November 6, 2004
Arlen Specter stuck his foot squarely in his mouth just hours after winning election in Pennsylvania, suggesting in his comments to the press that under his presumed leadership of the Senate Judiciary Committee, George Bush should take care not to nominate anyone except middle-of-the-road candidates. The uproar from the conservative base has threatened to derail Specter's ascension to the chair and has caused the GOP's Senate contingent to wonder at the best option for response: Republican lawmakers and top Senate aides, speaking privately for the most part, said the uproar from the right was becoming an impediment for Mr. Specter, a Pennsylvania lawmaker who has coveted the chairmanship. They said while it was likely he would still get the post, it was no longer a certainty. "He is not out of the woods,'' said one Senate aide who is closely monitoring developments on the Judiciary Committee, echoing a sentiment expressed...
November 10, 2004
George Bush made the first Cabinet-level selection of his second term, nominating Alberto Gonzalez, Jr for Attorney General. Gonzalez will replace John Ashcroft, who resigned on Election Day. Unfortunately, given Gonzalez' history, I suspect that Gonzalez will also replace Ashcroft as a lightning rod: In tapping Gonzales for the post, Bush picked a fellow Texan who has stirred controversy himself for his role in memos condoning the possible torture of terrorist suspects and arguing that prisoners captured in Afghanistan are not protected by the Geneva Conventions. But the soft-spoken lawyer also has been described as a relative moderate whose conservative credentials are sometimes viewed with suspicion by Bush's more rightist supporters. Gonzalez didn't write the first memo mentioned, nor did he endorse it, but the Post reported that the Justice Department consulted heavily with the White House before drafting it. Both cases give ammunition to partisans in Congress for attempting...
November 14, 2004
Senate Majority Leader Bill Frist declined to actively support Arlen Specter, telling Fox News Sunday that Specter had to agree to back all of George Bush's judiciary nominees if he expected to chair the Senate Judiciary Committee: A Republican senator who has questioned whether an abortion opponent could win approval to the U.S. Supreme Court must agree to back President Bush's nominees if he is to head the committee acting on those nominations, the Senate's Republican leader said. Republican Sen. Arlen Specter of Pennsylvania, in line to become chairman of the Senate Judiciary Committee, has yet to make a persuasive case that he should head the panel, Senate Majority Leader Bill Frist said on "Fox News Sunday." This issue had quieted down somewhat over the past few days, and it looked like Specter might settle into the chairmanship chastened but safely. This looks like a moderate escalation in the battle...
Both Hugh Hewitt and myself have taken a lot of heat for our position on the Arlen Specter kerfuffle. Our readers keep reminding us of Specter's track record over six terms in the Senate as a center-left gadfly in GOP ranks. I don't want to speak for Hugh -- he can speak well enough on his own -- but I am well aware of Specter's track record, and it's not as germane as people think. In the first place, Specter's record on judicial nominations is nowhere near as bad as people like to make out. He took part in the original Borking, and Robert Bork has understandably made Specter's ascension to the chair of the Judiciary Committee a personal crusade. However, during the past term Specter supported every one of Bush's nominees -- every one. And if he blew it with Bork, he had the credibility to attack Anita Hill...
November 20, 2004
John Tabin wrote in today's American Spectator that the groundswell of outrage surrounding Arlen Specter's comments and pending chairmanship of the Senate Judiciary Committee has had a salutary effect on the GOP. Tabin argues convincingly that the debate has caused Specter to retreat substantially on his independence of action: If Specter makes trouble for conservative nominees during the next two years, his betrayal, he must now realize, will have consequences. His fellow Senators were nearly willing to throw away precedents to deny him his chairmanship because of conservative mistrust of the kind of things Specter might do as Judiciary Chairman; Specter would be a fool to give them an immediately recent record to point to. As liberal Sam Rosenfeld wistfully put it on the American Prospect's blog earlier this week, "Arlen Specter the independent and outspoken senior senator from Pennsylvania has already lost out on the chairmanship, and at best...
November 26, 2004
The AP reports that the Supreme Court will hear arguments Monday of an appeal of the Ninth Circuit's ruling that federal anti-marijuana laws do not apply when marijuana is used for medicinal purposes and does not cross state lines. The case promises to shed light on the current court's support of federalism and states' rights: On Monday, the Supreme Court will hear arguments in a case that will determine whether Raich and similar patients in California and 10 other states can continue to use marijuana for medical purposes. At issue is whether states have the right to adopt laws allowing the use of drugs the federal government has banned or whether federal drug agents can arrest individuals for abiding by those medical marijuana laws. California passed the nation's first so-called medical marijuana law in 1996, allowing patients to smoke and grow marijuana with a doctor's recommendation. The Bush administration maintains...
November 30, 2004
The Supreme Court heard arguments yesterday in reviewing the constitutionality of California's medicinal-marijuana laws, and at first blush, it looks as though the justices on all sides view the state's-rights argument with deep suspicion: The effort by advocates of the medical use of marijuana to link their cause to the Supreme Court's federalism revolution appeared headed for failure at the court on Monday. During a lively argument, the justices expressed little inclination to view drug policy as a states' rights issue by which California and other states that have adopted "compassionate use" marijuana measures could displace federal regulation of homegrown marijuana distributed to patients without charge and without crossing state lines. ... Mr. Barnett said that relatively few people would meet the medical criteria for legal marijuana use, and that any impact on the overall market for marijuana would therefore be "trivial." The administration, by contrast, has predicted that 100,000...
The Third Circuit Court of Appeal issued a non-sequitur in its decision yesterday striking down the Solomon Amendment, which barred federal funds from universities and colleges that ban military recruiters from their campuses. In its decision, the court incoherently equated colleges with the Boy Scouts: A three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, found that educational institutions have a First Amendment right to keep military recruiters off their campuses to protest the Defense Department policy of excluding gays from military service. The 2-to-1 decision relied in large part on a decision in 2000 by the United States Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar gays, the appeals court said, law schools may prohibit groups that they consider discriminatory. The 1995 law at issue in the decision, the...
December 13, 2004
The Army Court of Appeals has thrown out a heterosexual sodomy conviction based in part on the Supreme Court decision in Lawrence v. Texas, throwing the ban on gays serving in the military into doubt. The New York Times reports that the impact on military policy will likely be indirect but cumulative: The decision, issued late last month by the United States Army Court of Criminal Appeals, was based in part on the Supreme Court opinion in Lawrence v. Texas, which declared last year that the Texas sodomy statute violated the right to privacy. The case before the Army court involved a male Army specialist who admitted that he had engaged in consensual oral sex in a barracks room with a female civilian whom he had met at a nightclub. But those seeking to abolish the military's "don't ask, don't tell" policy, and some legal experts, say the ruling is...
December 20, 2004
Robert Novak lined up behind Senate majority leader Bill Frist and the so-called nuclear option of a rule change to eliminate filibusters on judicial nominations. Novak points out that Democratic Senator Robert Byrd created four precedents for such rule changes when he ran the Senate, and that nothing short of a rule change will stop the planned filibusters from continuing: Ever since Frist publicly embraced the nuclear option, he has been accused of abusing the Senate's cherished tradition of extended debate. In truth, during six years as majority leader, Democrat Robert C. Byrd four times detonated the nuclear option to rewrite Senate rules. Thus, Frist would set no precedent, would not contradict past Republican behavior and would not strip the GOP of protection as a future Senate minority. The question is whether Republican senators will flinch from the only maneuver open to confirm Bush's judges. The unprecedented Democratic plan to...
The GOP juggled commitee assignments today, shifting two strong anti-abortion advocates to the Senate Judiciary Commitee to give George Bush ample political support for the expected conservative nominees to federal courts this session of Congress: Sen. Sam Brownback (R-Kan.) and Sen.-elect Tom Coburn (R-Okla.) will join the panel's eight returning Republicans next month, assuming the Republican Conference follows tradition and approves the leadership's committee assignments for all 55 GOP senators. The breakdown of Judiciary will be 10 Republicans and eight Democrats. ... Brownback and Coburn replace Sens. Larry E. Craig (Idaho) and Saxby Chambliss (Ga.), who will shift to other committees. Craig and Chambliss are solid conservatives but are not as focused on abortion as their replacements are. Democrats, who lost four net Senate seats last month, will not replace the retiring Sen. John Edwards (N.C.) on the committee. Their eight remaining members will stay on the panel. The Senate...
December 23, 2004
After seeing the Senate minority leader lose his re-election bid in part due to Tom Daschle's efforts at obstructing George Bush's judicial nominations, the White House has anted up a second time, promising to nominate the same candidates in the new session of Congress: President Bush said on Thursday he would renominate a group of controversial judicial nominees who were blocked by Senate Democrats, signaling the start of a second-term battle over the make-up of the nation's top courts. Emboldened by his re-election victory and gains by Republicans in the Senate, Bush plans to renominate a total of 20 nominees to the nation's court of appeals and district courts, the White House said. Ten of those nominees drew filibusters or threats to obstruct their progress, an unprecedented action that may have allowed the GOP to convince voters that Democrats overreached in Bush's first term. Harry Reid, Daschle's replacement as minority...
December 31, 2004
A California appellate court has ordered the Los Angeles City Council to perform an apparently extraordinary duty -- to pay attention to its own meetings: During public hearings, members of the City Council talk on cell phones, chat among themselves, read mail or wander around the room. A state appeals court says they should be doing something else: paying attention. Ruling on a suit brought by the owners of a strip club, the 2nd District Court of Appeal said the 15-member council acts as a quasi-judicial body when it holds hearings and has a legal duty to listen to testimony — or risk violating citizens' due process. In a hearing involving a strip club owner who was seeking to extend his hours, both sides "had the right to be equally heard, not equally ignored," the court wrote in a decision Thursday, ordering a new hearing. In the case which sparked...
January 16, 2005
Senator Harry Reid told ABC's This Week that any attempt to push through a rule change would cause the GOP heartache down the road: The Senate's Democratic leader said Sunday that Republicans "would rue the day" if they try to make it harder for Democrats to stall judicial nominees who could not get a vote last year. ... Reid compared Bush's talk of crisis in judicial nominations to the president's rhetoric on Social Security. "He's trying to create crisis with judges and with Social Security. They don't exist," Reid told ABC's "This Week." "We have approved for the president of the United States 204 judges the last four years," he said. "We've turned down 10. Even in modern math, that's a pretty good deal." He said the 10 who did not get a vote in 2004 "were rightfully turned down." The White House announced last month that Bush would renominate...
January 21, 2005
Arlen Specter may find himself back on the hotseat again, according to The American Spectator (hat tip: CQ reader Caleb). Specter gained the chairmanship of the Senate Judiciary Committee only after a brief but intense controversy stirred up by Specter's warning on judicial nominees to President Bush. Now his own hiring practices have come under attack after selecting a senior aide that has strong ties to the same groups that attacked Bush's nominees in the past: Senate Judiciary Committee chairman Arlen Specter went back on his word to Republican caucus members and conservative groups alike when he recently hired Hannibal G. Williams II Kemerer, who until recently was the NAACP's assistant general counsel. Specter hired Kemerer against the wishes of his senior Judiciary Committee staff. "We warned him this was going to cause trouble, but Specter said it was his committee, we are his staff, and he's going to do...
January 22, 2005
Today is the 32nd anniversary of the seminal Supreme Court decision Roe v Wade that raised abortion to the status of a "right" and paved the way for the destruction of 43 million fetuses. Thirty years later, this piece of judicial activism appears to hang in the balance of a re-elected conservative president with a Senate majority, but in truth abortion faces less danger than presumed: Coming just two days after George W. Bush's inauguration, Saturday's anniversary of the 1973 Supreme Court decision legalizing abortion is dominated by the hopes of one side — and fears of the other — that the president will try to overturn Roe v. Wade through appointments to fill expected high court vacancies. ... Anti-abortion lawmakers in Congress and several states, meanwhile, are introducing the latest in a wave of measures aimed at making it more daunting to obtain an abortion. The bills would require...
February 1, 2005
Fresh off of their reaction to the historic Iraqi elections as a defeat which required an immediate retreat, the leadership of the Democratic Party further cemented its separation from political reality by declaring today that they failed to obstruct enough judicial nominees in the last session of Congress: Senate Democrats are "not going to cut and run" from a battle over President Bush's judicial nominations, the party's leader vowed Tuesday, adding that some Democrats regret not having blocked even more appointments. "If they bring back the same judges we're going to do the same thing," Sen. Harry Reid, D-Nev., said of the administration. Democrats blocked votes on 10 of Bush's first-term appointments to the courts and confirmed more than 200. Republicans have threatened to change long-standing Senate rules to strip Democrats of their ability to block votes, but Reid sounded a note of defiance. "Well, let them do it," he...
February 24, 2005
Ruth Marcus in today's Washington Post notes that Senator Arlen Specter has hardly mellowed after the compromise that left him in his Judiciary Committee chairmanship or with the recent diagnosis of Hodgkin's Disease. In a visit with the Post's editorial board yesterday, Specter appears to have backtracked significantly on his agreement with the GOP on President Bush's judicial nominations, in spirit if not in fact: If you thought that his brush with losing the committee chairmanship had chastened the legendarily contrarian Specter, if you thought his recent diagnosis of Hodgkin's disease might have tempered his approach -- well, that wasn't the Specter on display in a visit with The Post editorial board yesterday. Instead, the discussion featured Specter Unbound: the Specter who voted against Robert H. Bork rather than the one who rallied to the defense of Clarence Thomas. Specter had some cautionary words for Democrats as well -- chiding...
March 2, 2005
The Los Angeles Times reports today that the new Democratic Senator from Colorado, Ken Salazar, didn't take long to betray one of his "centrist" positions from his election campaign. After telling conservative Coloradans that he supported Bush's judicial nominees during his election, he now has sent a letter to Bush telling him to withdraw said nominees, including one Salazar pointedly said he would support: Hopes that the Senate could rapidly confirm some troubled judicial nominations ran into a roadblock Tuesday when one of the moderate Democrats expected to support a vote by the full Senate on the nominees instead called on President Bush to withdraw the 10 candidates he resubmitted last month. The move by Sen. Ken Salazar (D-Colo.), a newcomer to the Senate, surprised both sides in the rancorous debate and came just hours after the Senate Judiciary Committee held a second testy hearing for one of those nominees...
Two Jewish groups have denounced Senator Robert Byrd for his equating Hitler and the GOP and have demanded an apology and a retraction, the AP reports today, in a development that may signal a crack in the media disinterest that has marked Byrd's antics up to now. The first group to criticize Byrd was the the Republican Jewish Coalition, a group that Democrats could dismiss as partisan. However, the second group, the Anti-Defamation League, will not so easily be disregarded by Byrd's colleagues: Abraham H. Foxman, national director of the Anti-Defamation League, said Wednesday that Byrd's remarks showed "a profound lack of understanding as to who Hitler was" and that the senator should apologize to the American people. "It is hideous, outrageous and offensive for Senator Byrd to suggest that the Republican Party's tactics could in any way resemble those of Adolf Hitler and the Nazi Party," Foxman said. The...
CNN jumped into the fray over Senator Robert Byrd's Nazi reference in its Inside Politics look at the blogs. Hugh Hewitt played the segment on his show tonight as Judy Woodruff, Jacki Schechner, and Abbi Tatton reviewed the Byrd scandal through CQ and Radioblogger: WOODRUFF: ... Time now to check what's going on in the blogosphere. And with me once again today to talk about what they are talking about, CNN political producer Abbi Tatton and Jacki Schechner. She's our blog reporter. So, Jacki, I bet it's not baseball. JACKI SCHECHNER, CNN BLOG REPORTER: No, it's more like Byrd. We've already heard what Senator Robert Byrd said on the floor of the Senate, comparing Republican tactics to Adolph Hitler's rise to power. Conservative blogs all over it. Over at Captain's Quarters, he's got plenty to say, including this comment: "Byrd, with his attempted filibuster of the Civil Rights Act of...
March 3, 2005
Senator Robert Byrd's office issued a defense of his remarks comparing Republican attempts to bar filibusters on judicial nominations with Naziism in the Senate earlier this week. Unfortunately, it appears that Byrd's staff suffers from the same incoherence that afflicts their boss most of the time: Sen. Robert Byrd's description of Adolf Hitler's rise to power was meant as a warning to heed the past and not as a comparison to Republicans, a spokesman for the West Virginia Democrat says. ... "Terrible chapters of history ought never be repeated," said Tom Gavin, spokesman for Byrd. "All one needs to do is to look at history to see how dangerous it is to curb the rights of the minority." Put aside all of the historical inaccuracies that one has to swallow for that argument to work, such as the fact that the Enabling Law basically abdicated the Reichstag and made Hitler...
March 4, 2005
Senator John Cornyn (R-TX) has written a detailed rebuttal to Robert Byrd's argument on the Senate floor earlier this week, when (apart from the abhorrent Nazi analogies) the former Klan recruiter took on the mantle of the protector of minority rights. Cornyn demolishes Byrd's arguments that the GOP's attempt to change precedent on filibusters has any Hitlerian overtones by pointing out the specifics of when Byrd himself successfully did the same thing: Recall that it was Sen. Byrd who led the charge to establish new Senate precedents in 1977, 1979, 1980, and 1987 - including a number of precedents that were designed specifically to stop filibusters and other delay tactics that were previously authorized under Senate rules or prior precedents ... In 1980, Senator Byrd led the establishment of a new precedent to require an immediate vote, without debate, on any motion to go into executive session to consider a...
March 15, 2005
Hugh Hewitt links to a Boston Globe article on the debate over filibustering judicial nominations which reports that Senator Mitch McConnell may not have much enthusiasm for a rule change which would eliminate them. Called interchangeably the "nuclear" or "Constitutional" option, the rule change could pass on a straight majority vote and end the recent practice of Democrats to block floor votes on judicial nominations. I understand that the majority whip may not want to create more trouble than already exists in the Senate, but the antics of the Democrats in this session already demonstrate their intransigence. First Senator Harry Reid allowed Barbara Boxer to hijack the Electoral College vote to grandstand about non-existent voter fraud in Ohio, which the Democrats lost by over a hundred thousand votes in 2004 while winning Wisconsin with less than a tenth of that and real voter fraud in their powerbase of Milwaukee. Then...
Senator Harry Reid released a statement on the Capitol steps this afternoon that completely destroys any pretense that the Senate Minority Leader ever intended to work towards any reasonable accommodation with the GOP majority. Not only did Reid overreact to the ongoing debate over the proposed rule change for judicial nominations by threatening to shut the entire Senate down while the nation is at war and threatened by attack, but the statement itself is so inaccurate and historically bankrupt that it removes whatever confidence remained in his ability to lead in a rational manner. Reid starts off by completely misinterpreting the intent of the Constitution's framers: Our Constitution provides for checks and balances so that no one person in power, so that no one political party can hold total control over the course of our nation. Absolutely untrue, at least in terms of political parties. First, the founders didn't give...
March 16, 2005
Just when we thought Harry Reid's incoherent analysis of the Constitution had lowered the bar as far as possible on judicial nominations and filibusters, along comes Old Reliable -- Senator Robert Byrd. Byrd, who himself authored four changes to the filibuster rule as Senate Majority Leader to favor the majority, told The Hill that the proposed rule change equated to an assassination. I'm not kidding: Today at noon, Sens. Charles Schumer (D-N.Y.), Robert Byrd (D-W.Va.), Dick Durbin (D-Ill.) and Edward Kennedy (D-Mass.) will address MoveOn PAC members about the nuclear option. Byrd (D-W.Va.), the chamber’s longest-serving member, used the Ides of March anniversary to invoke Julius Caesar’s murder and told The Hill that “freedom of speech in the Senate is about to be assassinated.” “Let’s don’t let it happen,” he added. “Fight.” Byrd hasn't posted this speech to his website as yet, and if he's equating Bill Frist with Brutus,...
March 17, 2005
Duane at Radioblogger has the audio clip and transcript from Barbara Boxer's appearance at the MoveOn rally in support of Senate Democrats and their unprecedented filibusters of judicial nominees. After such luminaries as Ted Kennedy and Robert Byrd railed on interminably about the evils of majority rule (in America!) and the need to preserve the Constitution, they committed the fatal blunder of allowing Boxer to speak: Why would we give lifetime appointments to people who earn up to $200,000 a year, with absolutely a great retirement system, and all the things all Americans wish for, with absolutely no check and balance except that one confirmation vote. So we're saying we think you ought to get nine votes over the 51 required. That isn't too much to ask for such a super important position. There ought to be a super vote. Don't you think so? It's the only check and balance...
March 30, 2005
In denying the Schindlers a final en banc appeal, the opinion for the denial includes a shot at Congress and the President by Justice Stanley Birch: Birch went on to scold President Bush and Congress for their attempts to intervene in the judicial process, by saying: "In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people our Constitution [sic]." Talk about judicial arrogance! Not only did the Eleventh Circuit openly disregard the law written by Congress, this justice arrogantly tells the other equal branches that the only branch guaranteeing a free people is the one not accountable to the will of the electorate. Bear in mind that none of the courts that reviewed this case after the...
Radioblogger listened to the press conference held by People for the American Way and its president, Ralph Neas, as they launched their new ad campaign against a proposed rule change eliminating filibusters on judicial confirmations in the Senate. [Why? Well, someone had to do it, I guess -- CE] Apparently, Neas bubbled over with joy at finding a "common sense Republican" to front PFAW's ad blitz, hoping it will convince other GOP voters to demand their Senators vote against the ban. So who did Neas find? Brent Scowcroft? Henry Kissinger? Jim Jeffords? The ghost of Nelson Rockefeller? No! Neas found ... Ted Nonini. You know ... that Ted Nonini. Still stumped? Welcome to the club. Ted Nonini, as it turns out, works as a Los Angeles firefighter -- obviously a brave man -- but as a politician, he doesn't have much of a track record. A Google search on Fireman...
April 14, 2005
Senator John McCain appeared on Hardball within the last hour to inform Chris Matthews and the MS-NBC audience that he would refuse to vote for the so-called "nuclear option", the rule change that would disallow filibusters on executive nominations for the federal bench. He stated that he would vote with the Democrats to uphold the notion that a legislative minority has the right to dictate to the executive branch who their nominees should be: MATTHEWS: But bottom line, would you vote for what’s called the “nuclear option,” to get rid of the filibuster rule on judgeships? MCCAIN: No I will not. MATTHEWS: You will stick with the party? MCCAIN: No, I will vote against the nuclear option. MATTHEWS: You will vote— MCCAIN: Against the nuclear option. MATTHEWS: Oh, you will? MCCAIN: Yes. I initially heard this exchange on the Hugh Hewitt show, and I almost choked when Hugh referred to...
Contrary to its own headline, Senate Majority Leader Bill Frist plans on dawdling for weeks longer before finally addressing the issue of Democratic obstructionism on nominations for the federal bench, the Washington Post reports in its Friday edition: Senate Majority Leader Bill Frist is all but certain to press for a rule change that would ban filibusters of judicial nominations in the next few weeks, despite misgivings by some of his fellow Republicans and a possible Democratic backlash that could paralyze the chamber, close associates said yesterday. The strategy carries significant risks for the Tennessee Republican, who is weighing a 2008 presidential bid. It could embroil the Senate in a bitter stalemate that would complicate passage of President Bush's agenda and raise questions about Frist's leadership capabilities. Should he fail to make the move or to get the necessary votes, however, Frist risks the ire of key conservative groups that...
April 15, 2005
The Hill reports today that the GOP has not only lost its momentum on judicial nominations, but that it acknowledges being out-generalled by the lightly-regarded Harry Reid on filibusters. In a stinging indictment of Republican leadership on Capitol Hill, GOP staffers and politicians now want to create a "war room" to recapture the message they frittered away in the session's opening weeks: Senate Republican leaders were due to meet last night amid rising concern that they are being beaten on the “nuclear option” by Sen. Harry Reid’s (D-Nev.) public-relations war room. The GOP’s talks follow a meeting last week in which aides warned Bob Stevenson, Senate Majority Leader Bill Frist’s (R-Tenn.) communications director, that something needs to be done to win back lost ground, a participant said. “I think there’s a realization that this particular [Democratic] effort has to be countered and they’re in full-scale attack mode,” a GOP aide...
April 16, 2005
Since I wrote the post "Not. One. Dime." two days ago in response to the news that the Senate GOP leadership doesn't plan on addressing filibusters on judicial nominations for weeks (Frist) or even months (Santorum), a predictable debate has arisen among the right about the effect of a money shortage on the NRSC and Republican efforts to hold the majority in 2006. Bloggers with whom I normally agree have scolded me. My VRWC -- an excellent blogger -- takes me to task for not remembering 1992 and Ross Perot in my comments section. My friend Matt Margolis of GOP Bloggers does much the same on his site. I'm not moved. Can anyone remember why George H. W. Bush lost in 1992, why his base lost their enthusiasm for his candidacy? Bush had campaigned in 1988 as a disciple of Ronald Reagan, promising to hold the line on taxes and...
April 17, 2005
Jeffrey Rosen writes a long article in today's New York Times magazine, which starts off by lambasting Justice Clarence Thomas and then paints a picture of Republican efforts over the years to create Supreme Courts that will give unfettered reign to the rule of corporations. This lengthy and tedious essay goes on interminably about the Constitution in Exile movement and a supposed network of jurists standing by to take us back to its "glory days". David Bernstein at the Volokh Conspiracy notes several issues with Rosen's scholarship, however: Jeff Rosen is a learned guy who has written some rather perceptive things about the so-called Lochner era in his law review scholarhip. See 66 Geo. Wash. L. Rev. 1241. Unfortunately, in his journalistic piece in the Times magazine, he simply regurgitates Progressive myths when recounting constitutional history. You can read all of Bernstein's rebuttals on one page here. This piece didn't...
One of the results of the posts I've written about the lack of effort on the part of the Senate GOP in resolving the obstructionism of the Democrats on judicial nominations is a tremendous debate on the right about strategy and consequences of action and non-action, by both politicians and voters alike. The debate has resulted in well-written arguments on all sides, and even those criticizing me make excellent points well worth considering. For the small amount of time I've had in front of the computer tonight, I've spent it reading the rebuttals as well as the agreements, which has given me food for thought. One of the questions many have asked on their own blogs as well as in their comments is why I feel that the time for patience has run out. Some argue that waiting a few more weeks or even months -- or even until next...
April 18, 2005
In the ongoing debate about the lengthy GOP hesitation in forcing a vote on the filibuster rule change, many people have written about politics being the art of the possible, and the unreasonableness of expectation that legislation can get passed in the first 90 days of a new session. Mark Noonan at GOP Bloggers probably wrote it best: Now, what do we conservatives (many of whom are highly upset right now) want? We want taxes reduced massively; we want the War on Terrorism won; we want Social Security privatised; we want abortion at least highly restricted if not banned outright; we want prayer back in public schools; we want tort reform; we want regulatory reform; we want increased nuclear power and oil drilling; we want our borders secured; we want illegal immigrants deported; we want government spending to be heavily cut; we want conservative judges to be approved yesterday...pretty simple,...
April 20, 2005
Two days ago, Hugh Hewitt mentioned on the air that his sources have it that Bill Frist will schedule a vote for one of Bush's embargoed judicial nominees, which will allow Frist to push for the rule change on filibusters. So far, however, I have yet to see this confirmed in any news report. In fact, Frist has remained silent so far on any upcoming move; the only statement he made was yesterday's reiteration of his general opposition to filibusters: "It is unfortunate that Democrats continue to block up-or-down votes on President Bush's judicial nominees, thereby keeping the Senate from doing its constitutional duty," Majority Leader Bill Frist said Tuesday in a written statement. Now we have Frist losing another nomination battle with the Democrats when the Republicans on the Foreign Relations Committee failed to do any timely research on the one witness to come forward to claim that John...
April 21, 2005
CQ reader Dafydd ab Hugh notes that the AP believes that Senator Bill Frist might finally bring some of the embargoed judicial nominations to the Senate floor next week, if he can get them out of committee: The Republican-controlled Senate is moving closer to a showdown over whether Democrats can continue filibustering President Bush's judicial nominees now that two of the White House's favored court appointees are scheduled for final committee approval. Texas judge Priscilla Owen and California judge Janice Rogers Brown, who were blocked by Democrats during Bush's first term, were up for approval by the Senate Judiciary Committee on Thursday. Owen, nominated by Bush for a seat on the 5th U.S. Circuit Court of Appeals in New Orleans, and Brown, seeking a lifetime slot on the U.S. Circuit Court of Appeals in the District of Columbia, secured committee approval during Bush's first term. However, they were blocked from...
The Senate Republicans have managed to do the improbable, if Alexander Bolton's report in The Hill today is to be believed. They have taken a significant mandate from the November 2004 election to break the unprecedented filibusters on judicial nominations and turned it into a liability -- or so Senator Rick Santorum supposedly believes: Sen. Rick Santorum (R-Pa.), a leading advocate of the “nuclear option” to end the Democrats’ filibuster of judicial nominees, is privately arguing for a delay in the face of adverse internal party polls. Details of the polling numbers remain under wraps, but Santorum and other Senate sources concede that, while a majority of Americans oppose the filibuster, the figures show that most also accept the Democratic message that Republicans are trying to destroy the tradition of debate in the Senate. The Republicans are keeping the “nuclear” poll numbers secret, whereas they have often in the past...
April 22, 2005
The GOP finally addressed the issue of judicial nominations yesterday by getting two of President Bush's nominees out of commitee and onto the Senate schedule for full confirmation. Democrats, who filibustered both Priscilla Owen and Janice Rogers Brown in the last session of Congress, plan on doing so again -- and will force the Republicans to change the filibuster rule after more than three months of dawdling: Moving the Senate closer to a historic confrontation, the Republican-controlled Judiciary Committee yesterday endorsed two of President Bush's most controversial nominees to federal appellate court, and Democrats vowed once again to use the filibuster to block their confirmation. The committee, voting 10 to 8 along party lines, endorsed Janice Rogers Brown of California for a seat on the U.S. Court of Appeals for the District of Columbia, and Priscilla Richman Owen of Texas for a seat on the U.S. Court of Appeals for...
April 24, 2005
On a day when Senator Mitch McConnell announced that the GOP has the votes to force a rule change on filibustering judicial nominations, the Democrats have suddenly discovered the notion of compromise. Joe Biden announced today, shortly after McConnell's announcement, that the Democrats will float a proposal to allow all but two of the seven nominees receive an up-or-down vote in the Senate: U.S. Senate Republicans have the votes to ban any more Democratic procedural roadblocks against President Bush's judicial nominees, a top Republican said on Sunday. A spokesman for Senate Democratic leader Harry Reid of Nevada promptly questioned the claim, while another Democrat, Sen. Joseph Biden of Delaware, floated a possible compromise to avert a fight that could bring the Senate to a near halt. ... Biden, appearing on ABC's "This Week," said, "I think we should compromise and say to them that we're willing to -- of the...
April 25, 2005
Senator Bill Frist appeared on the edge of victory this morning in forcing through the Bush nominees for federal appellate courts after a renewed push by GOP conservatives to get tough with the recalcitrant Democrats who have filibustered them. However, a late report from USA Today hints that Frist may have buckled under the pressure, considering an unprecedented arrangement that would allow two Democratic Senators to demand bench appointments for their cronies as a ransom for the up-or-down votes that Bush's nominees should already have received: In private talks with Majority Leader Bill Frist, the Senate's top Democrat has indicated a willingness to allow confirmation of at least two of President Bush's seven controversial appeals court nominees, but only as part of a broader compromise requiring Republicans to abandon threats to ban judicial filibusters, officials said Monday. At the same time he offers to clear two nominees to the 6th...
April 26, 2005
Janice Rogers Brown refuses to conduct herself under a cloister while milquetoast Republicans and hostile Democrats hold her career hostage for over two years and counting. The Los Angeles Times reports that Brown told an audience on Sunday that a cultural battle has formed in which people of faith face punishment from secularists for their beliefs: Just days after a bitterly divided Senate committee voted along party lines to approve her nomination as a federal appellate court judge, California Supreme Court Justice Janice Rogers Brown told an audience Sunday that people of faith were embroiled in a "war" against secular humanists who threatened to divorce America from its religious roots, according to a newspaper account of the speech. ... "These are perilous times for people of faith," she said, "not in the sense that we are going to lose our lives, but in the sense that it will cost you...
Senate Majority Leader Bill Frist called a rare, impromptu press conference on the floor of the Senate to tell the media that he will not accept any compromise which does not include up-or-down votes on all of Bush's judicial nominations. Presumably this closes the door on the extended negotiations that had taken place between Frist and Minority Leader Harry Reid, as the Democrats have already insisted that they should retain the right to block so-called "extremists" from the bench: Reacting to a Democratic offer in the fight over filibusters, Republican leader Bill Frist said Tuesday he isn't interested in any deal that fails to ensure that the Senate votes on confirmation for all of President Bush's judicial nominees. Senate Democratic leader Harry Reid had been quietly talking with Frist about confirming at least two of Bush's blocked nominees from Michigan in exchange for withdrawing a third nominee. This would have...
April 27, 2005
The Los Angeles Times reported yesterday on a speech given by Justice Janice Rogers Brown, a courageous speech given her current limbo between openly derisive Democrats and squeamish Republicans in the Senate, which I linked here. However, one of the attendees blogged about Brown's breakfast speech and claims that not only did the Times take Brown out of context on key points, but that their "reporting" only consisted of reprinting and rewriting the original article in the Stamford Advocate. Benedict Blog tells a more interesting tale of the Red Mass speech by Brown, one that convinced him that not only would Brown make a terrific appellate justice, but in a fair world would be headed for the Supreme Court: Why does the Times make no mention of the breadth and depth of Justice Brown's intellect? Profound. Thoughtful. Erudite. Those, or words like them, should have been used to describe Justice...
April 28, 2005
Senator Bill Frist reiterated today that the Republicans would accept no compromise that allowed Democrats to filibuster judicial nominees that have received approval from the Judiciary Committee. He told Minority Leader Harry Reid that he would offer up to 100 hours of debate, but in the end all nominees clearing the committee must receive an up-or-down vote: With a showdown looming, Senate Majority Leader Bill Frist refused to budge Thursday on his demand that Democrats forgo filibusters against all of President Bush's past or present nominees to federal appellate court benches or the Supreme Court. "Throughout this debate, we have held firm to a simple principle, judicial nominees deserve up-or-down votes," Frist said. But Frist offered to retain the right to filibuster district court nominees in exchange for 100 hours of debate and guaranteed confirmation votes on the nation's highest judgeships. The Senate's top Republican also said that under his...
April 29, 2005
One of the most significant travesties of the judicial confirmation war that the Democrats launched after losing the Senate majority in 2003 has been the damage done to the reputations of those jurists nominated to the federal appellate bench by George Bush. Ten of the thirty-four nominations sent to the Senate by Bush have not only been blocked by the minority through the unprecedented use of the filibuster, but they have been vilified by Democrats as "Neanderthals" (Ted Kennedy), "extremists", "theocrats", and worse. Three of these nominees have declined to pursue their nominations, effectively curtailing their careers in public service, in order to restore their reputations and spare their families any further degradation at the hands of rabid Democrats insistent on pursuing strategies of personal destruction. Seven have valiantly decided to fight for their rightful place on the appellate bench. One of the latter is Justice Janice Rogers Brown, who...
May 1, 2005
Jack Kelly of the Pittsburgh Post-Gazette makes the argument that the GOP has lost political momentum through the lackadaisical effort of its legislative caucuses, especially in the Senate, since the elections last year. Kelly writes that a lack of effort and basic competence in the Republican leadership has allowed the Democrats to bounce back from their stunning defeats, assisted by an ever-willing Exempt Media: Democrats may have been waxed at the polls last November, but they're running rings around Republicans in the public relations battles so far this year. Consider: * Polls indicate a majority of Americans agree with President Bush that reform of Social Security is needed, and about half of Americans favor his plan to permit workers to divert a portion of their Social Security taxes into personal retirement accounts. But in the most recent poll (taken for CBS April 13-16), only 25 percent of respondents indicated they...
Earlier today, alert CQ readers noted an exchange on Fox News Sunday between Juan Williams and Bill Kristol on the nomination of Janice Rogers Brown. A complete transcript is not yet available, but this partial Google Video transcript will demonstrate the ludicrous lengths to which the Left will go towards smearing respected jurists with false charges in order to convince people that they are "extremists": JW: The second point to be made here is, Bill, If they had a real debate about people like Priscilla Owen and Janice Rogers brown, the American people would say these folks are too extreme. Even republicans have said that in the case of Priscilla Owen and her rulings in Texas -- BK: Which Republican was that? JW: In fact, a majority of -- BK: Wrong, wrong, dead wrong. His testimony, his recent testimony on the hill -- JW: He said he didn't mean what...
May 6, 2005
Has Harry Reid gotten nervous about the upcoming confrontation on judicial confirmations? The AP's David Espo reports that Reid has privately told Republican Senators that he does not plan on endorsing filibusters on Supreme Court nominees except under "extreme" circumstances: Senate Democratic leader Harry Reid has privately told individual Republicans he doesn't intend to block votes on any Supreme Court nominees except in extreme cases, according to officials familiar with the conversations. At the same time, Reid has declined in private — as well as in public — to offer the type of firm no-filibuster assurance that might help him prevail over Majority Leader Bill Frist, R-Tenn. in a struggle over President Bush's conservative court appointments and rules covering future confirmations. ... "I can never say there will never be a filibuster because I cannot say that," he said recently on the Senate floor. "But I don't think this Senate...
May 8, 2005
Yesterday, Charles Schumer called on President Bush to dial down the rhetoric of the people opposing the Democrats' use of the filibuster, claiming that "harsh language" undermines the political process: In his radio appeal, Schumer sought to draw Bush more directly into the fray by urging the president to denounce some conservatives who have used harsh language to criticize the Democrats. "I am making a heartfelt plea to you, Mr. President. When you came to Washington, you said you wanted to change the climate in D.C.," Schumer said. "Those stating these abhorrent views count themselves as your political allies. One word from you will bring a halt to these un-American statements. That would be a way to strengthen democracy here at home." The senator referred generally to some activists comparing judges to the Ku Klux Klan and terrorists. The same AP report by Devlin Barrett notes that the Democrats started...
Perhaps Harry Reid should get out more often before pronouncing personal judgments on people he doesn't know. Two days after calling Janice Rogers Brown a "bad person" and accusing her of a hidden agenda to return the US to Civil War status, the editor of the Sacramento Bee writes a long and passionate defense of Brown that should give the entire Democratic Senate caucus pause before signing onto Reid's disastrous filibuster project: I know Janice Rogers Brown, and she knows me, but we're not friends. The associate justice of the California Supreme Court has never been to my house, and I've never been to hers. Ours is a wary relationship, one that befits a journalist of generally liberal leanings and a public official with a hard-right reputation fiercely targeted by the left. ... I find myself rooting for Brown. I hope she survives the storm and eventually becomes the first...
May 9, 2005
It's nice to see that judicial nominees are finally getting a defense from the personal attacks and political smears of the Senate Democrats. Too bad that the GOP isn't the group providing them. After the endorsement by self-described liberal Ginger Rutland of the Sacramento Bee yesterday for Janice Rogers Brown, Nat Hentoff of the Village Voice joined the fight on the pages of the Washington Times today: The judicial confirmation process has become so savage in recent years that it would take a brave nominee to offer himself or herself for consideration. California Supreme Court Justice Janice Rogers Brown, for example, has been charged in a recent NAACP "Action Alert" with being "hostile to civil rights" and "having extreme right-wing views." I do not agree with all of Justice Brown's opinions, but I write this to show how prejudicially selective the prosecution of her is by the Democrats, the NAACP,...
May 10, 2005
The Washington Times reports today that Frist has decided to pull the trigger on the Byrd option using Priscilla Owen's nomination as the catalyst. Owen gives Frist the widest possible support at the moment, as well as being one of the two nominees who have waited the longest for confirmation: Senate Majority Leader Bill Frist plans for Texas Supreme Court Justice Priscilla Owen to be the judicial nomination on which he uses the "nuclear option" against Democratic filibusters later this month, according to Republicans familiar with his plans. Justice Owen, first nominated to the 5th U.S. Circuit Court of Appeals four years ago yesterday, has often been seen as the most likely nominee to be pushed though. And when Mr. Frist, Tennessee Republican, made his final offer to Democrats last month to avoid a showdown, he mentioned only one nominee: Justice Owen. ... She has impeccable academic credentials, received the...
He may be one of the loudest voices supporting the filibuster now, but less than five years ago, Senator Pat Leahy sang a different song on the floor of the Senate. According to the Congressional Record and an intrepid CQ reader, Leahy showed far more sympathy for the plight of judicial nominees back when Clinton did the nominating. Incredibly, he relied on then-Governor Bush's argument during the 2000 campaign that all nominees should receive an up-or-down vote to make this statement during the Senate debate on James Teilborg: Both parties have nominated those we consider to be our best choices. Obviously, I strongly support my friend of over 20 years, AL GORE. But I also know that the Republican Party has nominated a very distinguished Governor, George W. Bush. I mention this because Governor Bush and I, while we disagree on some issues, have one very significant issue on which...
May 12, 2005
Yesterday, CBS News reported that Ken Starr had come out against the filibuster rule change, and they quoted him as saying that the change represented a "radical departure" and that he opposed its implementation. This got a tremendous amount of exposure in the blogosphere, especially among those who normally vilify the former Whitewater special prosecutor at every other opportunity. Ramesh Ponnuru at the National Review Online contacted Starr to confirm his position on the Byrd/nuclear option -- and the response is quite different from what CBS first reported: "In the piece that I have now seen, and which I gather is being lavishly quoted, CBS employed two snippets. The 'radical departure' snippet was specifically addressed -- although this is not evidenced whatever from the clip -- to the practice of invoking judicial philosopy as a grounds for voting against a qualified nominee of integrity and experience. I said in sharp...
May 13, 2005
Just when we thought the smears on judicial nominees from the Democrats could not get any worse, Harry Reid moved from mere bullying to full-blown McCarthyism last night during the Senate debate. In an impromptu remark made during a prepared speech on the floor, he flatly stated that Henry Saad represented a security risk to the United States according to Saad's confidential FBI files: Minority Leader Harry Reid strayed from his prepared remarks on the Senate floor yesterday and promised to continue opposing one of President Bush's judicial nominees based on "a problem" he said is in the nominee's "confidential report from the FBI." Those highly confidential reports are filed on all judicial nominees, and severe sanctions apply to anyone who discloses their contents. Less clear is whether a senator could face sanctions for characterizing the content of such files. "Henry Saad would have been filibustered anyway," Mr. Reid said...
Senate Majority Leader Bill Frist announced this afternoon that after the completion of debate and vote on the highway bill, the next order of business on the Senate agenda will be the confirmation debate for Priscilla Owen and Janice Rogers Brown to their appellate court seats. This means that a filibuster will likely be attempted in the coming week, certainly on Brown if not Owen, and Frist says that such obstructionism will be rejected: The Majority Leader will continue to discuss an appropriate resolution of the need for fair up or down votes with the Minority Leader. If they can not find a way for the Senate to decide on fair up or down votes on judicial nominations, the Majority Leader will seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees. After the ruling, he will ensure that every Senator has...
May 14, 2005
The comments made on the Senate floor by Harry Reid about the information in the FBI file of Henry Saad have provoked a reaction from the Justice Department, the AP reports this morning. One day after Reid referred to a vague "problem" in Saad's file, Justice sent a letter to both Reid and Majority Leader Bill Frist about the proper use of FBI files: The Justice Department is edging into the Senate controversy over judicial nominees, writing key lawmakers after Democratic Leader Harry Reid publicly referred to an FBI file on one of President Bush's controversial appointees. "The letter expressed concern about recent remarks on the floor of the Senate which alluded to an FBI background investigation file provided by the Department of Justice to the Senate Judiciary Committee on a confidential basis in connection with a judicial nomination," a department official said Friday night. The official, who spoke only...
May 16, 2005
Robert Novak writes today that the pro-abortion lobby has financed a series of fishing expeditions into the financial records of judges deemed likely for federal appellate and Supreme Court nominations, and that one of the people with the pole is none other than a former aide to Senate Minority Leader Harry Reid. Mike Rice and his partner Craig Varoga, who used to work for Reid, work for NARAL Pro-Choice America and have begun work to collect financial dossiers on judges and justices around the country: On May 5, the U.S. Judicial Conference in Washington received a request from a man named Mike Rice from Oakland, Calif., for the financial disclosure records of U.S. Appeals Court Judge Edith Jones (5th Circuit) of Houston. A 20-year veteran on the bench, Jones is a perennial possibility for the U.S. Supreme Court. The demand for her personal records is part of a major intelligence...
The Senate Democrats have reportedly made a new offer to the GOP to avert a showdown over the use of the filibuster to block nominees to the federal court. They sweetened the same offer made last week to confirm three nominees to five today, and specifically picked three that they will now demand be withdrawn from consideration, in return for a pledge to forego future filibusters except in "extreme circumstances": With a showdown looming, a small group of Senate Democrats floated a compromise Monday on President Bush's stalled judicial nominees, offering to clear five for confirmation while scuttling three others. Under the proposal, circulated in writing, Republicans would have to pledge no change through 2006 in the Senate's rules that allow filibusters against judicial nominees. For their part, Democrats would commit not to block votes on Bush's Supreme Court or appeals court nominees during the same period, except in extreme...
May 18, 2005
With all sides acknowledging that a deal cannot be reached, the GOP will move Bush's judicial nominees for confirmation today, starting with Priscilla Owen and Janice Rogers Brown. This sets the stage -- finally -- for resolution of the unprecedented obstructionism that has kept the Senate from voting on almost a third of Bush's nominations to the appellate courts, the worst Senate record on nominations in recent history: Republicans, led by Majority Leader Bill Frist, spent yesterday accusing Democrats of using "unprecedented" tactics to block nominees who have majority support in the Senate. They said the minority party is shirking its constitutional responsibility to provide "advice and consent" on judicial nominees by preventing final votes on them. Democrats, led by Minority Leader Harry Reid, argued that by filibustering the nominees -- whom they describe as conservative judicial activists far outside the mainstream -- the Senate is officially registering its refusal...
I've held off mentioning the Not One Dime campaign, where Republicans have pledged to withhold all 2005 contributions to Senate campaigns and the national party until the GOP forces a vote on the Byrd option and eliminates filibusters on judicial confirmations. Now that Bill Frist has moved to do that, we need to make sure that we continue our pressure on the individual Republican Senators to ensure they support the motion when it comes up for a vote. Please call the Capitol switchboard at 202-225-3121, and ask to speak to at least one of the "wobblies" today. I called earlier and spoke to staffers in the offices of Susan Collins and John Warner; Chuck Hagel, Olympia Snowe, Lincoln Chaffee, and John McCain will be on my list later. Call while the offices are open and make sure you speak to someone live, and if you can do it, call as...
Harry Reid has already begun shutting down the Senate before the GOP even introduces a motion for cloture to confirm the nomination of Priscilla Owen, according to a statement by Bill Frist: “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...
May 19, 2005
Ian at the Political Teen has video of MS-NBC's Connected Coast to Coast, where the Not One Dime post I wrote yesterday (not today, Tony!) got major airplay. The segment was, I think, very fair and deliberately balanced and worth the download time even if you're on dial-up. Ornery, one of the blogs featured on the segment, posed this scenario for its readers: President Hillary Clinton and a Democratic Senate majority in 2009. My answer to that will be the same as it would have been for 214 years -- if that's what the voters want, then they will get the judicial confirmations that match. It's really that simple, and it always has been. To answer one last question posed by an e-mailer after the segment aired, even if MS-NBC considers me a stalwart conservative, I consider myself center-right. I don't oppose gay marriage, although I don't exactly support it...
May 20, 2005
Bill Frist will take another step towards invoking the Byrd Option of getting a ruling that filibusters are out of order on judicial nominees this morning, when he introduces a motion for cloture on the confirmation debate for Texas Supreme Court Justice Priscilla Owen: This morning, Senate Majority Leader Bill Frist will take an official step to proceed toward a vote on Owen's nomination, starting the clock ticking toward a showdown over whether Democrats will retain their right to block judicial nominees with the filibuster. Shortly after the Senate convenes this morning, Frist, R-Tenn., will file a cloture petition, which requires the approval of 60 of 100 senators, to end debate on Owen's nomination. Last session, Democrats blocked Owen and nine other appellate court nominees. He has renominated seven of them this year. Under Senate rules that petition must "ripen" for two days while the Senate is in session --...
Senator Rick Santorum apologized for his remarks during the Senate debate yesterday that used Adolf Hitler as part of an analogy about Democratic insistence on using the filibuster for judicial confirmations. He said he "meant no offense" by bringing up the most notorious genocidal maniac in history: "Referencing Hitler was meant to dramatize the principle of an argument, not to characterize my Democratic colleagues," Santorum, the No. 3 Republican in the GOP leadership in the Senate, said of his remarks Thursday. ... Santorum said that Democratic protests over Republican efforts to ensure confirmation votes would be like the Nazi dictator seizing Paris and then saying: "I'm in Paris. How dare you invade me? How dare you bomb my city? It's mine." Santorum later said in a release that his remark "was a mistake and I meant no offense." The Republican Jewish Coalition applauded the statement. "Sen. Santorum is sensitive to...
May 22, 2005
The Democrats in the Senate have complained that judicial nominee Janice Rogers Brown is outside of the mainstream, an extremist that threatens American personal freedoms. Ted Kennedy charges her with "a deep hostility to civil rights," which Charles Hurt notes in a short article in today's Washington Times. For Ted's idea of how freedom and civil rights should be protected, Hurt notes this passage from Brown's testimony at the Judiciary Committee: Mr. Kennedy also expressed concern about a case Justice Brown handled involving racial slurs in the workplace and scolded her for not being more concerned about such behavior. Justice Brown wrote that the First Amendment guarantees free speech and prohibits the federal government from ordering a supervisor not to use racial slurs. "How does that possibly advance the cause of justice and fulfill what we were trying to do to deal with this kind of verbal harassment in the...
May 23, 2005
Despite the media grandstanding of John McCain in attempting to fashion a compromise that winds up tossing judicial nominees under the bus, fellow GOP Senator George Allen predicts that the Senate will be forced to adopt the Byrd option and rule filibusters out of order for judicial confirmations. Allen told ABC yesterday that the Republicans have the votes to do it on Tuesday: Sen. George Allen, Virginia Republican, said yesterday that he doesn't think a compromise can be reached with Senate Democrats and predicted his party has the 51 votes needed to employ the so-called "nuclear option" that will prevent the filibustering of judicial nominees. "I just think that it is not that big of a deal for senators to exercise their constitutional responsibility," Mr. Allen said on ABC's "This Week." "I think that we'll get the constitutional option done, and we'll vote on judges." Also yesterday, Senate Majority Whip...
The Democrats have recently begun a scare campaign that claims Republicans want to eliminate the filibuster altogether, not just for judicial nominations but also for legislation. This new conspiracy theory states that the GOP will set a precedent on Tuesday that makes it easy for the majority to cast off this particular Senate tradition. Unsurprisingly, John McCain mouthed this canard to the press: "We're talking about changing the rules of the Senate with 51 votes, which has never happened in the history of the United States Senate," Mr. McCain said, adding that he was worried that eliminating the filibuster for judicial nominees would lead to the elimination of the 214-year-old parliamentary tactic altogether. "If you have 51 votes changing the rules of the Senate, nominations of the president is next, and then legislation follows that, and we will now become an institution exactly like the House of Representatives," Mr. McCain...
In all probability, we are less than 24 hours from the Senate deciding whether to return to majority rule on confirmation of judicial nominees or an endorsement of the usurpation of nominating authority by the Senate minority. Various reports have moderates in both parties working towards compromises that might be acceptable to enough Senators in both parties to block the showdown on the Constitutionality of the filibuster as applied to judicial nominations, but time is quickly running out on such efforts. George Bush made his expectations clear this morning: "My job is to pick people who will interpret the Constitution, not use the bench from which to write laws," Bush said from the White House. "And I expect them to get an up or down vote, that's what I expect. And I think the American people expect that as well — people ought to have a fair hearing and they...
I missed this Rassmussen survey last week when it first came out. Based on their polling between May 12-13, Rassmussen reports that 57% of all Americans support changing Senate rules to ensure up or down votes by the full Senate on judicial nominees: As the Judicial Nomination battle moves to its final days in the U.S. Senate, two weeks of partisan posturing have failed to change public opinion in a significant manner. Today, 57% of Americans say that "Senate rules should be changed so that a vote must be taken on every person the President nominates to become a judge." That's unchanged from two weeks ago. The only change of more than a point or two in the data came when we asked about the threat of some Democrats to procedurally shut down the Senate if the filibuster rules are changed. Two weeks ago, 51% of Americans were opposed to...
News services are reporting that a centrist group of 12 Senators has reached a compromise on judicial confirmations: Centrists from both parties reached a compromise Monday night to avoid a showdown on President Bush's stalled judicial nominees and the Senate's own filibuster rules, officials from both parties said. These officials, who spoke on condition of anonymity, said the agreement would clear the way for yes-or-no votes on some of Bush's nominees, but make no guarantee. Under the agreement, Democrats would pledge not to filibuster any of Bush's future appeals court or Supreme Court nominees except in "extraordinary circumstances." For their part, Republicans agreed not to support an attempt to strip Democrats of their right to block votes. Under the agreement, Texas Supreme Court Justice Priscilla Owen, nominated to a seat on the 5th Circuit Court of Appeals in New Orleans, would advance to a final confirmation vote. If the Republicans...
Based on reaction around the Internet, it appears that everyone except for the Senate and the media are unhappy about this compromise on judicial filibusters. Why? Let's take a look at the text of the deal and see if we can comprehend what each side won and lost. Part I: Commitments on Pending Judicial Nominations A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit). B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit). Obviously, this gives the White House three of the most contested and vilified judicial nominees in the process, although quite frankly, the Democrats never put together any good argument against any of these three. The Left...
May 24, 2005
The fourteen Senators who banded together last night to reach a compromise on judicial confirmations expect, I'm sure, to bask in the glow of an approving Exempt Media blitz, and they will certainly receive that, to a certain extent. However, this morning's editorial pages from the three most influential newspapers demonstrates more diffidence than love. The Washington Post treats the centrist minority as conquering heroes: It is a demonstration, in an era of increasingly bitter partisanship, of what can still be accomplished through negotiation and the proffer of a modicum of trust across the aisle. Interest groups on both sides railed against compromise and threatened its architects; Senate leaders of both parties and the president did more to obstruct a deal than to facilitate it. The 14 senators nonetheless managed to put principle above self-protection. Put principle above self-protection? What principle was that? Even the Washington Post can't identify it:...
While the venerable hands of John Warner and Robert Byrd applaud themselves and their twelve comrades for devising a compromise that supposedly ends the battle over judicial confirmations, the rest of the country on both sides of the political divide have woken to the fact that nothing has really been resolved. Even the one major daily whose editorial board lavished praise on the centrists reports in its front-page analysis that this peace treaty amounts to little more than a temporary cease-fire: It means that at least three of the nominees who have been blocked for years will make it to the appellate courts, while at least two will not. Beyond that, without a total ban on judicial filibusters, as the nuclear option would have guaranteed, the president will not have such a free hand in selecting a Supreme Court nominee. He also will be under pressure from the moderates to...
That's what the New York Times says this morning, in an analysis by Richard Stevenson that tries to look at the compromise as part of the overall power struggle for Bush's legislative agenda. Stevenson argues that the compromise frees up the most contentious and desired nominees for confirmation and the legislative process for more pressing issues, such as CAFTA and Social Security: President Bush won enough from the bipartisan compromise on judicial nominees on Monday night to claim a limited victory, but he now faces a series of additional tests of his political authority, with the stakes extending to the fate of his second-term agenda. On the plus side for Mr. Bush, the bipartisan agreement among 14 centrist senators expressly called for up-or-down votes on three of his nominees to federal appeals court seats, all but ensuring their confirmations, though it left in limbo the fate of two more. ......
The Senate passed a cloture motion on the debate for Priscilla Owen's confirmation to the appellate court. Seventeen Democrats, despite yesterday's agreement and the unanimous accolades it received from Harry Reid and his crew, voted for a filibuster. Here's the Vanguard of the New Comity: Biden, Del.; Boxer, Calif.; Cantwell, Wash.; Corzine, N.J.; Dayton, Minn.; Dodd, Conn.; Dorgan, N.D.; Feingold, Wis.; Kennedy, Mass.; Kerry, Mass.; Lautenberg, N.J.; Levin, Mich.; Lincoln, Ark.; Murray, Wash.; Reed, R.I.; Sarbanes, Md.; Stabenow, Mich....
May 25, 2005
I posted yesterday about editorial-board reaction to the compromise agreement on judicial confirmations, and noted that the New York Times had failed to comment on the development -- a surprising abstention, given their previous interest. The Gray Lady apparently took a day to mull it over, and came up with an unenthusiastic endorsement whose main complaints appear to be the Republicans who joined the centrists and a typical, if stunning, misrepresentation of Constitutional structure: If nothing else, the deal to end the Senate's "nuclear option" showdown was heartening in that it did demonstrate that moderates still exist in Washington, and actually have the capacity to work together to get things done. On the other hand, it's not terribly encouraging to see how low the bar is for joining the moderate camp. The seven Republicans who played the critical role in brokering an agreement include several staunch conservatives whose claim to...
The Senate has confirmed the nomination of Priscilla Owen to the Fifth US District Court of Appeals after four years of Democratic obstructionism. She received 56 votes for confirmation, including two from Democrats: The Senate on Wednesday confirmed Priscilla Owen as a federal appellate judge, ending the four-year ordeal of the Texas jurist who was thrust into the center of the partisan battle over President Bush's judicial nominations. The 56-43 vote to appoint Owen to the New Orlean-based 5th U.S. Circuit Court of Appeals was a consequence of an agreement reached earlier this week that averted, for the time being, a bitter dispute over Democratic use of the filibuster to block Bush's judicial choices. Bush, pleased with the vote on a nominee he said would bring "a wealth of experience and expertise" to the bench, said it should be followed by others. "I urge the Senate to build on this...
May 26, 2005
Hugh Hewitt has an excellent column titled "Non-Nuclear Fallout" in today's Daily Standard, which discusses the winners and losers from the "aftermath of a sellout," as Hugh puts it. After today's latest display of the so-called new comity in the Senate, as the Democrats filibustered John Bolton's nomination despite an earlier promise by Harry Reid to allow a vote, Hugh's analysis rings even more true: ON THE PRESIDENTIAL FRONT, it wasn't only McCain who lost big with the deal. So did Senator Bill Frist, at least for the moment, as legitimate questions are being raised about his ability to run the country when he cannot even corral his own caucus. Nebraska's Chuck Hagel contributed to the collapse of the caucus with his reprise of Hamlet on every Sunday show that would have him. Winners include Virginia's George Allen and Rudy Giuliani and Mitt Romney. Hugh gives me a prominent mention...
May 27, 2005
I have an appeal for all CQ readers regarding the Not One Dime campaign. Many of you have written to me in support of this effort to make our voices heard at the RNC by withholding donations to the NRSC until the GOP caucus improves its leadership in the Senate and starts acting like a majority party. In accordance with the enthusiastic response, I've registered a new domain -- www.notonedimemore.org -- and I need a logo for the effort which captures the essence of what we want. The plan for the moment is to have the new domain point to the Judiciary category on CQ, but a separate website may develop later. I'd like to offer something for this contest besides the glory and fame that will surely follow the successful effort [cough, cough], but right now I don't have anything else in mind. However, I can promise the finalists...
May 28, 2005
The Washington Times notices that a number of President Bush's judicial nominees were left out of the agreement that supposedly ended confirmation filibusters, except under "extraordinary circumstances". Other pundits have noted the ambiguity of the memorandum; however, the Times' editorial board points out that some of those specifically ignored have waited as long or longer than the enumerated nominees, and suspects that they, too, have been thrown under the bus by the Seven Dwarves: In a subsection of the memo --"Part I: Commitment on Pending Judicial Nominations" -- the senators specifically refer to five nominees. For three of these five so-called "pending" nominees (Priscilla Owen, Janice Rogers Brown and William Pryor), the gang committed themselves to permitting an up-or-down confirmation vote on the Senate floor. For the other two (William Myers III and Henry Saad) of the five "pending" nominees, the gang made no such commitment. Again, what were the...
The AP's David Espo gets behind the scenes in the hours after the announcement of the compromise on judicial confirmations that the Gang of 14 heralded as a new era of Senate comity. Far from an emergent period of truce and trust, Espo reports that Harry Reid and the Democrats immediately began planning the exploitation of the pact to their advantage even as the indulgent backslapping still echoed in the hallways: The signatures of 14 Senate centrists, seven from each party, spilled across the last page of a hard-won compromise on President Bush's judicial nominees. But whatever elation the negotiators felt, the Senate's Democratic leader did not share it. In the privacy of his Capitol office last Monday night, Sen. Harry Reid, D-Nev., asked for commitments from six Democrats fresh from the talks. Would they pledge to support filibusters against Brett Kavanaugh and William Haynes, two nominees not specifically covered...
May 29, 2005
Yesterday on the Northern Alliance Radio show, I made an assertion that the judicial confirmation compromise both sprang from the presidential aspirations of its key GOP proponents and that it had affected the 2008 race already. We didn't have time to hash it out, as the hour came to a conclusion shortly afterwards, but Ralph Hallow has more on the latter hypothesis in today's Washington Times. He astutely notes that the GOP base may draw closer to George Allen of Virginia, who has resolutely stood for the principles enumerated by the GOP during the last election while the Seven Dwarves face irate voters back home: Last week's Senate compromise that averted a showdown over filibustered judicial nominees was actually the opening salvo of the 2008 presidential campaign, several veteran political observers say. The unexpected consequence of the filibuster compromise is to give a boost to the presidential prospects of Sen....
May 31, 2005
Imagine my surprise when, after reading Howard Kurtz' excellent profile of Jeff Jarvis in the first half of his lengthy column today, I scrolled down to see that he had linked CQ and the Not One Dime campaign. Kurtz quoted my post explaining the effort without comment, except to say that I have called for a financial boycott of GOP leadership. For those who may come here for the first time from Kurtz' link, the Not One Dime campaign urges people to withhold donations to the National Republican Senatorial Campaign until they eliminate the judicial filibusters and get President Bush's nominations an up-or-down vote in the floor of the Senate. The NRSC raised millions of dollars from Republican voters by promising that judicial confirmations would be their highest domestic priority, but then after winning an eleven-seat majority, incomprehensibly dawdled for months before addressing the issue. That delay allowed the opposition...
June 2, 2005
The Duke at Pekin's Prattles received a letter from Senate Majority Leader Bill Frist, sounding a curiously desperate note in their efforts to raise money this month. Frist claims that new funds are necessary to ensure that all of Bush's judicial nominees get their up-or-down votes: Dear Friend, I need your help. I ask that you immediately make an online contribution of $25, $50, $75 or even $100 to the National Republican Senatorial Committee (NRSC). To make a contribution on their secure server, please click here. As Senate Majority Leader, I want to assure you that, if the Democrat's campaign of judicial obstruction resumes, I will not hesitate to use the Constitutional Option. We must ensure that President Bush's qualified judicial nominees get the up-or-down votes they deserve. That's why we need to counter the Democrat's attacks and misinformation - including the multi-state, multi-million dollar advertising by liberal special interest...
June 6, 2005
The Supreme Court dealt a body blow to medical marijuana advocates this morning by ruling that the federal ban on consumption trumps more liberal laws approved by individual states: Federal authorities may prosecute sick people who smoke pot on doctors’ orders, the Supreme Court ruled Monday, concluding that state medical marijuana laws don’t protect users from a federal ban on the drug. The decision is a stinging defeat for marijuana advocates who had successfully pushed 10 states to allow the drug’s use to treat various illnesses. Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana. In this case, Stevens argues for judicial restraint and conservatism. The court could easily have declared for state's rights and invalidated the ban enacted by Congress and its agency, the FDA. Instead, he avoided the entire issue of the merits or lack thereof...
June 8, 2005
The Washington Post reported today that after the rhetoric of "saving the Republic" and the schadenfreude of watching Bill Frist slowly roast over criticism from his base, the bloom may be off the judicial-compromise rose among the Left. Many have begun to complain that the Democratic centrists allowed the most objectionable jurists of President Bush's nominees to proceed to a floor vote in return for the right to block less-objectionable choices, and their favorite case is Janice Rogers Brown: Democrats generally cheered, and Republicans groused, when a bipartisan group of senators crafted a compromise on judicial nominations last month. But with the Senate now confirming several conservative nominees whom Democrats had blocked for years, some liberals are questioning the wisdom of the deal and fretting about what comes next. "Our problem with the compromise is the price that was paid," Del. Eleanor Holmes Norton (D-D.C.) said yesterday. She and other...
June 9, 2005
The final member of the three judges guaranteed an up-or-down vote for their confirmations to the federal appellate court has been confirmed. William Pryor, who had already started serving on the court due to a recess appointment, won confirmation by a 53-45 vote in today's Senate session: With a vote of 53-45, Pryor was approved for 11th U.S. Circuit Court of Appeals, the Atlanta-based court that handles federal appeals from Alabama, Georgia and Florida. President Bush gave Pryor a recess appointment in February 2004 after Democrats filibustered his confirmation. That appointment would have ended this year if Pryor had not been confirmed by the Senate. The Senate has confirmed three of President Bush's most-wanted appellate nominees in less than three weeks after a deal struck by Senate centrists looking to avoid a partisan battle over judicial filibusters. Three Republicans voted against Pryor's confirmation, Olympia Snowe, Susan Collins and Lincoln Chafee,...
June 13, 2005
For those who thought that the filibuster had been rendered nearly extinct for executive appointments, the Washington Times reports that the Democrats have instead reworked their PR campaign to present another rationale for restarting them. Rather than argue about "extremism" -- an argument that they lost on the merits -- Democrats will now produce endless requests for more documentation in an effort to convince Senators that the Democratic filibusters support Senatorial privilege: The new filibusters are not based publicly on ideologies -- as with several of the nominees to the federal bench -- but on demands for additional information from the administration. Already stalled under that strategy is John R. Bolton, Mr. Bush's pick to be ambassador to the United Nations. Also, Democrats led by Sen. Edward M. Kennedy of Massachusetts stopped a federal appeals court nominee last week by demanding that more of his unpublished legal opinions be provided...
June 14, 2005
The Senate yesterday issued a historic apology to African-Americans for its refusal to act against the practice of lynching for decades, effectively sidelining the federal government while thousands of victims died at the hands of vigilantes. Unfortunately, that apology doesn't address the tool used by the Senate that allowed it to be hijacked by a handful of racists in the early 20th century, and the media coverage barely mentions how it happened: The formal apology, adopted by voice vote, was issued decades after senators blocked antilynching bills by filibuster. The resolution is the first time that members of Congress, who have apologized to Japanese-Americans for their internment in World War II and to Hawaiians for the overthrow of their kingdom, have apologized to African-Americans for any reason, proponents of the measure said. "The Senate failed you and your ancestors and our nation," Senator Mary L. Landrieu of Louisiana, chief Democratic...
June 15, 2005
The Los Angeles Times opinion pages runs a commentary by Andres Martinez pointing out the historical hypocrisy of the Senate in their lynching apology Monday. As I wrote yesterday, the Senate and the national news media -- including the LA Times -- studiously avoided more than a passing mention of the filibuster's central role in ensuring that the federal government could not intervene to save lynching's primarily African-American victims: Astonishingly, Senate Resolution 39 makes no mention of the f-word, which denotes the mechanism that allows a minority of legislators to block votes. The resolution duly notes that at least 4,742 people, mostly African Americans, were lynched in the U.S. between 1882 and 1968; that nearly 200 anti-lynching bills, backed by seven presidents, were introduced in Congress during the first half of the 20th century; that the House of Representatives did pass three strong anti-lynching measures, but that the Senate never...
June 23, 2005
The House passed a Constitutional amendment that will guarantee Congress the power to regulate how the flag is treated, including the power to outlaw "desecration" of the American flag, on a fairly bipartisan vote. The measure now goes to the Senate, which has killed it in years past on a more partisan basis, but the Washington Post reports that may change this year: A constitutional amendment that would allow Congress to ban flag burning passed the House yesterday, and congressional leaders said it has a strong chance to clear the Senate for the first time, sending it to the states for ratification. The House has passed the measure four times before, but it has always fallen short of the two-thirds vote needed in the Senate. But several changes in the Senate shifted several votes to the bill's supporters, and a lobbyist who leads the opposition said the absence of one...
The Supreme Court has ruled that cities can seize property under eminent domain, even if that property has been put to productive use and maintained properly, for commercial as well as public use as long as one can stretch an argument about "public use" to its breaking point. In a 5-4 decision, SCOTUS upheld the confiscation of private homes in New London, CT, so that the city could build a new facility for Pfizer Labs: In a 5-4 decision, the court upheld the ability of New London, Conn., to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the...
June 24, 2005
Michael Bloomberg need look no further than a site for New York's controversial new football stadium than the offices of the New York Times, or perhaps the home of its publisher, Arthur "Pinch" Sulzberger. In today's editorial, the Paper of Record cheers the Supreme Court decision in the Kelo case yesterday and its attack on property rights: The Supreme Court's ruling yesterday that the economically troubled city of New London, Conn., can use its power of eminent domain to spur development was a welcome vindication of cities' ability to act in the public interest. It also is a setback to the "property rights" movement, which is trying to block government from imposing reasonable zoning and environmental regulations. ... In a blistering dissent, Justice Sandra Day O'Connor lamented that the decision meant that the government could transfer any private property from the owner to another person with more political influence "so...
Earlier today, in the aftermath of the Kelo decision, a CQ reader reminded me that judicial activism is not a new phenomenon. In fact, some of the greatest jurists in American history have opined on its dangers for more than a century. They accurately predicted the politicization of the judiciary and the overarching reach the bench could garner through the philosophy of the "living Constitution". Here are the echoes of protest and warning that have gone unheeded until, perhaps, we are too late to stop the worst of its damage. Chief Justice Charles Evans Hughes, in 1916: “We are under a Constitution, but the Constitution is what judges say it is . . . .” Chief Justice Harlan F. Stone, in 1936: “ . . . the only check upon our own exercise of power is our own sense of self-restraint.” Justice Oliver Wendell Holmes, in 1930: “As the decisions...
June 25, 2005
The rapid growth of class-action lawsuits has created a booming industry for the legal profession, one which promises big payouts for relatively little work as defendants tend get intimidated into settlements rather than go to court. Such lucrative opportunities eventually attracts those with lower ethical bars to cut corners and create shortcuts to greater amounts of money, and the feds believe they have found just that problem at one of the most prominent class-action legal firms in the country: Federal prosecutors here have charged a retired Palm Springs, Calif., lawyer with taking kickbacks from a prominent New York law firm in exchange for serving as plaintiff in dozens of class-action and shareholder lawsuits that earned the firm $44 million over 20 years. The indictment against 78-year-old Seymour M. Lazar, unsealed Thursday, stems from a years-long investigation by the U.S. attorney's office into the practices of Milberg Weiss Bershad Hynes &...
June 27, 2005
The Supreme Court released its long-awaited decision on the display of the Ten Commandments this morning, deciding on a narrow 5-4 majority to ignore the frieze behind themselves and rule such displays unconstitutional without diluting them with multicultural trappings. The dissent authored by Justice Scalia scorched the "dictatorship of a shifting Supreme Court majority" as a governing principle: In a narrowly drawn ruling, the Supreme Court struck down Ten Commandments displays in courthouses Monday, holding that two exhibits in Kentucky crossed the line between separation of church and state because they promoted a religious message. ... The justices voting on the prevailing side Monday left themselves legal wiggle room on this issue, however, saying that some displays — like their own courtroom frieze — would be permissible if they're portrayed neutrally in order to honor the nation's legal history. But framed copies in two Kentucky courthouses went too far in...
June 28, 2005
When I wrote about my reaction to the Kelo decision, I included a portion of a letter written by Mark Twain over 120 years ago that I felt spoke directly to the issue. After losing a copyright case that he clearly should have won, Twain wrote the following in a letter to a Massachusetts group seeking to honor him with an award: It does look as if Massachusetts were in a fair way to embarrass me with kindnesses this year. In the first place, a Massachusetts judge has just decided in open court that a Boston publisher may sell, not only his own property in a free and unfettered way, but also may as freely sell property which does not belong to him but to me; property which he has not bought and which I have not sold. Under this ruling I am now advertising that judge's homestead for sale,...
June 30, 2005
One of CQ's sources within the legal community informs me that the Bush administration is considering James Ardaiz, the presiding justice of California's Fifth District Court of Appeal, for a nomination to an opening on the notoriously far-left Ninth Circuit, which covers most of the western United States. Ardaiz has served in his present role for eleven years, an appointee of Governor Pete Wilson, after six years as an associate justice on the same circuit as an appointee of George Deukmejian. He has a total of twenty-four years of experience as a jurist, and prior to that spent six years as a prosecutor for the County of Fresno, specializing in homicide cases. Justice Ardaiz has strongly supported California's three-strikes law, and has authored a book on its use and effect. He has a long track record of working with legislatures and other jurists in the California system as spokesman for...
Nancy Pelosi held a press conference this afternoon, during which reporters asked her about her position on the Kelo decision. The SCOTUS ruling, CQ readers will recall, allows legislative bodies to exercise eminent domain to seize private land and transfer it to other private ownership, as long as it considers the transfer beneficial to the public good. It does, however, specifically leave those decisions to the legislature, a nuance that Pelosi appears to have missed. Senator Jon Cornyn will shortly introduce legislation to restrict the use of federal funds for projects such as those involved in the Kelo case that simply trade one private owner for another. When reporters asked Pelosi about Cornyn's effort, she revealed that she knows nothing about Constitutional law, the Kelo decision, or even the power invested in the Congress that she supposedly leads: Q Later this morning, many Members of the House Republican leadership, along...
July 1, 2005
As Sherlock Holmes would often say, the game's afoot -- Sandra Day O'Connor has resigned from the Supreme Court: Supreme Court Justrice Sandra Day O'Connor submitted her retirement notice to President Bush on Friday, setting the stage for a contentious battle over her replacement. ... One of the court's two swing votes, O'Connor often sides with more conservative justices as she did in the Bush v. Gore ruling in 2000. O'Connor's retirement puts more pressure on the Senate than a Rehnquist retirement would have done. Rehnquist has consistenly provided a conservative voice on the court, and replacing him with another conservative would probably not have concerned moderate Democrats, who want to keep their powder dry for selected battles. O'Connor, however, has voted more from the center, and replacing her with a staunch conservative might get some of those moderate Democrats to the firing lines in the political battle to come....
(I could actually have picked all of the categories for this post, as the Supreme Court now encompasses the entirety of human endeavor.) Over at Patterico's Pontifications, Patterico suggests, in an update to a guest post by Angry Clam that is both angry and potty-mouthed, that a good choice to replace Sandra Day O'Connor on the Supremes would be Emilio Garza. I agree; but as always, I have my idiosyncratic reasons for doing so. UPDATE: Patterico notes in the comments here and on his own blog that he is not suggesting Judge Garza for the Supreme Court; he is predicting that Garza will get the nod. Patterico's actual fave for the seat is Judge J. Michael Luttig, who has sat on the 4th Circus for fourteen years. Apologies, Patterico! O'Connor was the first woman appointed to the Court. She was appointed by Ronald Reagan, but she turned out not to...
July 2, 2005
The Democrats wasted no time coming out on the offensive against George Bush and the upcoming Supreme Court nomination. Senators from the minority caucus isseud warnings yesterday that they fully intend to continue their obstructionist tactics unless Bush meets with them in person to get their prior approval on any candidate: Capitol Hill braced yesterday for the first Supreme Court confirmation fight in nearly 11 years, and Democrats warned President Bush to consult them "face-to-face" before offering a replacement for Justice Sandra Day O'Connor. ... Sen. Charles E. Schumer, New York Democrat and a member of the committee, told reporters it would be "a shame" if Mr. Bush makes his nomination "without real face-to-face, back-and-forth consultation." Democrats argue that this is the correct meaning of the Senate's constitutional "advice and consent" role. No it isn't, and no Senate has ever demanded such a process from a President in American history....
July 3, 2005
Democrats have apparently decided to be helpful in the upcoming judicial nomination process. Instead of caterwauling at the mere mention of the SCOTUS opening, they now have people floating suggestions in the media for "acceptable" choices. Norm Orenstein advises Bush to look outside the judiciary altogether and select a politician instead: Choosing judges, especially at the Supreme Court level, has taken on a heightened importance -- and presidents and their partisans want to make sure they know what they are getting. A track record at the federal appeals court level is a much safer predictor of behavior at the next level up than service in the U.S. Senate, or as a governor or in other political office. But having a court that consists largely or only of nonpoliticians has serious costs for the public. Not only are judges less inclined to think broadly of the country and its social and...
July 6, 2005
Matt Drudge reports today that Senator Chuck Schumer has no intention on preserving the comity of the upper chamber when George Bush nominates a replacement for Sandra Day O'Connor. Instead, he has joined his colleagues in the obstructionist camp to paint whomever Bush selects as a radical, regardless of their identity: Senate Judiciary Committee member Chuck Schumer got busy plotting away on the cellphone aboard a Washington, DC-New York Amtrak -- plotting Democrat strategy for the upcoming Supreme Court battle. Schumer promised a fight over whoever the President’s nominee was: “It's not about an individual judge… It's about how it affects the overall makeup of the court.” The chairman of the Democratic Senatorial Campaign Committee was overheard on a long cellphone conversation with an unknown political ally, and the DRUDGE REPORT was there! Schumer proudly declared: “We are contemplating how we are going to go to war over this.” For...
The Democrats ratcheted up the tension over the new opening on the Supreme Court, declaring today that the gestures from the Bush administration today to key Senate Democrats do not amount to their definition of consultation. Ted Kennedy and Dick Durbin want a list of potential candidates from the White House that will allow the minority party to declare which are acceptable instead: Democratic Whip Dick Durbin of Illinois got a call Wednesday from White House chief of staff Andrew Card, who is with Bush in Europe for the Group of Eight summit. Card also has called Democratic Sens. Ben Nelson of Nebraska, Charles Schumer of New York and Edward Kennedy of Massachusetts, but no names of possible nominees were mentioned, according to the lawmakers' aides. The Democrats said they want to know more — specifically, whom the president is considering — before Bush sends his first Supreme Court nomination...
July 8, 2005
I have my flak jacket, my helmet, and my concrete bunker. I'm going to need them... because I'm about to be in flagrante delicto of committing the act of controversy. I am about to make a case for a very selective version of substantive due process. I'm not talking about the trivial case that only argues for incorporation of some or all of the Bill of Rights to the states. I mean a full-throated argument in favor of so-called "fundamental rights," rights not explicitly enunciated in the Constitution, being used by judges to strike down some laws. Yep, the same judicial philosophy that was used -- misused, in my opinion -- to bring us the abominations of Dred Scott, Griswold, and Roe, along with many, many others. I hope to show that these were errors of execution, but that the principle is not necessarily wrong per se. And I even...
Continue reading "Dafydd: Hip Deep in the Big Muddy of SDP" »
July 9, 2005
Senator Harry Reid proved himself completely tone deaf when it comes to the issue of nominations to the Supreme Court. While his fellow Democrats plan on going to war over the opening created by Sandra Day O'Connor's retirement, Reid offers a way to avoid partisan battle -- by having the White House completely capitulate: Contending that President Bush's far-right allies are pushing him to appoint an extreme conservative to the Supreme Court, Senate Democratic leader Harry Reid pointed to liberal icon Earl Warren as a model. Earl Warren? The Godfather of judicial activism? In his party's weekly radio address, Reid, D-Nev., noted that Saturday marked the anniversary of the 1974 death of Warren, a Republican whose court established a liberal tradition with its 1954 school desegregation ruling and other decisions. Reid said Warren had been able to forge a consensus on the court that would become the national consensus. "Mr....
July 14, 2005
The members of the Senate's Gang of 14 that held off the GOP push for the elimination of filibusters on judicial nominations have scheduled a breakfast meeting to further discuss the ramifications of their agreement, the New York Times reports. Sheryl Stolberg reports that the Gang wants to remain unified to ensure a smooth process on the upcoming confirmation fight, but that appears easier said than done: With the resignation of Justice Sandra Day O'Connor - and renewed speculation that Chief Justice William H. Rehnquist, who has thyroid cancer and was in the hospital Wednesday with a fever, could retire - the members of the Gang of 14 are trying to chart a course that would keep them unified in the event of a divisive Supreme Court confirmation fight. On Thursday, they are planning to meet for breakfast to do just that. If the gang sticks together, it could become...
July 18, 2005
Is it too much to ask for a newspaper's editorial board to have passed their high-school Civics classes? Apparently so in Minneapolis, where the Star-Tribune's editorial this morning once again attempts to opine on the Supreme Court opening left by Sandra Day O'Connor. They start in the predictable pattern set by earlier missives: Americans have come to see how profoundly a single justice can influence the court and the country. No one has seized upon that lesson with more fervor than America's religious right-wingers, who consider O'Connor's retirement during a Republican administration a chance to redirect the court. They won't readily say it, but they're eager to see another ideological bedfellow on the bench -- a predictable thinker whose views on abortion rights, gay marriage, police power and strong governmental authority reflect their own. Uh-huh. I don't hear them complaining about Chuck Schumer demanding that any nominee answer questions about...
July 19, 2005
UPDATE: Beldar has
more on this topic, including a lengthy explanation in my comments. And on a personal note, I want to wish him well in his recovery from a recent (and blessedly mild) heart attack.
Figuring that the press has eaten itself enough over the Plame leak investigation, George Bush announced that he will toss the media a fresh bone on which to chew for the next few weeks, tonight at 9 PM EDT: President Bush has decided whom to nominate to succeed Sandra Day O'Connor on the Supreme Court and was poised to announce his pick in a prime-time Tuesday night address. White House press secretary Scott McClellan said the Bush administration was asking television outlets to broadcast the speech live. Bush's spokesman would not identify the president's choice. But there was intense speculation that it would be Judge Edith Clement of the U.S. Court of Appeals in New Orleans. Speculation all morning long has centered on Edith Clement, as the gentlemen at Power Line have discussed. Neither appear terribly impressed with her selection, if it turns out to be her. Clement did get...
ABC and Fox News now report that Bush will name John Roberts as Sandra Day O'Connor's replacement. (via Michelle Malkin) If true, this is great news. More later as it develops. UPDATE: People For the American Way won't share my enthusiasm: In the short time since he was confirmed by the Senate in May 2003, Judge Roberts has issued troubling dissents from decisions by the full D.C. Circuit not to reconsider two important rulings. These included a decision upholding the constitutionality of the Endangered Species Act as applied in a California case and a ruling against Bush Administration efforts to keep secret the records concerning Vice President Cheney's energy task force. Hey, this might be a two-fer: a conservative justice and a member of the CheneyChimpyMcHalliburtEnron conspiracy! UPDATE II: He doesn't have many fans at the Alliance for Justice, either: As a political appointee in the Reagan administration, Roberts worked...
July 20, 2005
If George Bush wanted to set the media elite back on their heels with his first Supreme Court nomination, he succeeded brilliantly. The selection of John Roberts appears to have stunned editorial writers in the four largest cities. Their entries today heralding this new judiciary battle show a healthy dose of caution and calls for a dignified process. Most of them tip their hat to Bush's political skills, noting the difficulty for Democrats to deal with the thin paper trail of Roberts, but still point out potential land mines for his confirmation. The Washington Post gives Bush the most credit for a thoughtful selection: IN NOMINATING Judge John G. Roberts Jr. to the Supreme Court, President Bush picked a man of substance and seriousness. Judge Roberts has served only briefly on the U.S. Court of Appeals for the D.C. Circuit, but he was previously among the country's best-regarded appellate lawyers,...
UPDATE II: Jon at QandO nails
bad reporting and criticism at Tapped. It's been a while since I've linked to Jon, but I read his neo-libertarian (libertarianism mixed with sanity) blog every day, and I recommend it to everyone. Great stuff there.
I predict that, despite the mostly-pleasant sounds wafting from Washington circles in the past fourteen hours since George Bush made John Roberts his first Supreme Court nominee, we will see a highly contentious public battle over his confirmation. Senators Leahy, Schumer, Kennedy, and Durbin signaled in muted tones that they have no intention of treating Roberts expeditiously, and instead have emphasized that they will treat this confirmation as "starting from scratch" -- which, as Jon Cornyn correctly deduced, presaged obstructionist tactics. But that only speaks to tactics. The ammunition for the Democrats will prove too seductive to refrain from firing, and the largest battle will actually return them to a favorite accusation against the Bush administration: their conduct of the war on terror. Last week, Roberts joined in a unanimous decision to affirm the jurisdiction of military tribunals in processing terrorists detained overseas, a decision that has a solid basis...
After the initial glow of George Bush's announcement of John Roberts as his Supreme Court nominee, rumblings have surfaced on the right about his lack of a track record defending conservatism. The loudest of these rumblings comes from the ever-outspoken and highly entertaining Ann Coulter, who takes her accustomed no-holds-barred approach to venting her dissatisfaction: So all we know about him for sure is that he can't dance and he probably doesn't know who Jay-Z is. Other than that, he is a blank slate. Tabula rasa. Big zippo. Nada. Oh, yeah...we also know he's argued cases before the supreme court. big deal; so has Larry Flynt's attorney. But unfortunately, other than that that, we don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever. ... It means absolutely nothing that NARAL and Planned Parenthood attack him: They also...
Some Senate Democrats signaled today that they will not likely support any attempt to filibuster SCOTUS nominee John Roberts, at least not based on his judicial philosophy. The AP reports that two key Senators, Dianne Feinstein and Joe Lieberman, have characterized Roberts as mainstream enough not to invoke the "extraordinary circumstances" envisaged by the Gang of 14: The possibility of a Democratic filibuster against Supreme Court nominee John Roberts in the Republican-controlled Senate seemed to all but disappear Wednesday. ... "Do I believe this is a filibuster-able nominee? The answer would be no, not at this time I don't," said Sen. Dianne Feinstein, D-Calif., a strong abortion-rights supporter and a committee member. ... Sen. Joe Lieberman, D-Conn., said the group had sent a message to the president to send the Senate a mainstream conservative. "And it appears at first look that Judge Roberts is that," he said. Roberts is "in...
July 21, 2005
Who needs the blogs? The Washington Post managed to kill off a John Roberts rumor within 24 hours, albeit one they helped fuel in yesterday's coverage of his SCOTUS nomination. Roberts, contrary to liberal-activist groups' hysteria, has never belonged to the Federalist Society: Everyone knows that, like all good Republican lawyers, John G. Roberts Jr. is a member of the Federalist Society, the conservative law and public policy organization where right-of-center types meet to denounce liberalism and angle for jobs in the Bush administration. And practically everyone -- CNN, the Los Angeles Times, Legal Times and, just yesterday, The Washington Post -- has reported Roberts's membership as a fact. One liberal group opposed to Roberts's nomination, the Alliance for Justice, has noted it on its Web site. But they are wrong. John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been....
The Los Angeles Times must have taken its coverage about the lack of controversy attached to SCOTUS nominee John Roberts to heart. Instead of reporting further on Roberts, the LAT decided to go after his wife's pro-life beliefs instead: While Supreme Court nominee John G. Roberts Jr.'s views on abortion triggered intense debate on Capitol Hill on Wednesday, there is no mistaking where his wife stands: Jane Sullivan Roberts, a lawyer, is ardently against abortion. A Roman Catholic like her husband, Jane Roberts has been deeply involved in the antiabortion movement. She provides her name, money and professional advice to a small Washington organization — Feminists for Life of America — that offers counseling and educational programs. The group has filed legal briefs before the high court challenging the constitutionality of abortion. A spouse's views normally are not considered relevant in weighing someone's job suitability. But abortion is likely to...
I could have more provacatively titled this post "Are Atheists Actually Demented?" because that is the impression I get from the founder and head of the premier anti-religion organization in the country, Americans United for the Separation of Church and State -- or United Separators, as I call them for short. Up on their website, the United Separators have come out swinging against Judge John. G. Roberts, who the president named as his nominee to the Supreme Court a couple of days ago. In "Senate Should Reject Confirmation Of John G. Roberts To Supreme Court, Says Americans United," an unsigned article posted yesterday, founder and chief anti-religion guru Barry Lynn draws his line in the sand (hat tip to Michael Medved, who mentioned this on his radio show today): “John Roberts has long been a faithful soldier in the right wing’s war on the Bill of Rights,” said Barry W....
Continue reading "Dafydd: A Pro-Christian Jewish Agnostic Speaks Out" »
July 22, 2005
Senator Chuck Schumer has decided to continue his quest for obstructionism in the John Roberts confirmation process despite the tentative endorsements of centrist Democrats of George Bush's SCOTUS nominee. He plans to pursue the same kind of documents that the Bush administration and former White House counsels of both parties said were inappropriate for release during the aborted Miguel Estrada confirmation: Democrats said yesterday they will demand that the Bush administration hand over internal legal memorandums written by Supreme Court nominee John G. Roberts Jr. while he was a government lawyer -- something the White House has refused to do in the past. Sen. Charles E. Schumer, New York Democrat, said he broached the topic during a meeting yesterday with Judge Roberts, who replied that any decision about his writings as deputy solicitor general would be made by the White House. Republicans on Capitol Hill said the request is not...
Yesterday I wrote that when opponents of the Bush administration couldn't find anything nasty to say about SCOTUS nominee John Roberts, the Los Angeles Times decided to attack his wife and her devout Catholocism instead. That looks positively Churchillian next to the fashion-police anklebiting coming from the Washington Post's style section, in which "reporter" Robin Givhan makes fun of the kids as well as the wife: It has been a long time since so much syrupy nostalgia has been in evidence at the White House. But Tuesday night, when President Bush announced his choice for the next associate justice of the Supreme Court, it was hard not to marvel at the 1950s-style tableau vivant that was John Roberts and his family. There they were -- John, Jane, Josie and Jack -- standing with the president and before the entire country. The nominee was in a sober suit with the expected...
Since the announcement of John Roberts' nomination to the Supreme Court, some pundits have grumbled about the fact that a white male has replaced the nation's first female justice. Of course, pundits get paid to grumble. Unfortunately, we have some sailing in from the waters of obscurity to claim another 15 minutes of fame -- and none less welcome to a Supreme Court confirmation process than the woman who attempted to scuttle one fourteen years ago. Anita Hill writes about her disappointment that George Bush didn't limit his search to minorities and women: As Peter Canellos of the Boston Globe wrote, Roberts' career reads like "a 1950s Boys' Life primer on how to prepare for the Supreme Court." But was John Roberts chosen because he's the best choice for the court or because he may easily be confirmed? And why not choose a woman to replace retiring Justice Sandra Day...
July 24, 2005
Dana Milbank highlights the laughable notion that People For the American Way and Alliance for Justice have not taken an official position on the nomination of John Roberts to the Supreme Court. Titling his vignette "Profiles in Courage," Milbank skewers their silly denials of opposition behind their obvious antagonism towards any Republican nomination: The liberal group People for the American Way has many things to say about President Bush's choice for the Supreme Court, John G. Roberts Jr. It calls his record "disturbing" and says he is "hostile to women's reproductive freedom" and "detrimental" to free speech. It has "serious concerns about his ideology" and says he "falls far short of demonstrating the commitment to fundamental civil and constitutional rights that should be shown by a Supreme Court nominee." So the organization, it is fair to say, has a position in opposition to Roberts? "No, we don't," says Ralph Neas,...
Not long ago, after Supreme Court Justice David Souter supported the seizure of private property in the Kelo decision, a collection of activists decided to take Souter at his word and exercise eminent domain on his house in Weare, New Hampshire in order to build a hotel. Freestar Media wanted to bring the foolishness of Kelo to Souter's doorstep -- literally. And despite Souter's popularity among his fellow New Hampshire citizens, they have surprisingly looked at Freestar's efforts with understanding, if not outright support: People from across the country are joining a campaign to seize Supreme Court Justice David H. Souter's farmhouse to build a luxury hotel, according to the man who suggested it after Souter joined the majority that sided with New London, Conn., in a decision favoring government seizure of private property. "We would act just as these cities have been acting in seizing properties. We would give...
July 25, 2005
The Bush administration made clear that it will not surrender to nor tolerate an attempt to Estradify the nomination of John Roberts to the Supreme Court. Despite calls from a few Democratic Senators this weekend, the White House will not release privileged communications between Roberts and the Reagan and Bush 41 administrations: The refusal sets up a showdown between the White House and Democrats on the Senate Judiciary Committee who have said they want to see some of the documents from the time when Judge Roberts worked for previous Republican administrations. Specifically, Mr. Gonzales said the White House does not want to reveal any documents that are subject to attorney-client privilege. Doing so, he said, would "just chill communications between line attorneys and their superiors within the Department of Justice." Some documents, however, might fall outside the privilege and will be handed over on a "case-by-case" basis, said Mr. Gonzales,...
July 26, 2005
Attorney General Alberto Gonzales will likely create more controversy than the Bush administration wanted for the upcoming confirmation hearings of John Roberts to the Supreme Court. In an interview with the AP, Gonzales raised the possibility that Roe v. Wade could get reversed by a succeeding Supreme Court: The legal right to abortion is settled for lower courts, but the Supreme Court "is not obliged to follow" the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday as the Senate prepared to consider John Roberts' appointment that would put a new vote on the high court. In an interview with The Associated Press, Gonzales said a justice does not have to follow a previous ruling "if you believe it's wrong," a comment suggesting Roberts would not be bound by his past statement that the 1973 decision settled the issue. ... "If you're asking a circuit court judge, like Judge...
July 27, 2005
Have the Democrats settled on an Estradification of Supreme Court nominee John Roberts? It certainly appear so. The White House offered to release 75,000 pages of documents relating to Roberts and his tenure at the Reagan and Bush 41 administrations, but the Democrats don't find that number acceptable: "This in no way satisfies any potential document request," said one Democratic aide, generally reflecting the sentiments of Senate Democrats. "The White House has artfully made it look like they are saying yes to our requests, when they are actually saying no." Democrats on the Senate Judiciary Committee wrote President Bush late yesterday saying they are "disappointed" in the decision to cut off access to "important and informative documents written" by Judge Roberts. Those documents, they said, may be necessary to "evaluate Judge Robert's judicial philosophy and legal reasoning." The White House has refused to release federal Judge Roberts' papers from his...
July 28, 2005
The Miami Herald adds fuel to the hysteria on the Left generated by the nomination of John Roberts to the Supreme Court. The Herald reports that Roberts did significant background work for the Bush campaign in Florida during the recount melee -- and predictably, the Left has jumped all over it: U.S. Supreme Court nominee John Roberts played a broader behind-the-scenes role for the Republican camp in the aftermath of the 2000 election than previously reported -- as legal consultant, lawsuit editor and prep coach for arguments before the nation's highest court, according to the man who drafted him for the job. Ted Cruz, a domestic policy advisor for President Bush and who is now Texas' solicitor general, said Roberts was one of the first names he thought of while he and another attorney drafted the Republican legal dream team of litigation ''lions'' and ''800-pound gorillas,'' which ultimately consisted of...
I don't know which side will feel more relief with this development. Senator Ben Nelson (D-NE), one of the Gang of 14 and a highly-vulnerable red-state Democrat, says that John Roberts convinced him that he will not be an activist jurist after a personal interview earlier today: Supreme Court nominee John Roberts gave assurances he wouldn't be an activist if confirmed, a key Democrat who already was leaning toward supporting him said Thursday. "I don't see anything that's going to be disturbing" in his record, Sen. Ben Nelson told reporters after a 30-minute meeting with President Bush's choice to succeed Sandra Day O'Connor on the high court. Democrats have been pushing to review as many of Roberts' writings as possible, hoping to gain a better understanding of his personal views and the extent to which he might seek to inject them into his judicial rulings. "He said he would not...
July 29, 2005
Six women from the Senate Democratic caucus demanded an answer from John Roberts as to whether he would overturn Roe v. Wade if such a case presented itself, and committed to opposing his nomination if he answered yes or refused to answer. Barbara Boxer led the press conference and said she would find it "impossible" to vote for Roberts: A group of female Democratic senators said yesterday that they will vote against Supreme Court nominee John G. Roberts Jr. unless he vows to uphold abortion rights. ... "Thousands of women a year died in back alleys," Sen. Barbara Boxer, California Democrat, said of the days before Roe v. Wade, the 1973 Supreme Court decision that established abortion rights. "For more than 20 years, Sandra Day O'Connor has been an important vote in upholding Roe v. Wade," she said. "Will Judge Roberts be that same important voice?" Senators Patty Murray, Barbara...
July 30, 2005
Today's Washington Post reviews the issue of the possible membership of John Roberts in the Federalist Society and what it could mean for his Supreme Court Nomination. Mostly, however, Michael Fletcher attempts to explain what the Federalist Society is to a nation whose only knowledge of the group paints it as a murky, subversive, and secretive cabal -- an image the White House inadvertently underscored in the days after announcing Roberts' nomination: Launched 23 years ago by a group of conservative students who felt embattled by liberals on the campuses of some of the nation's most elite law schools, the Federalist Society for Law and Public Policy Studies has grown into one of the nation's most influential legal organizations. The group claims more than 35,000 members, an increasing number of whom work in the highest councils of the federal government. Many Justice Department lawyers, White House attorneys, Supreme Court clerks...
July 31, 2005
Today's Washington Post editorial on John Roberts, "Young Lawyer Roberts", reviews the documentation released so far by the Bush White House on their Supreme Court Nominee -- and finds that (surprise!) Roberts will not transform into the second coming of David Souter. However, beyond branding Roberts as an unabashed conservative, the Post doesn't do much except excerpt passages from long-passed legal debates within the Reagan administration, passages that hardly show him as the reactionary that Democrats desperately want people to believe: While it's dangerous to make judgments based on a quick and necessarily spotty reading of quarter-century-old documents, the picture that emerges from the first wave of papers, including a huge batch unveiled from Judge Roberts's tenure as an adviser to President Ronald Reagan's attorney general, shows a lawyer fully in tune with the staunchly conservative legal views of the administration he was serving -- and indeed, at times to...
Patterico has noticed an astonishing claim by Howard Dean -- no, I mean astonishing even on the Dean Scale -- a few days ago (I can't find the exact date). Here comes Mr. Chairman: The president and his right-wing Supreme Court think it is "okay" to have the government take your house if they feel like putting a hotel where your house is. Let us all ponder this audacious argument. My old dictionary defines "chutzpah" as Lizzie Borden pleading for mercy from the judge on grounds that she's an orphan. But next year's edition will eschew written examples in favor of a photo of Chairman Dean. What Dean has done, of course, is simply to flip the political identity of the justices on the Court; in Dean's world, it was the "right-wing" caucus on the Court -- Stevens, Breyer, Ginsburg, Souter, and Kennedy -- that ruled in favor of the...
August 2, 2005
Something about Republican executive nominations seems to make George Bush's opponents suffer short-term memory loss. First Senator Ted Kennedy and now Washington Post columnist E.J. Dionne forgot about the Constitution regarding two different nominees. In today's Post column, Dionne argues that the Senate Judiciary Committee should transform itself into the secular Inquisition by interrogating John Roberts about his Catholicism during his confirmation hearings: Conservatives have long argued, correctly, that religiously inspired voices have a legitimate place in the public square. Limiting religion to the private sphere relegates it to what the theologian David Tracy has called the "harmless reservations of the spirit." But if religion is to play a serious role in politics, believers have to accept the obligation to explain themselves publicly. That's why it would be helpful if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice. President Bush...
August 3, 2005
This one slid under the electrified fence, wriggled through the bales of razor-wire, and nearly escaped. Fortunately, my elf-eyed wife Sachi caught it in the spotlight at the last moment. After the Supreme Court held in Kelo v. New London that the city of New London could seize non-blighted residential real estate and sell it to a developer for no other "public use" reason than the fact that pharmaceutical giant Pfizer, Inc. would pay more property tax on that land, many of us predicted that it would be open season on private property... and not just residential, either. Why not seize a group of small businesses, throw the owners out with a cut-rate payout, and sell the land to a much larger corporation? Wouldn't the public be better served by a brand, spanking new commercial apartment complex than some dirty old auto-parts stores? Well, I know you'll be shocked, shocked...
The Washington Post reports this morning that a questionnaire and other documents released by the White House provide more answers about the judicial philosophy of John Roberts, revealing his impulse towards judicial restraint and deference to Congress in fashioning law and policy. These revelations should soothe conservative nervousness about the potential for Roberts to become another David Souter, while causing more liberal anguish and opposition: Responding to a question about judicial activism, Roberts said, "When the other branches of government exceed their constitutionally-mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities." ... The new documents disclosed by the archive that reflect Roberts' skeptical views regarding a "fundamental" right to privacy include a lengthy article on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association under the...
August 8, 2005
A federal judge in Seattle, Judge John Coughenour, gave a ludicrously light sentence to a would-be terrorist that attempted to sneak into the US to carry out a bombing plot at Los Angeles International. Even worse than the sentence, however, was Coughenour's accompanying lecture to the Bush administration on the proper role for the judiciary in addressing terrorism -- after Coughenour had just demonstrated his essential cluelessness about its nature. Eric Posner and Adrian Vermeule take apart Coughenour's legal reasoning as well in a Washington Post column this morning: British and American traditions are two-sided: They acknowledge that governments have an obligation to protect people's lives as well as their liberties. No nation preserves liberty atop a stack of its own citizens' corpses, but if one did, it would not be worth defending. The spurious assumption behind both cliches is that whatever package of civil liberties happens to exist at...
August 10, 2005
That Ray Charles song may come to mind for the participants in the meeting yesterday between Senator Ron Wyden and Supreme Court nominee John Roberts. According to Wyden and reported by the New York Times directly from his notes, Roberts responded to a question regarding the Schiavo case by chastising Congress for stipulating rememdies to the federal judiciary through legislation: Terri Schiavo, the brain-damaged Florida woman whose case provoked Congressional action and a national debate over end-of-life care, became an issue on Tuesday in the Supreme Court confirmation of Judge John G. Roberts Jr. when a Democratic senator pressed him about whether lawmakers should have intervened. The senator, Ron Wyden of Oregon, said that Judge Roberts, while not addressing the Schiavo case specifically, made clear he was displeased with Congress's effort to force the federal judiciary to overturn a court order withdrawing her feeding tube. "I asked whether it was...
August 11, 2005
As promised, the Washington Post has updated its story by Dan Balz published yesterday that claimed both CNN and Fox had sold national advertising to NARAL for its fraudulent commercial insinuating that Supreme Court nominee John Roberts supported violence against women. It ran the correction at the top of the original story on its website: Correction to This Article Because of incorrect information from NARAL Pro-Choice America, an Aug. 9 article incorrectly said that a new television ad attacking Judge John G. Roberts Jr. would air on the Fox News Channel. The Post acknowledges that NARAL lied about its ad placement, and one can see the transparent motivation behind the fib. They wanted to show that their ad passed muster across the political spectrum by saying that FNC had also approved the ad for airtime. Their willingness to use lies to combat the Roberts nomination should prove instructive for not...
After getting criticism for its smear job on Supreme Court nominee John Roberts from even pro-choice politicians, NARAL withdrew its advertisement from circulation this evening. Instead of acknowledging their incredible failure in judgment, NARAL preferred to blame everyone else for failing to recognize their genius: After a week of protests by conservatives, an abortion rights group said Thursday night it is withdrawing a television advertisement linking Supreme Court nominee John Roberts to violent anti-abortion activists. "We regret that many people have misconstrued our recent advertisement about Mr. Roberts' record," said Nancy Keenan, president of NARAL Pro-Choice America. "Unfortunately, the debate over that advertisement has become a distraction from the serious discussion we hoped to have with the American public," she said in a letter Thursday to Sen. Arlen Specter (news, bio, voting record), R-Pa., who had urged the group to withdraw the ad. Specter, himself an abortion-rights supporter as well...
August 12, 2005
E.J. Dionne tries to restore sanity to the Left after watching NARAL squander their public credibility on a smear campaign -- and seeing few of his own side object to it. He gives what looks to be the first severe scolding by an unimpeachable voice on the Left to the pro-abortion contingent for the silence that discredited not just NARAL, but also the main force of the opposition to the nomination of John Roberts for the Supreme Court: Fellow liberals, face it: The advertisement created by NARAL, the abortion rights group that opposes John Roberts's nomination to the Supreme Court, is outrageous. It ties Roberts to people who bombed abortion clinics. If this isn't guilt by association, I don't know what is. ... You can consult FactCheck.org, a Web site run by the Annenberg Public Policy Center at the University of Pennsylvania -- not a haven for the right-wing conspiracy...
August 13, 2005
... when the New York Times editorial board takes it to the woodshed. This morning, the Times follows the lead of E.J. Dionne and the Washington Post in condemning NARAL and their attempt to smear Supreme Court nominee John Roberts. They reject NARAL's cancellation of the advertisement as insufficient: Under pressure, Naral Pro-Choice America has withdrawn a cheesy 30-second TV spot unfairly linking Judge John Roberts Jr. with abortion clinic violence. But the episode's sour taste lingers, and it can only make it harder to get senators to pay proper attention during the Supreme Court confirmation process to legitimate concerns about Judge Roberts's approach to issues of personal privacy and reproductive freedom. ... In withdrawing the ad, Naral's president, Nancy Keenan, said that the controversy sparked by the ad had "become a distraction" from the group's effort to educate the public. Lamentably, her statement stopped short of apologizing to Judge...
Trip preparations have kept me busy this morning and mostly away from doing the reading necessary for substantial blogging -- and most of that went into analyzing the 9/11 Commission response from last night. As most of you know, I will live-blog from Justice Sunday II in Nashville, where a number of speakers will rally conservatives to support federal-court nominations of the Bush administration and fight against any filibusters that threaten up-or-down votes in the Senate. JSII is sponsored by the Family Research Council, which has its faith-based interests in mind for this campaign against the filibuster. I am happy to have been invited to this event -- and in the interest of full disclosure, CQ readers should know that JSII has paid for my travel arrangements to and from Nashville, including my air fare and my hotel. As I discussed earlier, without that I would have turned the invitation...
August 14, 2005
In the interest of full disclosure, Lance from Red State Rant picked up the check for lunch before the event today ... Trey Jackson, Joe Carter, and I enjoyed the lunch with Lance from Red State Rant. Lance from Red State Rant assured us that he expects nothing in return for his graciousness and hospitality. I should also mention that Lance from Red State Rant has provided us with transportation while we stay here, and Lance from Red State Rant is one heck of a good host. One has to travel quite a bit before finding folk as terrific as Lance from Red State Rant. So you may hear me mention Lance from Red State Rant often during the live blog, but it isn't because Lance from Red State Rant insisted on it. Trust me....
3:03 PM CT - We're waiting to get the press conference started -- it should have started a couple of moments ago, but we have had a couple of technical difficulties ... 3:07 - The local Fox affiliate is interviewing Joe Carter while we wait for the press conference to start. 3:12 - Tony Perkins from the FRC opens with his statement and introductions. Rebecca St. James and Chuck Colson are probably the two most well-known names here ... 3:14 - Chuck Colson says he can't understand why the New York Times considers this so controversial. All they want to see is justice, not money or power. The message of justice has always been central to Christianity. He said he thanks God that Martin Luther King fought for justice 40 years ago ... 3:17 - Ted Haggard: When churches stop adhering to the Bible and instead rely on individual interpretations,...
No political event can consider itself significant without drawing at least a smattering of protestors. Justice Sunday II drew about twenty of them, mostly quietly marching across the street from the venue. This captured most of them about an hour before the broadcast: There didn't seem to be much enthusiasm for making noise, at least not until we came out with cameras. When I attempted to wish them well and that the heat and humidity wouldn't bother them too much, they responded by yelling, "It's not as hot here in Baghdad, with not enough body armor on!! BRING OUR BOYS HOME!!" No, I'm not kidding. Our hands-down favorite sign on Protest Row showed some hostility towards men with certain health-care issues: Apparently, women can have a choice to have a baby or not, but men can't choose to have an erection. It seems to me that this argument can't stand...
6:02 - The program kicks off with Dr. Jerry Sutton, who enthusiastically and a bit breathlessly introduces Tony Perkins. "God save the United States and this Honorable Court." Perkins starts by expounding on this traditional opening blessing from the Supreme Court, which then "kicked away" at religious liberties. He also talks about the imposition of a "radical social agenda". None of this sounds very surprising. 6:05 - "We do not claim the right to speak for every American. But we do claim the right to speak." 6:08 - Jim Daly says the ACLU would have protested against the notion of God-given rights had it existed in 1776. Well ... 6:09 - Dr. James Dobson appears on tape -- because he's in France? Hmmm. He speaks about judicial tyranny and how it opposes Lincoln's view of government of the people, by the people, and for the people. His two big complaints...
We just wrapped up Judicial Sunday II, and already the reviews have come in. In fact, one review apparently had already been written by Reuters, seeing as how it got posted at 6:48 PM CT, when we had just about hit the half-way mark of the event. The reporter doesn't offer anythihg terribly substantial, except to note that no one specifically endorsed John Roberts -- which was incorrect: Christian conservative leaders used a "Justice Sunday" rally on Sunday to criticize activist judges but chose not to endorse U.S. President George W. Bush's nominee for the Supreme Court, John Roberts. Organizers of the rally, which was co-sponsored by the prominent Christian conservative groups Family Research Center and Focus on the Family, denounced "judicial tyranny" and said they hoped to use the gathering as a "launching pad" to mobilize Christians against judges they say are overriding the Constitution with their decisions. One...
August 15, 2005
I forgot in my posts about Justice Sunday II to thank the people who put the event together for a job well done, especially in the way they took care of the bloggers. Amber, our primary contact on site with the organizers, went the extra mile to make sure we had power, connectivity, and comfort while we blogged away. Charmaine Yoest graciously liaised between the JSII production and the bloggers, and we all enjoyed spending time with her and her wonderful husband, Jack, and their three children. Charmaine, you did a great job and you were a big part of the reason we all enjoyed ourselves so tremendously during our short period there. What could be better than getting together with fellow bloggers? Especially when those bloggers include Joe Carter from Evangelical Outpost, Trey Jackson, Lance McMurray from Red State Rant, Leon at Redstate, Beth Woodfin at Yeah Right Whatever,...
August 16, 2005
The Democrats have decided that discretion truly is the better part of valor. Faced with a bulletproof candidate and reeling from the fallout of the disgraced smear campaign from one of their most important allies, Senate Democrats plan to offer no more than token oppostion to the confirmation of John Roberts as the next Supreme Court justice: In a series of interviews in recent days, more than a dozen Democratic senators and aides who are intimately involved in deliberations about strategy said that they see no evidence that most Democratic senators are prepared to expend political capital in what is widely seen as a futile effort to derail the nomination. Although they expect to subject President Bush's nominee to tough questioning at confirmation hearings next month, members of the minority party said they do not plan to marshal any concerted campaign against Roberts because they have concluded that he is...
Hugh Hewitt points out this hilarious Dana Milbank article in today's Washington Post which may have played a part in the Democratic decision to moonwalk away from obstructionism on John Roberts. Papers uncovered from the Reagan administration shows that Roberts repeatedly advised the White House to keep their distance from the now-disgraced pop star, avoiding historical embarrassments: Tucked in the thousands of pages of documents released yesterday from Roberts's time in the Reagan White House is a collection of memos by the young lawyer about efforts by Michael Jackson's publicists to get presidential flattery for the Gloved One. Without exception, future judge Roberts voted to overturn. "The office of presidential correspondence is not yet an adjunct of Michael Jackson's PR firm," Roberts wrote in a memo to his boss on June 22, 1984, opposing a request by the singer's publicist for a presidential letter praising the star's work against drunken...
Sometimes, you almost have to laugh. But it's a nervous sort of laugh, like when your next-door neighbor launches into a tirade about the interstellar aliens who have taken over all the PTAs in the county. It seems... well, I'll let Jonathan O'Connell of the Fairfield County Weekly have the floor: The U.S. Supreme Court recently found that the [City of New London's] original seizure of private property was constitutional under the principal of eminent domain, and now New London is claiming that the affected homeowners were living on city land for the duration of the lawsuit and owe back rent. It's a new definition of chutzpah: Confiscate land and charge back rent for the years the owners fought confiscation. Not only that, but according to O'Connell, the New London Development Corporation (NLDC) is offering compensation for homeowners at the real-estate appraisals of the year 2000! Since there has been...
August 17, 2005
The AP has taken over where NARAL left off. In their report on John Roberts' upbringing, Tom Coyne and Ashley Heher do everything except paint a white robe and pointy little hat on his head while describing the neighborhood in which his parents raised him: Like many towns across America, the exclusive lakefront community where Supreme Court nominee John G. Roberts Jr. grew up during the racially turbulent 1960s and '70s once banned the sale of homes to nonwhites and Jews. Just three miles from the nearly all-white community of Long Beach, two days of looting and vandalism erupted when Roberts was 15, barely intruding on the Mayberry-like community that was largely insulated from the racial strife of that era. It was here that the 50-year-old Roberts lived from elementary school until he went away to Harvard in 1973, and that decade — as well as the rest of his...
August 19, 2005
A news report on John Roberts and an editorial by Ted Kennedy in today's Washington Post has Bench Memos rightly up in arms today. Both breathlessly use general language and out-of-context snippets to paint Roberts as a women-hostile idealogue who would repeal the 19th Amendment if the Court had the power to do so. In fact, Kennedy's essay relies so much on generic assertions of his own opinion as fact that its incoherence renders it almost moot, even without the Bench Memos rebuttals: Specifically, and contrary to the intent of overwhelming majorities in both the House and the Senate, it appears that Roberts proposed a very narrow and crabbed interpretation of the Voting Rights Act that would essentially eviscerate the meaning of that law. Fortunately, his view did not prevail. But if a nominee to the Supreme Court believes in such a strained and narrow interpretation of such a fundamental...