragging about the murder, and mailed them to the victim's mother as well as to the media. The following excerpt from one of the tapes aptly illustrates the content: “He was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”
The Florida Supreme Court upheld the death penalty for Dougan. Justice Barkett and another Justice joined a remarkable and very disturbing dissent by Justice McDonald in which she voted to reduce the death penalty to life imprisonment, with eligibility for parole in 25 years[:] “This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan's life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.
“To some extent, [Dougan's] emotions were parallel to that of a spouse disenchanted with marriage, full of discord and disharmony which, because of frustration or rejection, culminate in homicide. We seldom uphold a death penalty involving husbands and wives or lovers, yet the emotion of that hate-love circumstance are somewhat akin to those which existed in this case.
“Such a sentence reduction should aid in an understanding and at least a partial reconciliation of the wounds arising from discordant racial relations that have permeated our society. To a large extent, it was this disease of racial bias and discrimination that infect an otherwise honorable person and contributed to the perpetration of the most horrible of crimes. An approval of the death penalty would exacerbate rather than heal those wounds still affecting a large segment of our society.”
[Kathryn Jean Lopez 05/17 01:02 PM]
certainly has the calm-before-the-storm feel today.
Judges and Democracy
[Richard W. Garnett 05/17 09:08 AM]
Over at "Mirror of Justice," I have a post in response to Philip Kennicott's essay in today's Washington Post, "Judge Not." He asks whether (what the author sees as) the outbreak of hostility to the persons and work of judges in popular discourse--particularly among religious conservatives--should worry Catholics, academics, and others who--like judges--inhabit spheres that are "protected" from the "leveling power of untrammeled democracy." In response, I suggested (among other things) that "[t]he complaint about judges is (or, at least, should be) not that they are judges, or that they are not elected, or that their rulings go against popular opinion; it should be that some are handing down excessively ambitious and legally incorrect rulings in contexts and with respect to issues to which their authority does not properly extend. To think that not-democratically-accountable power is worrisome in some contexts (for example, the debate over whether or not a community should embrace a sweeping abortion license) is not (necessarily) to endorse "democracy" all other contexts (for example, the debate over the divinity of Christ)."
May 16, 2005
Reid Calls off Negotiations.
[Sean Rushton 05/17 12:08 AM]
Looks like its go time.
[Mark R. Levin 05/16 05:54 PM]
According to Reuters, Harry Reid needs help ... I mean, more votes.
"With time running out for a possible compromise, U.S. Senate Democratic leader Harry Reid appealed to Republican colleagues on Monday to break ranks in the battle over President Bush's judicial nominees.
"Reid said if a handful of Republicans side with Democrats, they could preserve Senate rules that help check the powers of the White House by permitting procedural roadblocks, known as filibusters, against candidates for the federal bench.
"'I'm confident and hopeful that there will be six Republican senators who will be profiles in courage," said Reid of Nevada in a Senate speech. "I believe there must be at least six out there.'"
Democrats said they were a couple of votes short in this struggle that could shift the balance of power between Congress and the White House
Kmiec v. Tribe on Judicial Filibusters
[Sean Rushton 05/16 05:32 PM]
Harvard's Professor Lawrence Tribe recently posted on line his reasons against ending the filibuster as it has been applied to judicial nominees. Below is Pepperdine Professor Doug Kmiec’s counter-argument in favor of ending judicial filibusters. (Professor Tribe in regular font; Professor Kmiec in italics.)
The Nuclear vs. The Constitutional Option –
The constitutional instruction to the Senate is to give "advice and consent," not to confuse and equivocate.
Point – Counterpoint
There's is a good reason the Republicans have used the phrase "Nuclear Option" to describe the technique they threaten to deploy in order to change the rules under which the Senate performs its constitutional role of "advise and consent" with respect to presidential nominations to the federal bench. Nuclear weapons, we all know, are uniquely threatening. The reason isn't simply that they devastate everything within a defined radius from ground zero. Other weapons have been devised that can do that. What is distinctive about nuclear weapons is that they leave behind a radioactive legacy that poisons generations yet unborn. Thus they cast a permanent shadow over the future. In two important and distinct respects, what the Majority Leader threatens to do is not merely nuclear but thermonuclear in its implications.
First, the substantive area in which the nuclear device is to be detonated is particularly rich in radioactive materials whose half-life is measured not in years but in decades. Each federal judge, and ultimately each Supreme Court Justice, who is confirmed by the new technique will serve for life. Such a judge, even when wielding only a single vote, is empowered to alter the legal landscape we must all share not just during the current Bush presidency but through a likely succession of presidents of both parties and of many different philosophical bents. This President and Senate were put in power by a narrowly divided national electorate not because it prefers judges in the mold of Justices Scalia and Thomas, the president's unabashed role models for the job, but principally because of 9/11 and a reluctance to change leaders in the midst of the "war on terrorism."
This assumes something very much not in evidence - that there is a singular published and accepted reason for an electoral outcome. The president campaigned in direct reference to, among other matters, the war, reforming social programs, as well as the appointment of men and women of appropriate judicial demeanor to the bench.
How absurd it is in a constitutional democracy for that national mood suddenly to be transformed, by an unyielding president and a rigidly ideological Senate majority, into a mandate to project into the distant future, and over the opposition of more than enough Senators to have precluded confirmation under the rules that prevailed until now, a firm determination to roll back reproductive freedom, weaken the separation of church and state, disengage from the rest of the world on issues like global warming and genocide, and take other steps so radical that we may well bequeath our children and grandchildren a nation profoundly different from the one we take for granted.
This is simply a partisan preference for some policy outcomes over others. In some respects, as a matter of politics, I may share Professor Tribe's preferences, though in others I would not. Our preferences as voters and residents of Massachusetts and California, respectively, matter, but they do not determine the meaning of the law or the Constitution. Separating preference from law does illustrate President Bush's point, however - judges should be appointed who will follow the law as enacted by the people, not as desired by the judges, or Professor Tribe and myself.
Second, unlike the standard procedure in which a small nuclear explosion provides the heat that generates the thermonuclear fusion of a hydrogen bomb, here it is a hydrogen bomb that will have to be detonated first, triggering the nuclear explosion of a radically altered judicial branch. For a change in the currently governing Rules of the Senate is a necessary prerequisite of this transformation in the composition of the judiciary - a transformation that will begin with a handful of circuit court judges but that is of course designed to be reenacted each time there is a vacancy on the Supreme Court. But the currently governing Senate Rules, including those that regulate the conduct and ending of a filibuster by a cloture vote, include a vitally important "meta-rule" providing that the rules themselves may be altered only by a specified supermajority vote.
Yes, the Senate has the power to set its own rules, including the rule on how to change the rules. The Senate has been setting, and re-setting, its rules from the beginning. What has been forgotten, or is being conveniently overlooked, is that every Senate should have at least one opportunity to approve the continuation of carry-over rules. Without this singular opportunity, the Senate is no longer a fully representative body - representing the people who put them in office -- but merely the dead hand of the past.
Full Senate consideration is exactly what the framers anticipated. The Senate's very role in the confirmation process was justified by Hamilton in Federalist Nos. 76 and 77 on the supposition that it would be exercised "by the whole body, by an entire branch of the legislature." It is only the regrettable, latter-day onset of Democrat filibusters that have defeated nominees for whom a majority of the Senate has expressed support.
That the juxtaposition of majority approval with defeat is deeply problematic for a democracy explains why it is unprecedented to require 60 members (the number needed to end a filibuster) to confirm judges. A judicial filibuster was attempted successfully only once in our history, when LBJ tried to elevate Abe Fortas to be Chief Justice and his nomination went seriously awry over personal financial questions. But Fortas never had the support of a majority of the Senate, and he quickly withdrew. There was some filibuster talk over a handful of Clinton nominees (Breyer, Barkett, Sarokin, Paez and Berson), but wisely, the full Senate voted on each and each went on to serve.
Obstructing judicial nominees with majority support is no small matter. Doing so not only thwarts the President, it also exacerbates the increasingly heavy workload of the independent judicial branch - which, in turn, affects anyone whose life, liberty or property is at issue before a federal tribunal.
The Constitution allows the Senate to set its own rules. Yet, this rule-making power is not unlimited. No one should contemplate the Senate ever adopting a rule categorically excluding women or African-Americans or Catholics from serving on the federal bench. The Bill of Rights would rightly trump such bias. And while there is no similar trump denying a 60 vote requirement to cut off debate on judicial nominations, this super-majority vote requirement is nevertheless constitutionally deficient for one simple reason: this Senate - the 109th - has never adopted it.
The 60-vote cloture rule is a carryover from a previous Senate and merely imposed on the present body. Every two years, the Senate's composition changes as one-third of its membership stands for election. An ever enlarging group of Senators, led by Senator John Cornyn (R_TX), has rightly asked why they, as more recently elected members, have never had a say over Senate process.
According to the present Democrat leadership, the new guys are just out of luck. You see, they say, another rule requires 67 votes to change the 60 vote rule. And where did the 67 vote rule come from? Yep, it, too, comes from a previous Senate. And so it goes. The people of the several States elect new Senators, but if Senator Reid is to be believed, the new folks are stuck with old rules effectively denying their representational voice.
This cannot be, and is not, the law. An unbroken chain of Supreme Court rulings anchored in English common law as venerable as Sir William Blackstone provides that "every succeeding Legislature possesses the same jurisdiction and power. . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."
That the Senate Democrats have disregarded this ancient precept and are operating outside the Constitution has prompted Senator Frist to contemplate asserting the prerogative of a majority of the existing Senate membership to change the carryover rules to allow a similar majority to exercise the power of advice and consent. Derisively, this has been dubbed by the Democrats as "the nuclear option," but in truth, it is the constitutional one.
And don't just take my word for it. Consider the following:
"[T]he members of the Senate who met in 1789 and approved the first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . .Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote."
"By what logic can the Senate of 1917 or 1949 or 1959 bind the Senate of [today]. . . .The immediate issue is whether a simple majority of the Senate is entitled to change Senate rules. . . .[I]t is clear that this question should be settled by a majority vote."
"[Senate rules] could be changed by majority vote."
The authorities: Senator Robert Byrd (D-WVA), the dean of Senate procedure and author of a magisterial history of the Senate on the Senate floor in 1979; Senator Edward M. Kennedy (D-MA) on the floor in 1975; and Senator Charles Schumer (D-NY) in colloquy with me before the Senate Judiciary Committee in 2003.
That rule stands in the way of deploying the nuclear option for the simple reason that its proponents are far from having the supermajority required by the meta-rule. Their solution? Equally simple: Knock the meta-rule aside either by ignoring it or by "redefining" its meaning by the same narrow majority that wants to take the action that the meta-rule says it can't take absent a stronger majority -- here, confirming all of the Bush nominees to the federal bench by demanding an up-or-down vote. Cutting through the arcane language and the cumbersome procedural maneuvers involved in this revolutionary step, its vice is transparent. We teach our kids when they're little that rules are made to be followed; that unjust or unwise rules can be challenged and ultimately changed; that the rules for challenging or changing them are especially important; and that those rules, at least while we're playing the same game, can't be broken but must be obeyed. What's true even of a child's game is doubly true in adult political life. Ripping up the rules for changing the rules is unacceptable if one believes in a rule-governed democracy. For a mere majority simply to plow ahead and have its way even when the rules in place haven't been changed in accord with their own provision for change is to reduce rules to mere suggestions. And this means, in the particular case of judges, that any time the same political party is in control of the two political branches, even the thinnest congressional majority can see to it that the third branch is dedicated for decades to precisely the ideology that the two political branches at that moment represent.
Again, this is more of a complaint directed at the consequence of losing the last election. To the extent that the argument is meant to suggest that every newly composed Senate lacks the authority to set its own rules for proceeding, it is not supported by history or text.
One needn't be a fan of the filibuster as a device for making the Senate proceed in slow motion and occasionally freeze in its tracks in order to recognize the enormity of the explosion that threshold step entails before one confirms even a single judge. It is precisely because the Majority Leader, Senator Frist, must likewise see how massive an explosion is involved that he and others offer the reassurance that their nuclear device will be exploded "only" for federal judicial appointments.
Senator Frist has chosen merely to address the unprecedented use of the filibuster against judicial nominees who have majority support in the Senate. The broader merits or demerits of the filibuster may be open to question beyond this - after all, many believe it was disgracefully deployed to deny civil rights for many years - but that is a matter for the Senate to decide as the occasion warrants.
It's a strange "only," given the lifetime character of the power being conferred on these judges and the far-reaching consequences of its exercise, and it's a hollow "only" because there's clearly no way to make good on a promise that this bomb will be exploded in no other setting and that the Senate will not transform itself into a legislative chamber that, like the House of Representatives, adopts a different rule for debating and passing each action it is about to consider. For the Constitution's Advice and Consent Clause (Article II, Section 2, Clause 2) speaks in the same breath of the Senate's role in confirming "Judges of the Supreme Court" and "all other Officers of the United States" covered by the Clause. And the provision empowering each chamber to "determine the Rules of its Proceedings" (Article I, Section 5, Clause 2) does not treat differently the power to promulgate or alter rules depending on the endpoint of the proceedings governed by those rules -- whether that endpoint is the confirmation or rejection of a nomination, the ratification or defeat of a treaty, the passage or defeat of a bill, the override of a presidential veto, or the promulgation of a constitutional amendment for consideration by the states. Although the Constitution itself sometimes specifies that a 2/3 majority is needed for one or another step, it leaves to each chamber of Congress the power to decide how to proceed, both when a 2/3 majority is ultimately needed (as with the ratification of treaties and the override of presidential vetoes) and when a mere majority will in the end suffice (as with confirming judges or other officers). And if the Senate may break the very rules it has made to regulate how it will proceed in any of these settings, then it may break the rules for all of them.
That the Constitution specifically calls for a super-majority in several specific instances, but not others, illustrates that there is nothing radical - nuclear or thermo-nuclear - about proceeding by majority determination elsewhere.
For all practical purposes, the pact that connects the current Senate with the Senate that sat in the First Congress -- and the pact that most significantly differentiates the Senate as a continuing body with staggered replacements and with fixed modes of proceeding, from the House as a new body every two years and with rules of proceeding fashioned ad hoc for every measure -- will have been broken once the power has been asserted to define the Senate's rules anew whenever a majority is sufficiently determined to have its way and is willing to override its own rules to do so.
The filibuster emerged well after the founding, and quite by accident, when the standard means for calling the question were rather unthinkingly changed; the filibuster is no part of the intrinsic constitutional design.
Having played the game in violation of its own rules "just this once," the Senate will have crossed an invisible but crucial line, making it difficult if not impossible to resist breaking the rules again whenever a majority of the Senators wish to do so, as a majority -- and someday a Democratic majority -- most assuredly will. The step proposed is one by which the Senate would have crossed the Rubicon and lost its virginity, and it is not the kind of loss that can be reversed or forgotten.
Whatever ultimate political price those Republican Senators who take that fateful step may pay, and whatever price might be exacted by a frustrated and confused electorate from those (mostly Democratic) Senators who retaliate by using the many formal and informal devices available for slowing the work of the Senate on all other business, all of us will undoubtedly have been made to pay a heavy price indeed. We will all have lost the great virtues of having an upper chamber in our national legislature that not only takes its "advice and consent" role seriously, but also believes in proceeding according to rules established in advance rather than making up and changing the rules as it goes along. It is because I so greatly lament that loss, and not because I fervently love the filibuster -- a device that I would be the first to concede has been deployed at least as often for ill as well as for good -- that I shudder at the thought of the thermonuclear step that is being proposed.
The Senate should take its advice and consent role seriously; that is why the filibuster should not be used to deny the full chamber the opportunity to speak its mind upon these important nominations.
Professor Tribe and I agree wholeheartedly that the integrity and independence of the judiciary is vital to our constitutional success. Our constitutional assessments do differ over where and when it is appropriate for the courts to set aside the democratic choices of the people. This is a significant question; it is one that is recurring; it is one open to legitimate debate in the Senate - so have the debate in general, or each and every time a nominee is presented, but after a reasonable and responsible period, the debate should be concluded and a vote taken on individual nominees. An offer of public service by any man or woman deserves this courtesy. The constitutional instruction to the Senate is to give "advice and consent," not to confuse and equivocate.
Clinton’s Rubber Stamp
[Sean Rushton 05/16 05:20 PM]
Among the most tiresome claims by Senate Democrats is they are forced to filibuster judicial nominees because Republican party discipline is so strong that even moderates must vote in lockstep for President Bush’s “worst” nominees. (John Bolton, call your office.) In rebuttal, Sen. Orrin Hatch’s office has done a nice breakdown of Democratic voting patterns during the Clinton years. Unsurprisingly, the party voted with their President.
The Senate confirmed 379 Clinton judges that fall in the “Article III” category, that is, judges who have life tenure.
• 307 to the U.S. District Court
• 65 to the U.S. Court of Appeals
• 2 to the U.S. Supreme Court
• 5 to the U.S. Court of International Trade.
The Senate defeated 1 nominee to the U.S. District Court
334 of the confirmations were by unanimous consent = 33,400 total votes
46 of the confirmations and the one defeat were by roll call vote = 4432 votes (less those not voting)
37,832 total votes cast on confirmation of Clinton Article III judicial nominees
A total of 12 NO votes were cast by Democrats
• Rosemary Barkett (11th Circuit, 1994): Byrd
• H. Lee Sarokin (3rd Circuit, 1994): Bryan (NV), Byrd, Ford (KY), Reid, Sasser (TN), Shelby (AL)
o Byrd and Reid also voted for cloture
• Brian Stewart (District Court, Utah, 1999): Boxer, Feingold, Johnson, Mikulski, Wellstone
12 no votes out of 37,832 judicial votes = .0317 percent
Sen. Roberts Is O.K.
[Sean Rushton 05/16 04:10 PM]
Despite a news story on Saturday, Sen. Pat Roberts’s (R., Kan.) office wants it known that he is NOT going wobbly on the constitutional option. The Kansas City Star has a correction today.
[Sean Rushton 05/16 03:53 PM]
Following Jonathan Adler’s post of Novak’s article, it seems to me a quote towards the column’s end is noteworthy. Contrary to Democrats’ angry denials that they target nominees in part due to their religious views, Novak reports that Nance Keenan, NARAL’s president,
“…is concerned about ‘out of touch theological activists’ becoming judges.”
Religion plays no part? Really?
Hip Hop Is All About Senate Process
[Kathryn Jean Lopez 05/16 02:51 PM]
From a People for the American Way press release:
The Hip Hop Caucus heads to Capitol Hill Tuesday to speak out for the filibuster – joining members of the Congressional Black Caucus and People For the American Way.
The Hip Hop Caucus is organizing youth leaders to ensure that young people understand the stakes for their generation in the battle over the filibuster and judicial nominations. Plans for a large-scale, long-term effort to involve students and amplify their voice will be announced at the press conference.
With the showdown counting down next week, the hip hop generation and civil rights veterans are coming together to find common cause – detailing the importance of the filibuster and the federal judiciary in protecting hard-won social justice victories, and making greater progress in the future.
[Bradford Berenson 05/16 02:45 PM]
All the talk over possible compromise solutions over the weekend ignore this important fact, which Brother McCarthy and Bill Kristol articulated well last week: The principal reason to eliminate the judicial filibuster is that it is the right answer from an institutional perspective, regardless of who controls the Senate or the White House. The stakes are far greater than the fates of individual nominees, although that is important. The stakes are really about the institutional balance of power--or the constitutional separation of powers, if you prefer--between the Congress and the president. If internal Senate rules can be used to prevent majoritarian advice and consent on judicial nominations, the president's clearly delineated power to make selections for the federal courts can effectively be stripped from him. In addition to the hypotheticals posed by Andy in his article, what would prevent the Senate from deciding that a supermajority of 70, 80, or 90 was required for appellate court confirmations, given their importance? Why not unanimity? How about special rules for Supreme Court appointments? It takes just a moment's thought to see that if the judicial filibuster is allowed to survive and thrive, the Senate could effectively put itself in a position to dictate appointments to the president, rather than simply advise and consent to those made by him. This would turn the constitutional scheme on its head and deprive the country of the benefits envisioned by the Framers and explicitly discussed in the Federalist Papers of presidential, rather than congressional, appointments. The only reason that devices like the filibuster and the blue slip have traditionally been tolerated, at least as a theoretical matter, is that they have been used with great restraint and only in truly exceptional cases. (I am not conceding here, of course, that the filibuster has ever actually been used at all against nominees to the bench.) The total abandonment of that restraint is what has really changed over the last few years, and what has set in motion the current confrontation.
Given that no sensible person believes the current party alignment will persist forever, both parties really should be approaching this issue in a high-minded way and trying to divine the right answer from a constitutional perspective. That, I would submit, is an easy task, notwithstanding the well-known tendency of any branch of government to try to aggrandize its own powers at the expense of the others.
What the country needs is not a compromise but a vote on the constitutional propriety of the judicial filibuster. And if the Republicans don't take that vote now, the Democrats surely will when the worm has turned once more.
How We Got Here & Where We're Going To
[Kathryn Jean Lopez 05/16 02:19 PM]
Editorial in today's WSJ:
This is at its core a political fight, and elections ought to mean something. Republicans have gained Senate seats in two consecutive elections in which judicial nominations were among the most important issues, including against the Senate Minority Leader. The one Democrat from a red state who won last year, Ken Salazar of Colorado, did so by promising to oppose judicial filibusters; he now seems to have changed his mind after sipping the Beltway's partisan punch.
And how did it begin
Perhaps the coming showdown will lead to more political bitterness, but we doubt Democrats will be able to follow through on their pledge to shut down the Senate; the public wants other things done. And who knows? If Democrats can't succeed any longer in legislating through the courts, maybe they'll even return to trying to win power the old-fashioned way, through elections.
RE: Stone on Nuke Option
[Mark R. Levin 05/16 10:19 AM]
It's difficult to get past Professor Geoffrey Stone's first paragraph without dismissing his argument. I counted 3 Democrat talking points. And the rest of the piece got worse.
Nominees & Religious Faith
[Jonathan Adler 05/16 09:52 AM]
Over the weekend, the Family Research Council's Tony Perkins had this op-ed in the Washington Post defending his charge that some Democratic Senators have opposed judicial nominees due to the nominees' religious convictions.
NARAL to Go Negative
[Jonathan Adler 05/16 09:46 AM]
Robert Novak reports that NARAL Pro-Choice America is financing background investigations of potential Supreme Court nominees' financial records.
Frist Puts Up His Dukes
[Matthew J. Franck 05/16 09:45 AM]
The Senate majority leader has an op-ed in USA Today, declaring: "It's time to vote."
Stone on Nuke Option
[Jonathan Adler 05/16 09:41 AM]
University of Chicago law prof Geoffrey Stone blogs against the “nuclear option” at the Huffington Post.
More on Compromising
[Kathryn Jean Lopez 05/16 08:45 AM]
Mr. Reid has proposed compromises that would trade acceptance of some judges for withdrawal of others but leave intact the minority's right to stop Supreme Court nominees and others. But aides said Friday that Dr. Frist was insisting only on allowing the Senate to hold a vote on each nominee, which leaves open at least the remote possibility that the two sides could avert the showdown if Democrats agreed to allow votes for all the judges and at least a handful of Republicans in turn indicated that they would help Democrats vote down a few of them.
[Kathryn Jean Lopez 05/16 08:31 AM]
John McCain is peddling and smelling short-of-rule-change compromise still:
Mr. McCain, a critic of the nuclear option, told ABC's "This Week" he thinks that an agreement will be reached without changing the filibuster rule.
"I believe that, as reasonable people -- as we have in the past in the Senate -- we should sit down together and work this out," he said.