Judiciary Archives

November 6, 2004

Specter's Folly

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

Bush Picks Gonzalez

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

Frist Takes Hard Line On Specter

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...

Learning To Be A Majority Party

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

With Specter Humbled, 109th Senate May Be Smooth Sailing

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

Supreme Court To Weigh Marijuana, Federalism

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

SCOTUS Harshes California's Mellow

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...

Third Circuit OK's Banning Of Military Recruiters From Colleges

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

More Lawrence Mischief

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

Novak Weighs In On Frist And The Nuclear Option

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...

How The GOP Made The Specter Issue Irrelevant

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

Bush Challenges Democrats To Round Two On Judicial Nominees

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

Next, They Can Force The Times To Wake Up, Too

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

Rue The Day?

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

The Spectre Of Specter Rises Again

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

The Anniversary Of Judicial Dictatorship

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

Dems: We Weren't Obstructionist Enough

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

The Spectre Of Specter Rises Again, And Again

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

Dear Colorado, I Lied. Love, Ken

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...

Jewish Groups Denounce Byrd's Nazi Remarks

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's Inside Politics Covers Byrd's Nazi Remarks

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

Byrd's Incoherent Defense

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

John Cornyn Has Robert Byrd's Number

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

It's Time For Action, Senator McConnell

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...

Harry's Hysterics

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

Democrats Get More Hysterical On Judiciary

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 chambers longest-serving member, used the Ides of March anniversary to invoke Julius Caesars murder and told The Hill that freedom of speech in the Senate is about to be assassinated. Lets dont 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

Boxer Tells The Truth (Accidentally)

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

Robed Pot Calls Kettle Black?

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...

PFAW Finds Republican Against Filibusters ... In Union That Supported Kerry

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

McCain Sells Out Again, This Time On Judiciary

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 whats 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...

Not. One. Dime.

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 Net Effect Of Dithering

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 Reids (D-Nev.) public-relations war room. The GOPs talks follow a meeting last week in which aides warned Bob Stevenson, Senate Majority Leader Bill Frists (R-Tenn.) communications director, that something needs to be done to win back lost ground, a participant said. I think theres a realization that this particular [Democratic] effort has to be countered and theyre in full-scale attack mode, a GOP aide...

April 16, 2005

Money Won't Reform GOP Leadership

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

NYT Continues Its Offensive On GOP And Judicial Nominations

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...

Judiciary -- The Harm In Waiting

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

The Politics Of Impatience

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

Not. One. Dime. Continued

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

Frist Ready To Pull The Trigger?

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 Price Of Dithering, Part II

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

Commitee Approves Owens, Brown; Filibuster Fight (Almost) Ready

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

See What A Vote Can Do?

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

Snatching Defeat From The Jaws Of Victory, Part 12a

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

Judicial Nominee Refuses To Remain Silenced

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...

Frist: No Deal Without Confirming Current Nominees

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

Did Yesterday's Report On Brown's Speech Do Her Justice?

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

Frist Stands Firm, Sets No Timetable

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

Janice Rogers Brown, In Her Own Words

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: GOP Needs A Spine

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...

The Smear Continues On Brown

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

Reid Wavering On Filibuster?

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

More Projection From The Democrats

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...

Liberal Editor Supports Janice Rogers Brown

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

Doing The GOP's Work On Brown

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

Owen Will Bust The Filibuster (Or Will She?)

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...

Leahy's Sympathy Only Extends To Leftists

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

Did Ken Starr Bash The Byrd Option?

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

Tail-Gunner Harry

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...

Frist: Let The Debate (And Vote) Begin

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

Reid's Smear Raises Eyebrows At DoJ

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

NARAL Raids On Private Financial Data

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...

New Offer: Throw Less People Under The Bus

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

The Byrd Option Starts Today

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...

Not One Dime: Have You Made The Call Today?

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...

Dems Start Retribution Early

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 Reids actions speak volumes. It would appear the Democrats threat to shut down the Senate...

May 19, 2005

'Not One Dime' On MS-NBC

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

The Byrd Option Is About To Take Wing

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 --...

Santorum Apologizes For Nazi Analogy

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

Janice Rogers Brown vs Ted Kennedy On Free Speech

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

George Allen Predicts Byrd Option Tomorrow

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...

Why Democrats Are The Radicals On Filibustering

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...

Not One Dime: Down To The Wire

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...

Rassmussen: 57% Support Byrd Option

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...

Deal Reached? (Live Blog)

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...

Deconstructing The Deal

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

Two Editorials, Two Directions, And A Significant Abstention

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:...

Welcome To Versailles, Circa 1921

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...

Did Bush Win In Judicial Deal?

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 Vanguard Of The New Comedy Comity

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

NYT Hasn't Read The Constitution

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...

Priscilla Owen Confirmed

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

Not One Dime: Non-Nuclear Winter

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

Not One Dime: Logo Contest

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

Doing The Math On The Judicial Compromise

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...

How Democrats Define Comity

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

How The Seven Dwarves Have Impacted The Presidential Race

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

Not One Dime Goes National

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

Not One Dime: The NRSC Bleg

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

SCOTUS Harshes Everyone's Mellow

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 dont 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 drugs 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

Irrationality The Norm From The Left On Janice Rogers Brown

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

Last Of The Guaranteed Trio Gets Confirmed

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

Not One Dime: The New Democratic Strategy

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

Apologizing For The Filibuster

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

LA Times Points Out Lynching-Apology Hypocrisy

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

Addressing The Symptom And Not The Disease

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...

We're From The Government -- We're Here To Move You

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

A Suggested Site For New York's Football Stadium

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...

Judicial Activism: Not A New Worry

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

Class-Action Fraud Alleged At Legal Firm

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

SCOTUS: Decalogue For We But Not For Thee

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

The Mark Twain Option

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

Ardaiz Considered For Federal Appellate Bench (Updated)

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...

Pelosi Buries Property Rights Under A Mountain Of Ignorance

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

Sandra Day O'Connor Says Goodbye

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....

Dafydd: The Garza Trip

(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

Democrats Go On Offensive, In All Senses Of The Word

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

The Leftist View Of SCOTUS: More Politicians, Please

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

Schumer: Go To The Mattresses No Matter Who It Is

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 Presidents 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...

Democrats: We Get To Define 'Consultation'

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

Dafydd: Hip Deep in the Big Muddy of SDP

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

Reid To Bush: Pick An Activist, Any Activist

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 Breakfast Club Wants A Sequel

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

Strib Still Confuses Judiciary With Legislature

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

The Group Attack On Justices

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.

Bush To Announce End To Plame Debate At 9 PM EDT (Updated!)

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: It's John Roberts

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

Editorial Response To Roberts Nomination: Stunned And Cautious

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,...

The Timing Of Roberts' Nomination

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.

The Largest Battle Of The Roberts Confirmation War

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...

Joyfulness On Roberts Nomination Not Universal On The Right

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 dont 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...

Democrats Signal Filibuster Unlikely

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

Maybe He Just Knows The Secret Handshake

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....

Nothing On Roberts? Go For The Wife

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...

Dafydd: A Pro-Christian Jewish Agnostic Speaks Out

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 wings war on the Bill of Rights, said Barry W....

Continue reading "Dafydd: A Pro-Christian Jewish Agnostic Speaks Out" »

July 22, 2005

SchumerTo Use Estradification Ploy

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...

Let Me Revise -- Attack The Wife And The Kids

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...

Returning From Obscurity To Issue Inanities

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

Alliance Of People For Dishonesty

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,...

Souter's Neighbors Not Entirely Unsympathetic To New Hotel

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

Roberts Papers Will Not Get Extorted

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

Roe Open For Reversal: AG Gonzales

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

75,000 Isn't Enough

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 Latest Roberts Hysteria

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...

Roberts No Activist, Says Senate Dem

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

Senate Democrats Demand Abortion Litmus Test

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

Blowing The Federalist Society Question

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

Roberts Papers Reveal The Conservative Within

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...

Dafydd: Flipper the Duck

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

Dionne Tosses Out The Constitution

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

Dafydd: Imminent Domain

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...

Questionnaire Provides More Answers On Roberts

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

Judicial Absurdities Meet Common Sense

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

What'd I Say? Don't Ask The New York Times

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

WaPo Correction Names NARAL For False Info On Fox

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...

NARAL Retreats, Blames ... Pretty Much Everyone

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: Stop The Insanity

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

You Know A Leftist Group Has Jumped The Shark ...

... 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...

Justice Sunday II: My Priorities

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

Justice Sunday II: More Disclosure ...

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....

JSII Press Conference

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,...

JSII: The Protestors

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...

JSII Live Blog

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...

JSII: The Press Coverage, Round 1

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

JSII: Belated Thanks

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

Those Who Fight And Run Away ...

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...

John Roberts To Michael Jackson: Beat It

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...

Dafydd: Bride of Imminent Domain

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 Next Roberts Smear

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

Dogs And Cats, Living Together

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...

Another AP Smear On Roberts

The AP attempts to assist the Left in their next big smear against John Roberts as a male chauvinist pig. It started this morning with the Washington Post's ridiculous "analysis" of Roberts' record of commentary on comparable worth, a long-discredited line of thought that the Post misrepresented as "a curb on workplace discrimination against women" when in fact it does nothing to change hiring practices, but instead puts government in charge of setting wages. Now Hope Yen has found another snippet out of a Roberts memo that they will claim attacks Sandra Day O'Connor, who Democratic Senators recently discovered as an unrecognized saint of modern jurisprudence: As a lawyer in the Reagan White House, John Roberts scoffed at the notion of elevating Supreme Court Justice Sandra Day O'Connor to chief justice as a way to close a political gender gap, calling it a "crass political consideration." ... "Many of the...

The Coming Smear In Box 31?

As part of the Hugh Hewitt effort to review the papers of John Roberts from the Reagan Library, Radioblogger assigned me Box 31 - Laws of War. Hugh and Duane sent me the PDF file for this set of records containing the thoughts and opinions of John Roberts on this topic during the Reagan administration, looking for potential issues that might come up in Roberts' confirmation. At first glance, the file appeared to have little substance in it at all. Most of the records consisted of lists of meeting attendees and cover sheets. Only one memo contained anything of note -- but considering the current war on terror, I predict that this one file may well wind up getting twisted into an argument against Roberts. On May 8, 1985, John Roberts prepared a memo for Richard Hauser for a response to a NATO request about US intentions for proposed changes...

August 20, 2005

Dafydd: the Gentle Spear of Box 9

As part of Hugh Hewitt's quixotic quest to review the trillions of pages of infodump on John Roberts, I was assigned Box 9 -- the Barry Box. (Like the Captain, my assignment came not from Sir Hugh hughmself but from his scribe and factotum and all-around varlet, Duane the Radioblogger.) This portion of Box 9 comprises a long and tedious negotiation between the D.C. Council and Mayor Marion Barry, jr. on the one side and Congress, the Justice Department, and the White House Counsel's office on the other over what was to be done about the District of Columbia Self Government and Governmental Reorganization Act of 1983 -- which Assistant Attorney General Robert A. McConnell injudiciously kept referring to as "the Home Rule Act," conjuring up visions of the British Raj finally ceding authority to its various colonies in Africa and Inja, don'tcha know. Rawther. After the Act was enacted...

August 21, 2005

Box O' Roberts #8: Will DC Home Rule Trip Up Roberts?

My next assignment from the Hugh Hewitt/Radioblogger effort to parse the document dump from the Reagan Library gives us a look at the arcane but politically potent issue of home rule for the District of Columbia. One could hardly select a less "sexy" topic for research regarding the confirmation of John Roberts to the Supreme Court, but given the proximity and the sensitivity of DC home rule to the Senate, it could provide for some inside-the-beltway debate in the upcoming hearings. The issue of home rule has had its partisan overtones, given the overwhelming Democratic advantage in DC, and that might influence a Senator or two to carefully peruse Roberts' writings on the subject. My portion of Box 8 contains some provocation for debate, although nothing terribly explosive. The Reagan administration asked Roberts to review issues surrounding the Chadha decision by the Supreme Court, negating the one-house legislative veto on...

August 25, 2005

Roberts Opposition Gets Desperate For Issues

As the date for the Judiciary Committee hearings on the nomination of John Roberts to the Supreme Court draws near, the opposition to his confirmation gets stranger and stranger. Having exhausted the Reagan-era data and found nothing objectionable, Democrats have started skipping any pretense of rationality, opting instead for nothing but empty scare tactics. Ralph Neas and Chuck Schumer took center stage yesterday in the Roberts Follies to once again demonstrate how little substance either employs in their obstructionist agenda. First, the People For the American Way (PFAW) announcement from Neas opposing Roverts got delivered as if the nation had held its breath wondering whether PFAW might support Roberts in the end. Neas' performance had me laughing while I listened to it on the radio, and I imagine it had greater comedic value live and in person. He told the gathered press that he wanted to be able to support...

August 26, 2005

What Day Will The Washington Post Announce Its Opposition?

The Washington Post resumes its double-barrelled shotgun approach to the nomination of John Roberts on page A02 of the paper today, running two reports critical of the Supreme Court nominee. The first, by Jim VandeHei, notes that the gay community has shrugged off the pro bono work done by Roberts to announce their opposition to his confirmation. The announcement comes with the hysteria thus far associated with almost all of the opposition to Roberts (emphases mine): "For his entire adult life, John Roberts has been a disciple of and promoted a political and legal ideology that is antithetical to an America that embraces all, including lesbian, gay, bisexual and transgender people," Matt Foreman, executive director of the National Gay and Lesbian Task Force, said in a statement. "I have no doubt he's an accomplished lawyer and an affable dinner companion, but that doesn't make him any less a mortal danger...

August 30, 2005

Roberts -- Conservative But Not Crazy

Two news articles report on the release of additional material from the career of John Roberts, giving more ammunition to the opponents of his nomination to the Supreme Court while not providing any revelations or bomb bursts. Curiously, the pair continue the pattern of seeing more balanced coverage from the New York Times than the almost-hysterical tone provided on Roberts by the Washington Post. For its part, the New York Times sticks to the relevant issues rather than rhetorical flourishes, and provides evidence both of Roberts' conservative leanings and common-sense approach to political extremism. Roberts expressed concern over the increasing police power that government agencies had taken, seeing this as an ever-increasing encroachment on individual rights. He advised the Reagan team that federal police powers should instead remain limited to the Justice and Treasury departments: Mr. Roberts's advice was in a May 16, 1984, memorandum to the White House counsel,...

September 3, 2005

William Rehnquist Dies At Home

Chief Justice of the Supreme Court William Rehnquist passed away tonight at his Virginia home (via e-mail from King at SCSU Scholars): Chief Justice William H. Rehnquist died Saturday evening at his home in suburban Virginia, said Supreme Court spokeswoman Kathy Arberg. A statement from the spokeswoman said he was surrounded by his three children when he died in Arlington. "The Chief Justice battled thyroid cancer since being diagnosed last October and continued to perform his dues on the court until a precipitous decline in his health the last couple of days," she said. Anyone following his activities for the past several months will not find themselves surprised by his passing. He showed no inclination to retire after 34 years on the Court, the final 19 as Chief Justice. His illness made retirement rather pointless, which he apparently sensed; what kind of retirement would he have had? Instead, he tried...

September 5, 2005

Roberts Gets Chief Justice Nod, Delay In Hearings

In a bold but strategically sound move, George Bush nominated John Roberts as the new Chief Justice of the Supreme Court just ahead of his confirmation hearings to the bench itself. This additional nomination prompted an immediate but short delay for those hearings, most likely in respect for the passing and funeral of the late Chief Justice, William Rehnquist: President George W. Bush nominated appeals court judge John Roberts on Monday to replace the late William Rehnquist as U.S. chief justice of the Supreme Court. "Judge Roberts has earned the nation's confidence, and I'm pleased to announce that I will nominate him to serve as the 17th chief justice of the Supreme Court," Bush said in the Oval Office with Roberts at his side. Bush urged the Senate to move quickly to confirm the 50-year-old conservative in time for the October 3 start of the new term of the Supreme...

Janice Rogers Brown For Supreme Court

I will not predict who George Bush will nominate to fill the open seat on the Supreme Court, now that he has selected John Roberts to succeed the late William Rehnquist as Chief Justice. He has many fine jurists from which to choose, including Michael Luttig, Michael McConnell, and Edith Hollan Jones, the latter of which I strongly suspect will get onto Bush's short list this time around. However, if I had a voice at the White House on this selection, I would suggest Justice Janice Rogers Brown. Janice Rogers Brown has just taken her place on the DC Circuit court, the same appellate bench from which Roberts served prior to his nomination. However, unlike Roberts, she served for several years on a state Supreme Court, that of the nation's most populous state, California. Her background gives her near-impeccable conservative status while presenting enough flexibility for libertarian leanings. Rather than...

September 6, 2005

Next Battlefield, The O'Connor Replacement (Part Two)

It may sound odd to discuss how George Bush plans on replacing retiring Supreme Court Justice Sandra Day O'Connor. We all watched him announce O'Connor's replacement almost two months ago, John Roberts. The President's transition of Roberts to the Rehnquist seat, however, puts the political debate on how best to honor O'Connor's legacy best back on the front burner. As I note above, that debate will no longer involve Roberts. The decision to remove Roberts from O'Connor's seat accomplishes that, as well as opens the door for O'Connor to rejoin the court temporarily while Bush and the Senate work through the process of nominating and confirming her successor. No one has heard whether O'Connor actually plans on honoring that offer, by the way, although Chuck Schumer and the New York Times certainly hope for it. One of the Washington Post reports on the Roberts shift gives an insight into what...

Roberts Promotion Gets Media Results

The largely-unexpected move to have John Roberts replace William Rehnquist rather than Sandra Day O'Connor raised a few eyebrows this weekend. George Bush had an opportunity to elevate one of the sitting justices on the Supreme Court, and the debate seemed to focus on whether he would pick Antonin Scalia or get really bold and choose Clarence Thomas as the first African-American Chief Justice. Instead of leaving that pot to boil, Bush acted quickly to shift Roberts to Rehnquist's slot, ending the speculation and reducing the number of confirmation hearings required to return the court to normalcy. For such a solid and untouchable nominee, Roberts has undergone considerable and mostly hysterical scrutiny in the media. His hearings promised to provide plenty of fireworks before his elevation to Chief Justice, and some wondered if the move wouldn't allow moderate Democrats an opportunity to withdraw their previously-stated support for his confirmation. However,...

September 8, 2005

Roberts Too Successful For Post

Richard Cohen at the Washington Post writes a column that should embarrass him to have under his byline at some later date. He tries in a weak way to argue against the confirmation of Roberts by pointing out his many successes -- and then wishes that Bush had nominated someone with a demonstrated track record of incompetence instead. It takes failure, in Cohen's estimation, to really know the people: I sometimes think the best thing that ever happened to me was, at the time, the worst: I flunked out of college. I did so for the usual reasons -- painfully bored with school and distracted by life itself -- and so I went to work for an insurance company while I plowed ahead at night school. From there I went into the Army, emerging with a storehouse of anecdotes. In retrospect, I learned more by failing than I ever would...

Girding For Battle

Be sure to read John Hinderaker's excellent column in today's Daily Standard, "Preparing for World War III". When John and I debated the various possibilities for Bush to consider for Chief Justice, neither one of us contemplated the elevation of Roberts to the position. John notes that this changes the dynamic considerably, improving Roberts' confirmation chances to a near-lock while deferring a very ugly battle to the next nominee: Substituting Roberts for O'Connor would have been a significant upgrade, from a conservative point of view. Replacing Rehnquist with Roberts, on the other hand, is good to the extent that it likely represents another 30 years of conservative service on the court, but it will not effect a short-term change in the balance of power. In that sense, the key appointment has always been O'Connor's successor. And for that appointment, Roberts had turned out to be an inspired choice. The Senate...

September 10, 2005

Gonzalez Charm Offensive Begins

It looks like the White House wants to push Attorney General Alberto Gonzales as the likely replacement for Sandra Day O'Connor on the Supreme Court. Today's Washington Post analysis clearly indicates that a significant effort has begun to support Gonzalez' credentials as a conservative despite the fears of the GOP base, which unexpectedly and firmly rejected Gonzalez: Supporters of Attorney General Alberto R. Gonzales have launched a campaign to rebut criticism that he is not reliably conservative enough to serve on the Supreme Court, a move likely to intensify a rift within Republican circles over one of President Bush's closest confidants. The group of former Gonzales aides and other Republicans still in the Bush administration -- most of whom are close to top White House officials -- are coordinating with one another, sharpening common lines of argument, then circulating these points on Capitol Hill, in conservative circles and with reporters,...

September 11, 2005

WaPo Gives Roberts A More Balanced Perspective

A funny thing happened after Bush shifted John Roberts to William Rehnquist's seat rather than Sandra Day O'Connor's after the death of the Chief Justice: the Washington Post suddenly began to treat Roberts more rationally. After early stories insinuating that Roberts was a closet racist, the Post now publishes more balanced and neutral reporting on Roberts' background. Today's Post survey of Roberts leading up to his confirmation hearings this week actually shows Roberts in a mostly positive light, as a man willing to go out of his way to connect to the nuts and bolts of the cases he argued: "It's helpful for someone who's going to be a judge to have dealt with ordinary people," says Peter B. Edelman, a Georgetown law professor and former Clinton administration official who opposes Roberts's nomination. "Institutionally, it's better for the court to have as many people with real-life experience as possible." Then...

September 12, 2005

Brownstein Tries Humor At Joke Newspaper

Ronald Brownstein must have intended his latest political analysis for The Onion, the satirical newspaper best known for its interviews with the 9/11 hijackers from their new residences in Hell. Instead, he found it published by his usual joke newspaper, the Los Angeles Times, which buried a news report of an explicit al-Qaeda threat in its back pages this weekend. Brownstein indulges in wishful thinking from the Left by spending an entire article detailing why he thinks Bush might consider appointing a Democrat to the Supreme Court: A Bush gesture to Democrats "would be seen as panic or that he is willing to offer us up," says veteran conservative strategist Jeff Bell. But Bush may find such discontent an acceptable cost for reaching out beyond his core coalition to independent and moderate voters who have soured on him so much in recent surveys that independent pollster John Zogby says...

A Fine Performance Amid The Bloviating

Lifes but a walking shadow, a poor player, That struts and frets upon the stage, And then is heard no more. It is a tale Told by an idiot, full of sound and fury, Signifying nothing. When Shakespeare wrote this passage of Macbeth, he assigned it to the eponymous Scotsman mulling over his rebellion. He could well have written it about the opening of a Congressional committee hearing, where the gathered politicians each have a chance to pontificate for endless hours, or at least what seem like endless hours, talking about almost everything that comes to mind. Unfortunately, most of it has no bearing on the actual matter at hand. Today's opening to the Senate Judiciary Committee hearing on John Roberts' confirmation to the Supreme Court provided an excellent example. Almost from beginning to end, the bloviating reminded listeners why the Senate has produced so few Presidents but so many...

September 13, 2005

WaPo Analysis Misses Roberts' Eloquence

Dan Balz at the Washington Post provides an uneven analysis of the first day of the Roberts confirmation hearing. While he correctly notes that the Democrats turned down the heat for the start, he fails to note at all Roberts' eloquence and charm. He also puts too much stock in the moderate tone taken by most Democrats for their opening remarks: The first day of confirmation hearings for Judge John G. Roberts Jr. to become the 17th chief justice of the United States proved to be a tepid opening to what once was billed as a battle of monumental proportions between left and right. There may yet be some of the fireworks that were predicted when the first of two Supreme Court vacancies opened up two months ago -- particularly this morning, when members of the Senate Judiciary Committee begin to question Roberts. But with Roberts's confirmation seemingly assured, some...

September 14, 2005

Day 2: Men Behaving Badly

The Democrats got their chances yesterday to play hardball with John Roberts during his confirmation hearing at the Judiciary Committee, but mostly got shelled as Roberts hit their curveballs out of the park. The Republicans mostly tossed change-ups, although Arlen Specter unexpectedly threw heat on Roe v Wade. Two of the most partisan among them got called for balks on a number of occasions by commitee chair Arlen Specter, who had to scold Ted Kennedy and Joe Biden for cutting off Roberts' answers. When Biden started whining about Roberts eating up his time with detailed answers, Specter rather forcefully reminded Biden that there was no crying in baseball. Can we finally dispense with the baseball analogies now? Yesterday's performance by John Roberts continued to show his mastery of the panel-interrogation form that he knows so well from his 39 appearances at the Supreme Court. As I watched a significant portion...

I Pledge Allegiance To The Flag And So Become Unconstitutional

A federal judge ruled today that requiring schoolchildren to recite the Pledge of Allegiance violates the Constitution, a decision that comes in an odd and coincidental juxtaposition with the confirmation hearing of Supreme Court nominee John Roberts. US District Court Judge Lawrence Karlton sided with activist Michael Newdow, whom the Supreme Court decided lacked standing to bring this issue before, by claiming his case remained precedential: A federal judge declared the reciting of the Pledge of Allegiance in public schools unconstitutional Wednesday, a decision that could put the divisive issue on track for another round of Supreme Court arguments. The case was brought by the same atheist whose previous battle against the words "under God" was rejected last year by the Supreme Court on procedural grounds. U.S. District Judge Lawrence Karlton ruled that the pledge's reference to one nation "under God" violates school children's right to be "free from a...

September 15, 2005

Day 3: The Democrats Read Their Reviews

Yesterday's grilling of Supreme Court nominee John Roberts continued the contentiousness of the previous day, when most of the first round of questioning took place. However, for the most part the panel's more rabid Democrats scaled back their open derision for Roberts and allowed him time to answer questions in between their monologues. That doesn't mean that Democrats got more satisfaction from the answers, as the Washington Post notes: Democrats' frustration boiled over several times during the eight hours of questioning, as Roberts repeatedly declined to discuss his personal or judicial views on matters that he said could come before the court someday. Senators implored him to speak from the heart, but Roberts told them time and again that he would be guided by "the rule of law." "We are rolling the dice with you, Judge," Sen. Joseph R. Biden Jr. (D-Del.) said. "It's kind of interesting, this Kabuki dance...

Day 3 Analysis: Who Is That Masked Man?

One of the ethical mandates that any nominee to a judicial appointment must meet is to answer questions in such a way as to avoid any appearance of making commitments to rule in a certain way on any one issue. That preserves the independence of the judiciary as well as the individual jurists, who must approach their cases free of political encumbrances. The founders gave lifetime appointments to federal jurists with this latitude and political independence in mind; otherwise, the bench would fill up with political hacks, and the positions then would require votes and preset terms. The fact that we have calls for that now indeed shows that our politicians have succeeded in their attempts to pervert the process by demanding answers to such questions and openly asking about partisan leanings during hearings. Have they succeeded in transforming Roberts into a known political quantity? Not according to these competing...

Dafydd: One Quick Roberts Prediction

One fast prediction, and I'll update this post when the vote occurs to either take a bow or eat my words! I predict the vote in the Senate Judiciary Committee is going to end up with all in favor, Republican and Democrat alike, with only one dissent: Ted Kennedy. Well, what do you all think? UPDATE later that same day: I think I need an explanatory update even before the vote. I don't predict they'll vote for Roberts because he's won them over; my prediction is that they see the mene mene on the wall -- and they'll vote for him in order to give themselves some credibility for mounting a filibuster against the O'Connor replacement. I base the prediction on the fact that both Biden and Schumer have already given interviews in which they praised Roberts to the skies and said he was about the best nominee of either...

September 16, 2005

Confirmation Analysis: A Boomerang Borking

Now that the smoke has cleared on what many forecast as the Mother of All Political Battles -- the Judiciary Committee confirmation hearings on the nomination of John Roberts to the Supreme Court -- we can see exactly who won and who lost. Despite their initial misgivings about taking Roberts head-on, the Democrats decided to go all out in an attempt to Bork Roberts as a civil-rights Neanderthal with no heart ... and they failed miserably. For evidence of this, one need look no further than the editorial pages of the Washington Post, which notes that Roberts not only kept his cool under fire, but provided rebuttal after rebuttal to the out-of-context attacks on the Democrats: IN HIS TESTIMONY before the Senate Judiciary Committee over the past two days, Judge John G. Roberts Jr. shed important light on his views and likely approach if confirmed as the Supreme Court's chief...

September 18, 2005

Look Who Endorsed John Roberts!

After a strange campaign on its news pages against the nomination of John Roberts, the Washington Post editorial board issued a strong endorsement of his confirmation as Chief Justice of the Supreme Court today. JOHN G. ROBERTS JR. should be confirmed as chief justice of the United States. He is overwhelmingly well-qualified, possesses an unusually keen legal mind and practices a collegiality of the type an effective chief justice must have. He shows every sign of commitment to restraint and impartiality. Nominees of comparable quality have, after rigorous hearings, been confirmed nearly unanimously. We hope Judge Roberts will similarly be approved by a large bipartisan vote. Why did this come as such a surprise? Perhaps because of the history of the paper's coverage of John Roberts during most of the pre-hearing period. Instead of focusing on his record as a jurist, where he has written over fifty opinions in two...

September 20, 2005

FBI Porn Squad: The Gonzales-For-SCOTUS Trojan Horse?

Today's Washington Post reports on a new priority given to the FBI by the Department of Justice and its chief, Attorney General Alberto Gonzales. Instead of counterterrorism, the FBI will now focus on adult porn as a threat to families, using its resources to pick cases that could meet the community-standards threshold of obscenity for prosecution: Early last month, the bureau's Washington Field Office began recruiting for a new anti-obscenity squad. Attached to the job posting was a July 29 Electronic Communication from FBI headquarters to all 56 field offices, describing the initiative as "one of the top priorities" of Attorney General Alberto R. Gonzales and, by extension, of "the Director." That would be FBI Director Robert S. Mueller III. ... Federal obscenity prosecutions, which have been out of style since Attorney General Edwin Meese III in the Reagan administration made pornography a signature issue in the 1980s, do "encounter...

Reid To Senate: Partisanship Wins Over Substance

Confirming that the Senate Democratic leadership plans to offer nothing but knee-jerk opposition to judicial appointments from the Bush administration, Harry Reid today announced that he will vote to oppose the confirmation of John Roberts to the Supreme Court: Senate Democratic leader Harry Reid announced his opposition to Chief Justice-nominee John Roberts on Tuesday, voicing doubts about Roberts' commitment to civil rights and accusing the Bush administration of stonewalling requests for documents that might shed light on his views. ... "I have reluctantly concluded that this nominee has not satisfied the high burden that would justify my voting for his confirmation based on the current record," the Nevada Democrat said on the Senate floor. Reid did signal that he will oppose any effort to filibuster the confirmation or to delay the vote, an improvement over the past two sessions of Congress but still far short of the recognition given Clinton's...

September 21, 2005

Signifying Nothing

My recap of the Senate Judiciary Committee hearings on the confirmation of John Roberts appears in the Daily Standard, "The Sound And The Fury". It points out that the Democrats have reduced their credibility on judicial appointments to almost nil, thanks to a clueless effort to outargue one of the foremost legal scholars during the nationally televised debate: FROM THE FIRST DAY, the strategy of the opposition was clear: get Roberts to refuse to answer questions about specific cases and paint him as unresponsive. Unfortunately for the Democrats, Roberts had prepared several candidates for hearings such as these. He refused to say how he would rule when presented with specific cases and hypotheticals based on issues that will probably come before the Court--but each time he explained in detail why he could not answer, and then instead talked about the process he would use to approach cases such as those...

Dividing The Dems

In a bit of a surprise, Senator Pat Leahy announced his qualified support for the confirmation of John Roberts to the Supreme Court. Not only does Leahy join a handful of his caucus members for the final vote, but his committee vote ensures some bipartisanship on Judiciary that has recently lacked any at all: Chief Justice-nominee John Roberts, his confirmation secure, picked up support from fractured Senate Democrats on Wednesday as President Bush met lawmakers to discuss a second vacancy on the Supreme Court. The Senate Judiciary Committee's senior Democrat, Patrick Leahy of Vermont, announced his endorsement shortly after leaving the White House. That guaranteed bipartisan backing for Roberts in Thursday's scheduled vote by the committee. But Senate Democratic leader Harry Reid, liberal stalwarts Barbara Boxer of California and Edward Kennedy of Massachusetts, former presidential candidate John Kerry of Massachusetts and New Jersey Sens. Jon Corzine and Frank Lautenberg all...

September 22, 2005

Feinstein Goes No On Roberts

Dianne Feinstein will vote against confirming John Roberts to the Supreme Court in today's Judiciary Committee tally and again in the full Senate, she announced. Roberts failed to convince her that he would meet her abortion-rights litmus test and therefore lost her support: Feinstein, the committee's only woman, said her vote was decided after Roberts refused to fully answer her and other Democrats' questions in his confirmation hearing last week. "I knew as little about what Judge Roberts really thought about issues after the hearings as I did before the hearing. This makes it very hard for me," said Feinstein, an abortion rights supporter. "I cannot in good conscious cast a 'yea' vote. I will cast a 'no' vote," she said. That may play well in California, but it underscores that the Democrats play politics with the Supreme Court, and not the GOP. The President did not nominate a litmus-test...

September 27, 2005

Roberts -- In With A Whimper

The massive effort to derail the John Roberts nomination will end, in the words of TS Eliot, not with a bang but a whimper on Thursday. The New York Times reports that debate opened in the full Senate yesterday and that the Democrats did not attempt to fight cloture, allowing Bill Frist and the GOP to schedule the vote for 11:30 AM on the 29th, as predicted last week: There were no surprises as the floor deliberations on Judge Roberts began, and Republicans and Democrats alike agreed that a vote should come no later than Thursday. Lawmakers restated their reasoning on the nomination and emphasized the import and unique opportunity of voting on the lifetime appointment of a chief justice. ... With Republicans solidly backing Judge Roberts and Democrats divided, he has easily surpassed the threshold for confirmation. And Senator Harry Reid of Nevada, the Democratic leader, on Monday eliminated...

September 28, 2005

A Battle Only Postponed

ersailWhen fourteen Senators gathered to congratulate themselves on hijacking the leadership of the upper chamber on judicial confirmations last spring, they proclaimed that they had, in Robert Byrd's words, "saved the Republic" by avoiding a rule change on filibusters -- a parliamentary manuever for which Byrd himself changed rules on four separate occasions. Despite the opportunity to get the matter resolved by the full Senate while working on lower-level judicial appointments, the Gang of 14 instead imposed the Memorandum of Understanding on both sides, with the seven GOP Senators essentially ceding some legitimacy to filibustering judicial nominees on ideological bases. That will now come back to haunt them, as the Democrats get ready to crank up another filibuster regardless, it seems, of who the President nominates to replace Sandra Day O'Connor. As I predicted, the vaunted MoU turned out to be nothing more than a Versailles Treaty, a simple postponement...

September 29, 2005

Now The Real Swearing Begins

John Roberts won confirmation to the Supreme Court as Chief Justice on a strong but hardly unanimous vote in the Senate, 78-22. Half of the Senate Democrats voted against his confirmation, including the arguable front-runner for the 2008, Hillary Clinton; half of them voted to confirm him, including most of the red-state Democrats like Robert Byrd (WV), Bill Nelson (FL), Ben Nelson (NE), and Kent Conrad (ND). The politics finally ended when Roberts went to the White House to take the oath of office in time for his first official day on the job next Monday. However, that only starts the swearing, as both sides prepare for a nastier battle the second time around: "The pivotal appointment is the next one," said Sen. Dianne Feinstein (D-Calif.), who opposed Roberts. "The comparison obviously is with O'Connor," she said, in contrast to the reliably conservative Rehnquist. Asked how much she feared that...

October 2, 2005

The Female John Roberts?

While various news organizations continue reporting that President Bush still hasn't made his decision on a replacement for Sandra Day O'Connor on the Supreme Court, the speculation on the candidates keeps widening. A newer name gets added today by MS-NBC, a potential stealth candidate that may appeal to the White House as a female version of John Roberts. Maureen Mahoney, who testified on behalf of Roberts during his confirmation hearing at the Judiciary Committee hearing, might rise to the top of Bush's list even as she flies mostly below the media radar: There continues to be talk in legal circles that he could pick one of three longtime Bush loyalists: White House counsel Harriet Miers, the first women president of the Texas State Bar and Bushs former personal attorney; Attorney General Alberto Gonzales, Bushs longtime friend, who would be the first Hispanic on the court; and corporate lawyer Larry Thompson,...

October 3, 2005

Harriet Miers Gets The Nod

The AP reports that a "senior administration official" confirms that President Bush will nominate Harriet Miers, currently the White House Counsel, to replace Sandra Day O'Connor. Miers has never served as a judge at any level, and her nomination appears to give the President an opportunity to push a "stealth" candidate onto the Supreme Court: President Bush has chosen Harriet Miers, White House counsel and a loyal member of the president's inner circle, to replace retiring Justice Sandra Day O'Connor on the Supreme Court, a senior administration official said Monday. If confirmed by the Republican-controlled Senate, Miers, 60, would join Justice Ruth Bader Ginsburg as the second woman on the nation's highest court. Miers, who has never been a judge, was the first woman to serve as president of the Texas State Bar and the Dallas Bar Association. Without a judicial record, it's difficult to know whether Miers would dramatically...

My Grudging Support, Such As It Is

Before we on the Right get a head of steam on what I believe to be completely justified disappointment in the Harriet Miers nomination, I would urge all of us to reflect on a few points made by others with a more optimistic approach. The Anchoress and Hugh Hewitt appear to think that Miers will turn into some kind of Derek Jeter on the Supreme Court, and Dick Cheney predicts that we will thank George Bush ten years from now for picking Miers for this opening. Marvin Olasky tells us all about Miers based primarily on her private life instead of her legal practice. Miers could well surprise all of us and turn out to be another Scalia or Thomas, or more likely a Rehnquist. Even if she turned out to be an O'Connor with a bit more consistency, it still moves the court to the right. If outcome-based nominations...

October 4, 2005

The Liberal Editorial Triumvirate On Miers: Stealth Or Legacy?

The Big Three liberal dailies -- the LA Times, NY Times, and Washington Post -- all issue similar verdicts on the Harriet Miers nomination to the Supreme Court in this morning's editorial pages. While the East Coast papers seem more optimistic about the potential for Miers, the LA Times sees little for which to cheer except her gender. And if George Bush hoped to get a pass on a big political fight at the Judiciary Committee, it won't come with the blessing of the Big Three. The LA Times echoes the disappointment of many conservatives when first told of the Miers nomination: This pattern of relying on advisors he knows and trusts was also on display with the export of several White House confidants, including Condoleezza Rice, Margaret Spellings and Alberto Gonzales, to various federal departments after Bush's reelection. Extending the pattern to the Supreme Court, a separate branch of...

How To Tell When A Nomination Has Hit Trouble

One of the first indications Howard Kurtz had that the Harriet Miers nomination would have trouble came from the White House itself, which scheduled the announcement of the pick at 8 am on a Monday. Kurtz says he doesn't understand why the Bush administration didn't copy its rollout of the John Roberts nomination: An hour after Bush nominated Harriet Miers at the deeply strange hour of 8 a.m. eastern, I realized the nomination had problems. Not on the left, but on the right. ... By the way, after a prime-time rollout for John Roberts, why would Bush have announced Miers on television at 8, which is 5 a.m. on the West Coast? Was the thinking to have clips of her dominate the cable/evening news cycle all day before today's papers could weigh in? Her schoolmarm persona has got to be a plus--she just doesn't look threatening. The cable networks soon...

October 5, 2005

Will Religion Provide The Hinge For Miers?

For a group that has repeatedly argued that the religious practice of judicial nominees has no bearing on their confirmation, conservatives suddenly have discovered a lot of interest in the evangelical outlook of Harriet Miers. The Washington Post devotes a front-page article to the topic in their profile of the new Supreme Court nominee, and discover that Miers still resists easy categorization: Hecht and other confidants of Miers all pledge that if the Senate confirms her nomination to the Supreme Court, her judicial values will be guided by the law and the Constitution. But they say her personal values have been shaped by her abiding faith in Jesus, and by her membership in the massive red-brick Valley View Christian Church, where she was baptized as an adult, served on the missions committee and taught religious classes. At Valley View, pastors preach that abortion is murder, that the Bible is the...

October 6, 2005

Gasoline On The Fire

As if the eruption of war among conservatives had not gotten bad enough, the White House sent Ed Gillespie out to settle tempers down yesterday by inviting activists to a private meeting. Instead of assuaging their fears, he insulted them by calling them elitists and sexists, touching off a new round of recriminations about an administration that has clearly lost touch with its base: A day after Bush publicly beseeched skeptical supporters to trust his judgment on Miers, a succession of prominent conservative leaders told his representatives that they did not. Over the course of several hours of sometimes testy exchanges, the dissenters complained that Miers was an unknown quantity with a thin rsum and that her selection -- Bush called her "the best person I could find" -- was a betrayal of years of struggle to move the court to the right. At one point in the first of...

Does Bush Have The GOP Senate Caucus On Miers?

George Bush and the White House yesterday told their critics -- when they weren't calling them sexists and elitists -- that the only votes that matter now belong to the 100 Senators that have to confirm or reject the nomination of Harriet Miers to the Supreme Court. Sounding confident in their standing among that constituency, the administraion then sent emissaries to soothe the waters with their followers, to disastrous results. It also appears that they may find more of the same in the Senate, despite their sanguinity about Miers' confirmation. Key Republicans have gone on record claiming that Miers leaves them underwhelmed as a candidate. Some openly question the "trust me" approach of the White House: "There are a lot more people - men, women and minorities - that are more qualified, in my opinion, by their experience than she is," Senator Trent Lott, Republican of Mississippi, told MSNBC on...

Can We Remember Who Our Friends Are?

I disagree with Hugh Hewitt to a large degree on the Harriet Miers nomination to the Supreme Court. I base my support for Miers on a wish to avoid a destructive party schism that will threaten our hold on one or both houses of Congress next year, a loss which we cannot afford during the war on terror. Realistically speaking, Miers will probably be a disappointment but is unlikely to be another Souter or even a Kennedy. Her defeat does not outweigh coughing up Congress. Disagreement, however, only goes so far: "Shill," "toady," "kool-aid drinker," and --yes-- W's "Joe Conason" --the unkindest cut of all-- have all been attributed to me by colleagues on the center-right. Actually, there are even worse descriptions, but I maintain a PG blog. Fine, all around. Let fly, friends, you owe me nothing except your candid opinions. But you might owe the president more. I...

October 7, 2005

Dionne Notes Chickens Coming Home To Roost

Earlier, I warned about the approach taken by some conservatives to rely so publicly on the evangelicalism of Harriet Miers could create a political environment that we will later rue legitimizing. E.J. Dionne notices my post and picks up on the contrariness of Republican objections to their righteous anger at Democratic criticisms of appointees based on their "deeply held personal beliefs" and their push to note Miers' dedication to her religion now: Shortly after Bush named John Roberts to the Supreme Court, a few Democrats, including Sen. Richard Durbin (D-Ill.), suggested that the nominee might reasonably be questioned about the impact of his religious faith on his decisions as a justice. Durbin had his head taken off. "We have no religious tests for public office in this country," thundered Sen. John Cornyn (R-Tex.), insisting that any inquiry about a potential judge's religious views was "offensive." Fidelis, a conservative Catholic group,...

October 8, 2005

Miers Analysis At WaPo Sympathetic, So Far

So far, the analysis of Harriet Miers at the Washington Post appears mostly sympathetic, a marked contrast to the initial work done on John Roberts in the first few weeks of his nomination to the Court. Jo Becker, who wrote some of the more egregious material on Roberts, provides a more nuanced and attractive look at the cipher whose nomination has touched off an internecine war on the Right: Now President Bush's nominee to the Supreme Court, Miers served one term on the Dallas City Council, from 1989 to 1991, a period that offers a rare view of her political philosophy and style. Her campaign, votes and public stances defy easy characterization. She would meet with abortion rights advocates and gay rights activists but tell them firmly she did not agree with them. She backed a redistricting plan aimed at electing more minorities even though conservatives called it a quota...

October 9, 2005

Three-Part Disharmony

Earlier this week, the Washington Post asked me to write an analysis of the conservative reaction to the Harriet Miers nomination, after a recommendation from Michelle Malkin. It took up a bit of my evenings this week, one of the reasons my output may have seemed a bit slow, but CQ readers should appreciate the result. My essay appears in today's Outlook, titled "How Harriet Unleashed A Storm On The Right": The president's surprise pick to replace Sandra Day O'Connor has ignited a massive debate among his former loyalists, especially in the blogosphere, where I spend a fair amount of time. Wails of betrayal are clashing with assurances of the president's brilliant strategic thinking. Meanwhile, the heavyweights of punditry drop columns like artillery shells into what already may be a conservative civil war. ... Bush himself ran on the promise that his election would guarantee Supreme Court nominations in the...

October 10, 2005

Harriet Not A Hit Inside The Beltway

The Bush White House may find itself in the unusual position of relying on the opposition party to pass one of its nominees, according to the Washington Times. Almost half of the Senate GOP caucus has refused to publicly endorse Harriet Miers' confirmation to the Supreme Court, expressing either reservations or skepticism over her qualifications. Meanwhile, Arlen Specter and Pat Leahy have criticized the critics, with the former casting the naysayers as a "lynch mob: Nearly half of Senate Republicans say they remain unconvinced that Harriet Miers is worthy of being confirmed to the Supreme Court, according to a survey conducted by The Washington Times. As with the nomination of Chief Justice John G. Roberts Jr., the vast majority of senators say they will not announce their final decisions about the nomination until after Senate Judiciary Committee hearings, which are expected sometime next month. What's troubling for President Bush, however,...

October 11, 2005

The Dishonorable Stamp Of Approval

I have insisted that the Democrats will not allow the Harriet Miers nomination to go down to defeat, inasmuch as the alternatives look too politically unpalatable. The Gang of 14, those "moderate" Senators who hijacked the confirmation process last spring, have made that outcome more likely than ever by issuing an endorsement of Miers, the Hill reports in today's edition: The Gang of 14s centrist Democratic and Republican senators met and gave preliminary approval yesterday to Harriet Miers as President Bushs nominee to replace Justice Sandra Day OConnor on the Supreme Court. Emerging from a meeting at the offices of Sen. Ben Nelson (D-Neb.), Sen. Susan Collins (R-Maine) said, This nomination didnt set off any alarm bells with any of us. The significance of this provisional endorsement, though presented in a low-key fashion, could be huge, for it means that unless damning evidence emerges during the Judiciary Committees as-yet unscheduled...

White House Pours More Gasoline On The Fire (Updated)

It's either feast or famine at the White House with the Harriet Miers nomination. Given the chance to lay out a positive, substantial case for her nomination to the Supreme Court, the Bush administration has remained largely silent. However, given an opportunity to smear the base that elected them, the administration has seized practically every opportunity to do so. The latest comes from the normally classy First Lady, who again promoted Ed Gillespie's barnburner accusation of sexism among the ranks of conservatives: Joining her husband in defense of Supreme Court nominee Harriet Miers, Laura Bush today called her a "role model for young women around the country" and suggested that sexism was a "possible" reason for the heavy criticism of the nomination. "I know Harriet well," the first lady said. "I know how accomplished she is. I know how many times she's broken the glass ceiling. . . . She's...

October 12, 2005

Further Notes On "Sexism"

Yes, I have read the transcript from Dafydd at Big Lizards of the Matt Lauer interview. Yes, I know that Matt Lauer is not the greatest interviewer nor a friend to conservatives -- which calls into question why the Bushes bother to do an interview on Today in the first place. But I think that parsing the interview to claim that Laura Bush didn't agree with Lauer's contention that the criticism came from "sexism" is at best Clintonesque, and silly beyond belief: Laura Bush: Thats right. And I know Harriet well, I know how accomplished she is, I know how many times shes broken the glass ceiling herself. Shes a rol[e] model for young women around our country -- Lauer: Some are suggesting -- Laura Bush: Not only that, she is very deliberate and thoughtful and will bring dignity to, uh, wherever she goes. But certainly to the Supreme Court,...

Politics Abhors A Vacuum

In my Daily Standard column this week, "The Sounds Of Silence", I point out that the White House has done little to help its own cause for the Harriet Miers nomination. The strategy of "trust me" has obviously failed, and it looks like the staffers haven't yet come up with a Plan B: DURING HIS PRESIDENTIAL CAMPAIGNS, Bush promised to nominate conservatives to the Supreme Court in the mold of Antonin Scalia and Clarence Thomas. Now the bill has come due, and the response the president's supporters have received has been: "trust me." Some have noted similarities between this nomination and the last "trust me" Republican nomination to the Supreme Court, David Souter. Bush the Elder told conservatives that Souter would be a "home run." In the past few months, Bush has had two opportunities to fulfill his own election pledge. The president instead selected a brilliant, but largely untested,...

The Miers Telecon

I took part in the teleconference today with Ken Mehlman and Patrick Ruffini this afternoon on the Harriet Miers nomination, although I could not blog about it at the time. It lasted about a half hour, and the process worked quite well; I think everyone appreciated the effort Patrick and Ken put into reaching out to the blogs to shore up support for Miers' nomination. They put on the best case, in positive terms, that the White House has made thus far. It's long overdue, and perhaps a harbinger of better thinking at the White House on the work needed for conservatives to accept Miers' confirmation. That said, I'm still less than impressed with Miers as a nominee. Ken and Patrick drove home the new message that nominees have to have two overriding qualities: the right philosophy and the right character. They argued that her track record in her pioneering...

October 13, 2005

Another Day, Another Flub From White House

It seems like the Bush White House has suddenly acquired a tin ear for politics over the past fortnight. Just weeks after Republican Senators angrily asserted that religion should have nothing to do with the confirmation of John Roberts to the Supreme Court, the White House has openly embraced religion as a key qualification for the nomination of Harriet Miers, creating a new controversy for the new nominee: President Bush prompted criticism from the right and the left on Wednesday after he said White House officials had told conservative supporters about the religious beliefs of his latest Supreme Court nominee, Harriet E. Miers, as part of an "outreach effort" to explain who she is. "People ask me why I picked Harriet Miers," Mr. Bush told reporters in the Oval Office. "They want to know Harriet Miers's background, they want to know as much as they possibly can before they form...

And I Thought Conservatives Were Going Nuts Over Miers

I had a back-to-reality moment this evening that I wanted to share with CQ readers tonight, and I haven't had a chance until now. Earlier this afternoon, I got a call from a New England radio station looking for a conservative commentator to discuss the Harriet Miers controversy. This talk show skews a bit liberal, I presume, but the producer and I have had a couple of great discussions on issues in the past and she and the show want to have an open forum for debate. So far, the timing hasn't worked out, but I hope to join them for a broadcast. Not tonight, though. We discussed the nomination and some of my concerns about the President's selection, and the producer kept pressing me for more. We got around to discussing George Bush's declaration that Miers' faith provided a reason for his selection, which I still think is a...

October 14, 2005

More On Miers' Character, But Nothing On Her Philosophy

One of the last places one would normally look to find a defense of a George Bush nominee to the Supreme Court is the New York Times. However, Matthew Scully, the author of Dominion and former speech writer for George Bush, writes a rather caustic and sarcastic defense of Harriet Miers in today's op-ed section. At least half of Scully's defense consists of his playing offense against the critics of Miers' nomination, and the other half seems rather off-topic: When you know Harriet Miers, it's funny to think of her as the subject of such controversy. Yet already her notoriety is such that even the most innocent of virtues can be thrown back at her as inadequate - "not even second-rate," as a National Review Online posting said, "but third-rate." She's a detail person. Diligent and dependable. Honest, kind, modest, devout and all that. A real mediocrity. Her qualities are...

A Suggestion For Governor Pawlenty For MN Supreme Court

I listened to the Hugh Hewitt show last night when Hugh interviewed Minnesota Governor Tim Pawlenty about the opening for Chief Justice of our state Supreme Court. It turned into a reverse interview, of sorts, when Hugh threw his hat into the ring for the position. Of course, with Hugh's track record in constitutional law, numerous publications on the judiciary, and his status as an eminent professor, he would normally be an excellent candidate for the position -- but as the transcript shows, Governor Pawlenty wisely chose to treat his application a bit on the light-hearted side. I would like to ask the Governor to consider another candidate more seriously. Among our brethren, we have a candidate who has a broad public presence, a long history of courageous writing on judicial philosophy, and the humility and outlook necessary for this position. I refer to my friend and blogosphere associate Scott...

October 16, 2005

White House Wants A Do-Over On Miers

Time Magazine reports today that the White House recognizes that they have muffed the Harriet Miers nomination, and want a second chance to make a first impression. After having argued almost everything except a track record that would settle questions about why President Bush selected her over more obviously qualified candidates, the administration admits it screwed up and plans a new public argument for her confirmation: Get ready for a whole new Harriet. After a disastrous two weeks, White House officials say they hope to relaunch the nomination of Harriet Miers for the Supreme Court by moving from what they call a "biographical phase" to an "accomplishment phase." In other words, stop debating her religion and personality and start focusing on her rsum as a pioneering female lawyer of the Southwest. "We got a little wrapped around the axle," an exhausted White House official said. "As the focus becomes less...

October 18, 2005

Miers 2.0: Same Bugs, Less Features

The effort to roll out a new campaign in support of Harriet Miers' nomination to the Supreme Court fell far short of what the White House needs to get conservatives on its side. Instead of focusing on the nominee's credentials, the White House counsel wound up in a controversy over inconsistently discussing specific cases with specific senators and getting caught out by a presumably sympathetic Judiciary Committee member, while both left and right found new issues on which to base their criticism. According to Charles Schumer, Miers would not talk about specific cases like and (in his opinion) did not seem to know much about Supreme Court case law, in a conversation he called "unproductive": President Bush's nominee for the Supreme Court, Harriet Miers, won't be ready for a confirmation hearing November 7 because she "needs some time to learn" about landmark constitutional cases, Senator Schumer said yesterday. Mr. Schumer,...

Now Arguing On Behalf Of The Rebel Alliance ...

... is Judge Robert Bork, famed jurist, constitutional scholar, and the man whose mistreatment at the hands of Senate Democrats two decades ago spawned an eponymous political verb. Bork writes a scathing denunciation of the Bush administration and its approach to Supreme Court nominations in tomorrow's Opinion Journal, arguing that Bush could hardly have damaged the conservative movement more with the Miers nomination than if he intended to do so -- and Bork more than implies that Bush may well have had just that in mind: With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals. ... Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until...

October 19, 2005

Anti-Abortion Stance Clarifies Miers Politics

A questionnaire filled out by Harriet Miers sixteen years ago show that her political approach to abortion supported the typical conservative position of opposition in most cases. The questionnaire, which Miers voluntarily provided to the Senate Judiciary Committee, came from a pro-life group in Texas interested in her run for the Dallas City Council: Harriet E. Miers, the Supreme Court nominee, disclosed on Tuesday a 1989 survey in which she supported banning abortion except to protect the life of the pregnant woman. The disclosure alarmed abortion rights supporters but failed to assuage the concerns of some conservative Republicans. ... The 1989 survey, which Ms. Miers filled out for the anti-abortion group Texans United for Life when she was a candidate for the Dallas City Council, constituted the clearest indication yet of her personal views on abortion. It did not ask whether she believed that the Constitution protected a right to...

October 20, 2005

Richard Cohen For SCOTUS?

In a column that will surely generate much ire among his usual readers, Richard Cohen makes an almost-perfect argument for the reversal of Roe v Wade and the support of originalism in Supreme Court deliberations, showing that originalism does not limit its utility or its attractiveness to just conservatives. Cohen, while stating his pro-choice position clearly, writes that the 1973 decision has a "musty" feel about it, having its scientific reasoning frozen in amber and the conclusions which follow from it lacking intellectual support: If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked...

Still Stumbling Towards SCOTUS (Proportionally Updated!)

The Harriet Miers nomination and political support campaign continued its clumsy path yesterday, with her questionnaire responses receiving failing grades from Judiciary Committee members of both parties. Chair Arlen Specter and ranking Democrat Pat Leahy held a press conference yesterday to castigate the effort as at best incomplete, and at worst an insult to their intelligence: The top two members of the Senate Judiciary Committee yesterday complained about the written responses they received from Supreme Court nominee Harriet Miers this week, and warned her to expect tough questions from Republicans and Democrats alike when her confirmation hearing begins Nov. 7. Barely concealing their irritation during a 35-minute news conference at the Capitol, Chairman Arlen Specter (R-Pa.) and ranking Democrat Patrick J. Leahy (Vt.) called the lobbying on Miers's behalf "chaotic," and said the answers she provided Monday to a lengthy questionnaire were inadequate. "The comments I have heard range from...

The Final Act Of Miers Nomination Begins

CQ reader Tom Holsinger notes a key development in the Harriet Miers nomination to the Supreme Court, one that probably will signal a merciful end to the conservative split over the controversial selection. Two key Republican Senators, the conservative Sam Brownback and the more moderate Lindsay Graham, have "requested" privileged material from Miers' work with George Bush for their review as a condition of their desired support of Miers' confirmation -- a request that amounts to a polite triple-dog dare: Sens. Lindsey Graham (R-S.C.) and Sam Brownback (R-Kan.) are calling for the White House to turn over internal documents related to Supreme Court nominee Harriet Mierss service as White House counsel, breaking with Republican colleagues who say the boundaries of executive privilege must not be pushed. ... Grahams and Brownbacks push for greater disclosure will give Democrats political leverage should they ask for memos and other documents shedding light on...

October 21, 2005

Bad News Turns Into Flood On Miers

This morning's news has administration aides choking on their morning coffee regarding the Harriet Miers nomination. While the Wall Street Journal comes out in opposition to her confirmation and urges withdrawal, the New York Sun reports that a senior Republican Senator has already passed that same message to the White House, which angrily dismissed the feedback. Meanwhile, John Fund reports that Miers' work at the Texas Lottery Commission will bring up several uncomfortable details about a sweetheart golden parachute for Ben Barnes after his firm lost a TLC contract under questionable circumstances -- and new reports have come out showing that George Bush paid a hell of a lot of money for Miers' services at about that same time. First, Brian McGuire at the Sun reports that the Senate GOP caucus may already be balking at proceeding with the Miers nomination: The Supreme Court nomination of White House counsel Harriet...

October 22, 2005

Is Miers A Quota Queen, Or Just Misquoted?

Today's Washington Post alleges that Harriet Miers pushed for racial and gender set-asides in her role as president of the Texas State Bar, complete with the kind of specific numerical goals to which conservatives object as quota systems. Coming so soon after the unfortunate and sloppy choice of phrasing in her Senate questionnaire, it makes it sound as if Miers might be closer to Lani Guinier than Sandra Day O'Connor on the question of affirmative action -- and neither would make the GOP base happy at all. However, the White House quickly pointed out that Miers did not generate this policy of the Texas Bar, nor did this have any implication of a government mandate. As such, the White House implies that it represents the kind of private-enterprise, voluntary approach to improving diversity it supports. So which should we believe -- Quota Queen, or just misquoted? Miers, the first female...

October 24, 2005

Andy Card, "Serial Souterizer"

John Fund notes a couple of surprising revelations ahout the Harriet Miers' nomination to the Supreme Court in his recap of the lessons that should be learned from the damaging nomination. Most interesting is Fund's connection between the Miers bid and that of David Souter, with the conjunction being Andy Card: The botched handling of the Kerik nomination was a precursor of much that has gone wrong with the Miers nomination. This time, the normal vetting process broke down, with Mr. Card ordering William Kelley, Ms. Miers's own deputy, to conduct the background checks--a clear conflict of interest. ... Another reason for conservative suspicion is that it was Mr. Card, a former moderate Massachusetts state legislator, who pushed the Miers choice. "This is something that Andy and the president cooked up," a White House adviser told Time magazine. "Andy knew it would appeal to the president because he loves appointing...

What To Ask Miers?

Dafydd ab Hugh issues a challenge to the blogosphere, calling on bloggers from all sides of the Harriet Miers nomination to come up with questions for Miers' confirmation hearings. I think this is an excellent idea, especially for those who continue to view this nomination with skepticism. What questions would relieve our doubts? What kind of answers would confirm them? I'll start off with a couple that address my reservations with Miers as a Supreme Court candidate. I may add to this as I think through the challenge a bit more, so keep checking back for updates. As the chief executive officer of a state agency, you once endorsed set-asides as a means of affirmative action. Do you still believe in that remedy as a Constitutional method of achieving diversity? Do you think that the Constitution addresses the concept of "diversity" as an overriding state concern? This really has been...

October 25, 2005

Will Bush Take The Honorable Option Out Of Miers Fiasco?

George Bush appeared to go out of his way yesterday to address the issue of executive privilege and the Harriet Miers confirmation hearings, setting up a contest of wills between the White House and the Senate Judiciary Committee over her nomination. It could mean that Bush intends to push Miers through while revealing almost nothing about her work at the White House, which he has claimed as the major qualifications for her selection. It might also reveal that Bush wants to keep open the option for an honorable withdrawal: President Bush refused on Monday to turn over documents requested by Republicans and Democrats related to Harriet E. Miers's work in the White House, setting up a potential confrontation with the Senate Judiciary Committee over her confirmation to the Supreme Court. "It's a red line I'm not willing to cross," Mr. Bush told reporters after a cabinet meeting, referring to the...

October 26, 2005

Lindsay Graham And Mike DeWine, Super Geniuses

Senators Lindsay Graham and Mike DeWine should learn from the well-worn proverb that instructs one to keep one's mouth shut and be thought a fool rather than open it and remove all doubt. Yesterday, in defending Harriet Miers from the growing opposition against her confirmation within the GOP, both claimed that the grass-roots effort to publicize their disapproval would only have the opposite effect on Republican Senators -- because apparently voters have now become a "special interest": Senator Lindsey Graham, of South Carolina, said that if Ms. Miers withdrew now she would only hurt Republican senators who are uneasy about her nomination. It would suggest that special interest groups control the nomination process, he said. Mr. Graham said the nominee can't withdraw for this reason alone and that the hearings will go forward as planned. "If she withdraws, that means that we, the party and the president, have given in...

I'm Moving Off The Fence

I took what little time at work (on my lunch break) that I could to read through the speech given by Harriet Miers to the Executive Women of Dallas in 1993, and wound up re-reading three more times tonight. I would encourage everyone to read this speech carefully, as it sheds quite a bit of light onto the skills and outlook of the nominee selected by George Bush. It's quite unsettling. The first quality that comes across when I read this speech is its mediocrity. I assume Miers wrote it herself, because no one would pay for something written this poorly, just on a mechanical level. It's full of incomplete sentences, poor grammar, conjugation errors, and the like. I understand that this isn't an essay for print, but it is a speech that was written in a format for verbatim delivery. "I think the last week of the Senatorial Ads...

October 27, 2005

Signs Of The End For The Miers Nomination?

Two overnight developments in the embattled Harriet Miers nomination point towards either the collapse of the effort to confirm Miers or a politically devastating siege mentality at the White House. First, the New York Sun reports that at least two GOP Senators will announce their opposition to Miers based on the speeches released earlier this week if the Bush administration refuses to withdraw her nomination. The Washington Times also reports that a key figure that had been working to support the PR campaign for Miers has suddenly quit to return to the Federalist Society, which Miers once disparaged and which has remained absolutely silent on her nomination. Brian McGuire reports that the Miers speech to the Executive Women of Dallas has forced conservative Republicans in the Senate to consider her confirmation as an unnecessary gamble: The two speeches, first reported late Tuesday by the Washington Post, angered conservative groups that...

Send Miers To The Floor, If She Dares

Hugh Hewitt has brought out another argument for supporting Harriet Miers this morning -- that conservative calls for Miers' withdrawal will undercut efforts to bring later nominees to a full floor vote: Now, however, a big slice of conservative punditry has decioded that the long march back isn't worth the risk that Harriet Miers isn't who the president and her close associates say she is. On the basis of a very thin set of papers --some of them distorted, and all of them cherry-picked-- and with an absolute refusal to entertain any of the many arguments and testimonies on her behalf, this caucus has seized on the very tactics most conservatives have long denounced in order to do what? To deny Harriet Miers a hearing and an up-or-down vote on the Senate floor. That's absurd. No one recommends "denying" her a floor vote. In my post, I specifically say she...

The Krauthammer Option Wins Out

Miers withdraws her nomination, and the President "reluctantly" accepts: Confronted with criticism from both the left and right, Harriet Miers on Thursday withdrew her nomination to the U.S. Supreme Court. In a statement, President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. Bush blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege. The face-saving withdrawal option presented by Sam Brownback and Linsday Graham took only a matter of days to get recognized by the White House. Good for them. It won't save them from some criticism, but it will make this into the nine-day wonder it should always have been. Now can we nominate a candidate whose qualities and track record presumes we control the Senate?...

No Time For Celebration

No conservative or Republican should feel like gloating over the withdrawal of Harriet Miers today, although perhaps a feeling of relief would be understandable. Bush made a mistake in nominating Miers, but it wasn't Miers' mistake -- and she acted honorably in withdrawing her name once it became clear that her nomination enjoyed little support among Republicans in the Senate and elsewhere. She apparently will remain on Bush's staff as White House counsel, which is where she should have stayed. On the other hand, let's also not engage in sniping at each other further now that the Miers nomination has ended. We need to focus on the nomination ahead, and how best to engage the full Senate caucus to line up behind a candidate that reflects GOP control of the Senate. That requires not just a demonstrably originalist thinker who can help transform the Court from its activist impulses and...

October 28, 2005

Why Miers Tanked

We need to set the record straight on why the nomination of Harriet Miers to the Supreme Court failed. This failure didn't start with David Frum putting together an ad-hoc committee to pay for television advertising, and it didn't start with the blogosphere opining on Harriet Miers' birthday-card greetings. It started in the White House, where another poor job of vetting a candidate came back to bite the Bush administration -- not for the first time in this term. The White House selection process that produced Miers can be boiled down to one sentence: Bush liked her, and no one bothered to check her out properly. The Washington Post has more: For Harriet Miers, the "murder boards" were aptly named. Day after day in a room in the Justice Department, colleagues from the Bush administration grilled her on constitutional law, her legal background and her past speeches in practice sessions...

October 29, 2005

What Does The Right Want?

The New York Times asks this question in its Sunday edition after the rejection of Harriet Miers as a Supreme Court nominee. The Bush administration has signaled that it will announce its replacement for the seat opened up by Sandra Day O'Connor's retirement, and the Times wonders what kind of nominee will satisfy the conservatives who objected so strenuously to Miers -- and whether such a nominee can find confirmation in the Senate: In his two choices for the Supreme Court so far, President Bush has tapped what some conservatives called "stealth" nominees: jurists without a clear record of legal opinions on abortion rights or other contentious social issues. But with the announcement of a third nominee to succeed Justice Sandra Day O'Connor expected as early as Monday, prominent conservatives said they were confident that this time would be different. They argued that the reaction against the nomination of Harriet...

October 31, 2005

Alito Gets The Nod

President Bush will nominate Samuel Alito to the Supreme Court seat being vacated by Sandra Day O'Connor, the third nominee for this seat. The AP and Fox News reports that the New Jersey jurist and former prosecutor had topped George Bush's list during his last round of deliberations, but had lost out to the now-withdrawn Harriet Miers when Bush decided to try choosing someone outside of the "judicial monastery": Bush believes that Alito has not only the right experience and conservative ideology for the job, but he also has a temperament suited to building consensus on the court. A former prosecutor, Alito has experience off the bench that factored into Bush's thinking, the officials said. While Alito is expected to win praise from Bush's allies on the right, Democrats have served notice that his nomination would spark a partisan brawl. Senate Minority Leader Harry Reid, D-Nevada, said Sunday that Alito's...

Graham: Forget The Filibuster

In a New York Times report that preceded the nomination of Samuel Alito, one of the Republican Gang of 14 warned the Democrats that any political objections to Alito or any other nominee would not rise to the level of "exceptional circumstances," and that a filibuster would break the agreement that kept the Byrd option off the table: Mr. Reid had already said he would object to the selection of Judge Luttig or Judge Owen. And on Sunday, he did not rule out the possibility that Democrats would try to block a nominee by a filibuster or refusing to close debate and vote. "We are going to do everything we can" to see that the president names "somebody that's really good," Mr. Reid said. But Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because...

The Byrd Option Gets More Backing

Yesterday, Lindsay Graham stepped away from his foolish flirtation with the Democrats and warned that any attempt to filibuster a qualified nominee to the Supreme Court such as Samuel Alito -- who had not yet been announced as the selection -- would not qualify as an "exceptional circumstance", and that Graham would then support the Byrd option eliminating the filibuster. Now on Hugh Hewitt's show, we can add another of the Gang of 14, Ohio Senator Mike DeWine, who explicitly stated that he will vote for the Byrd option to end filibusters on judicial nominees. Radioblogger has the transcript: HH: Your colleague on judiciary, Lindsey Graham of South Carolina, said yesterday on Face The Nation, that if Democrats attempt to filibuster, he will work to break it, meaning that this is not something the Gang of 14 had in mind. Do you agree with Senator Graham that this is not...

November 1, 2005

The Big Three On Alito

Four weeks ago, the editorial boards of three most influential liberal newspapers reviewed the Harriet Miers nomination to the Supreme Court with suspicion due to her lack of a track record on legal issues. Oddly, the LA Times came closest to mirroring the eventual conservative reaction while the New York Times and Washington Post took a more optimistic approach to the unusual choice, although all three wondered about the role that proximity played in Bush's selection. Today, however, Bush's choice of a clearly conservative jurist with originalist approach has removed all of the suspicion and doubt from the editorialists' minds. Unsurprisingly, the most definite reaction comes from the NYT, where they decry the "lost opportunity" by picking a "white man" instead of the "wrong woman": Whatever the answer, this nomination is yet another occasion to bemoan lost opportunities. Mr. Bush could have signaled that he was prepared to move on...

The Alito Smear: Italian=Mafioso

The anti-Alito gang has already come up with its first smear, and at least this time it doesn't hinge on speculation of the sexual orientation of a five-year-old son of the nominee. No, this time it relates to the ethnicity of the nominee himself, Samuel Alito, and his failure to win a conviction in one Mafia case seventeen years ago. The implication, which even Chris Matthews noted was "disgusting" and "amazingly bad politics", will claim that Alito somehow let one slip away for his paisan. From the first paragraph and then the second talking point, courtesy of Redstate: While serving as a U.S. Attorney, Alito failed to obtain a key conviction, releasing nearly two dozen mobsters back into society. ... U.S. Attorney Alito Failed to Obtain Conviction of 20 Mobsters, Saying You Cant Win Them All. Federal law enforcement agencies sustained a major rebuff in their anti-mafia campaign with the...

November 2, 2005

Liberals Love Alito: LA Times

While conservative enthusiasm for Judge Samuel Alito has received widespread coverage from the Exempt Media this week, the assumption of the reverse has received universal and unquestioned acceptance. In the simplified world of mass media, the judiciary gets represented as a zero-sum game, and where the parties keep the stakes high in order to prevail. Interestingly, the Los Angeles Times breaks that mold first in a profile of some unexpected support for Alito's nomination to the Supreme Court -- from liberal legal activists: Samuel A. Alito Jr. was quickly branded a hard-core conservative after President Bush announced his nomination, but a surprising number of liberal-leaning judges and ex-clerks say they support his elevation to the Supreme Court. Those who have worked alongside him say he was neither an ideologue nor a judge with an agenda, conservative or otherwise. They caution against attaching a label to Alito. Kate Pringle, a New...

Anti-Filibuster Forces Add Strength As Bush Reaches Out To Moderates

Two stories out of Washington help explain the frustration felt by Harry Reid yesterday and his need to pull a splashy stunt to try to capture the press' attention away from the Alito nomination. The first, a Washington Post story, reports that the Bush administration has started expanding Judge Alito's Senatorial visits to moderates outside of the Judiciary Committee to feed the momentum that appears to have built for his confirmation: A day after President Bush nominated him to succeed retiring Justice Sandra Day O'Connor, Alito spent the day on Capitol Hill introducing himself to more lawmakers. He focused on Democratic senators representing Republican-leaning states as well as Republican members of a bipartisan coalition that headed off judicial filibusters this year. White House strategists assume that they will lose at least the 22 Senate Democrats who voted against confirmation of Chief Justice John G. Roberts Jr. in September. But they...

November 3, 2005

Alito Smear #2: The Draft Dodger

CNN weighed in last night with an AP story that will probably crank up the anti-Alito smear artists on the Left for the next 24-48 hours -- the fact that Samuel Alito went into the Army Reserve rather than wait to get drafted. Faced with a low draft number, Alito chose to enlist as an officer instead and spent a few months on active duty before starting an eight-year career in the Reserves: Supreme Court nominee Samuel Alito joined the Army Reserve while he was a college student because his lottery number had made it likely he would be drafted for the Vietnam War, college roommates said Wednesday. Alito was part of the Army's ROTC program during his years at Princeton -- 1968 to 1972 -- a period when the war in Southeast Asia escalated and more American men were drafted. ... With graduation looming, the student deferment gone and...

A Smarter Schedule, A Dumber AP

Despite calling the January 9th schedule for Samuel Alito's confirmation hearings with the Judiciary Committee a "bipartisan repudiation" of Bush's request for expedited hearings in December in the AP lead on the story, nothing in the rest of the article even remotely suggests that the schedule repudiates anything. In fact, the article by David Espo suggests that the Republicans may have thought through a better strategy than the White House, and that the White House may well have agreed with them. Here's what Espo wrote: The Republican-controlled Senate will begin hearings Jan. 9 on Judge Samuel Alito's appointment to the Supreme Court, leaders of the Judiciary Committee announced Thursday, a bipartisan repudiation of President Bush's call for a final confirmation vote before year's end. "It simply wasn't possible to accommodate the schedule that the White House wanted," said Sen. Arlen Specter, R-Pa., the committee chairman. He outlined a timetable that...

November 5, 2005

Alito Smear #3: The Rock-Ribbed Racist's Candidate

Normally I page through most of the news stories in a day's media output, selecting a handful as interesting and "staging" them in a separate Firefox session before deciding which ones to analyze. Occasionally, however, I find one so offensive and remarkable that I drop everything and start immediately. Thus I came to Colbert King's screed in the Washington Post this morning on his opinion of judicial conservatism/originalism and its proponents. Titled "Credentials Are Fine, but Values Matter, Too," King pulls out the race card with no substantiation whatsoever: Thus sayeth the high priests of far-right conservatism: To be worthy of appointment to the Supreme Court, a nominee must be scholarly, a great intellect and a possessor of sterling conservative credentials. In addition, the nominee should come equipped with a well-established constitutional philosophy, experience in constitutional law and the ability to divine what the Constitution means through analysis of its...

November 6, 2005

Filibuster Momentum Dying Out

The political momentum of a Democratic filibuster appears to have dissipated over the weekend after a momentary corrective earlier this week. Last weekend, two key GOP members of the Gang of 14 asserted that they would not only support the confirmation of Samuel Alito to the Supreme Court but that they would also vote for the Byrd option eliminating filibusters on judicial nominations if the Democrats attempted to block a full Senate vote. By mid-week, the Gang had officially returned to wait-and-see mode instead, but comments today by two of the most combative members of the Democratic caucus make it clear that a filibuster has become a dead issue: "My instinct is we should commit" to an up-or-down vote by the full Senate, said [Senator Joe] Biden, a member of the Judiciary Committee. "I think the probability is that will happen. "I think that judgment won't be made ... until...

November 7, 2005

A Lifetime Perspective On Alito

The New York Times' Janny Scott offers a surprise for Gray Lady readers and gives a fair, in-depth look at Samuel Alito in today's edition. She delves into the personal history of Alito and discerns that his conservatism has much more to do with his nature and little to do with ideology. Scott also finds that his brilliance has won over many supporters across the ideological spectrum, most of whom warn that Alito will likely have his own ideas on how to judge cases other than any strict ideological approach: Throughout his life - at Yale Law School, as a government lawyer, as a judge on the United States Court of Appeals - Judge Alito has earned respect, even friendship, across the political spectrum. Some who describe themselves as liberals say they admire what they call Judge Alito's meticulousness and fair-mindedness - traits he appears to have come by early...

LA Times Analysis: Alito Not An Ideologue

One of the remarkable political stories this weekend was the lessening forces of the winds surrounding Hurricane Alito. Two leading Democrats in the Senate signaled that they will not filibuster Alito, and one -- Ted Kennedy -- said that he might even vote for Alito's confirmation. While some saw this as a ploy to lull Republicans into overconfidence, the Senators may have already done their research and determined, like the Los Angeles Times, that Alito's record shows a careful and thoughtful jurist that cannot easily be pigeonholed into a specific category: Although liberal activists are portraying Judge Samuel A. Alito Jr. as a right-wing extremist, his 15 years' worth of legal opinions do not promise fealty to any ideology. Though many of his rulings favor business or prosecutors, they are often narrow and a sizable number cut the other way. Accordingly, Democrats in the Senate are cautious, and there...

November 10, 2005

Alito's Conflict Of Disinterest And The Blogocon That Settled Nothing

For the past two days, the Samuel Alito nomination to the Supreme Court has made small news by actually finding a controversy that involves a factual issue. During his confirmation to the appellate court in 1990, Alito apparently promised to avoid presiding over cases involving the brokerage house Smith Barney, the investment firm Vanguard, and his sister's law firm because of his personal and financial connections to each. Years later, Alito failed to recuse himself from a case involving the first two parties, and Democrats now want to argue that Alito cannot be trusted now with a seat on the Supreme Court. Based on the urging of Judiciary Committee chair Arlen Specter, Alito responded in writing to the committee: Alito said a 1990 questionnaire he filled out for the panel covered his plans for "initial service" as a judge on the 3rd U.S. Circuit Court of Appeals. "I respectfully submit...

November 11, 2005

No One Pops The Bubbly At The Federalist Society

The New York Times reports on the mood at the Federalist Society, the gathering of conservative attorneys that found itself having to defend its existence twice this year as the White House inadvertently fed a media bias against them as extremists. Despite the confirmation of one well-regarded conservative jurist to the Supreme Court and the nomination of another, David Kilpatrick describes a rather guarded sense of accomplishment by the conservatives at the heart of the movement to return the court from its direction as a superlegislature: These might seem the best of times for the Federalist Society, the conservative lawyers' group established two decades ago to counter what its founders considered the liberal bent of law schools, bar associations and the federal courts. ... But at the convention, among the 1,500 scholars, advocates and judges, a number of whom had been on the shortlist for the Supreme Court, the mood...

November 14, 2005

Game On Again

Just when the anti-Alito forces began to cast their nets elsewhere in hope of landing an issue, it looks like abortion may come back to the center of the debate. The Washington Times reports that Alito's application to join the Reagan administration explicitly states an opposition to abortion and Roe v Wade, creating the opening Democrats need to open that line of questioning at his confirmation hearing: Judge Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times. "I personally believe very strongly" in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III. The document, which is likely to inflame liberals who oppose Judge Alito's nomination to the Supreme Court, is among many that the White House will release...

November 16, 2005

Alito Application Causes Twitters Instead Of Tidal Waves

To the assumable frustration of partisan interests intent on blocking his confirmation to the Supreme Court, the discovery of a cover letter on an application to Ed Meese for a job as his deputy has not done the damage Samuel Alito's opponents hoped it would: Seeking to tamp down a political uproar over a 1985 document in which he denounced racial quotas and said the Constitution did not protect the right to abortion, Judge Samuel A. Alito Jr. told senators on Tuesday that the sentiments were simply the views of "an advocate seeking a job." The document, an application for a promotion within the Reagan administration, could complicate Judge Alito's nomination for the Supreme Court, opening him up to questions during his confirmation hearings about his personal views on the politically sensitive issues of abortion and civil rights. Other nominees have been able to dodge such questions, but both Republicans...

November 27, 2005

The Next Alito Smear: Racist, Sexist By Association

In the next phase of the effort to derail any nominee promulgated by the Bush administration to the Supreme Court, various leftist groups have seized on one entry on a 1985 rsum submitted for an opening in the Reagan administration by Samuel Alito. The New York Times reports on the twisted logic of PFAW in using this entry to paint Alito as a racist and a sexist for the actions of a Princeton alumni group, Concerned Alumni of Princeton: The group's members at the time included Samuel A. Alito Jr., now President Bush's nominee to the Supreme Court, although there is no evidence that he played an active or prominent role. The group had been founded in 1972, the year that Judge Alito graduated, by alumni upset that Princeton had recently begun admitting women. It published a magazine, Prospect, which persistently accused the administration of taking a permissive approach to...

November 29, 2005

Alito Hates Foreigners!

Wow, talk about divine providence -- on the day after George Bush moved immigration reform and border control to the top of his agenda, the Washington Post managed to write about a memo from Reagan-era deliberations that Jo Becker and Amy Goldstein claim shows some sort of animus against foreigners. Headlined by a statement that Alito opposed rights for foreigners, the Becker/Goldstein report reviews Alito's recommendation to accept fingerprint cards from refugees living in Canada: As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans. In an opinion that offers insight into the Supreme Court nominee's view of an area of law that has gained new significance with the Bush administration's policies to combat terrorism, Alito gave his approval to an FBI...

December 2, 2005

Senator Shameless

A former solicitor general lashed out at Chuck Schumer yesterday for his attack on Supreme Court nominee Samuel Alito based on a memo that should never have been released in the first place. Charles Fried, who represented the Reagan administration during Reagan's second term in office and who now teaches at Harvard Law School, said that the memo written by Alito not only provided nothing more than casual advice but also qualified as a privileged document that should have remained sealed: The former U.S. solicitor general who authored a Reagan-era brief against the abortion ruling Roe v. Wade lashed out yesterday at one of the Democratic senators who will be voting on Judge Samuel Alito for saying the Supreme Court nominee should have told senators about work he did on the brief. Charles Fried, a professor at Harvard Law School and President Reagan's lead attorney in front of the Supreme...

December 11, 2005

Bill Frist, Post-Spine Transplant

Senate Majority Leader Bill Frist warned Democrats today that any attempt to filibuster the confirmation of Samuel Alito to the Supreme Court would result in the Byrd Option, which would strip the minority of the filibuster tool permanently for confirmations on appellate-court nominations. His statement gives the strongest indication yet that the GOP has counted heads and determined that enough Senators will back the rules change to make it a reality: Senate Majority Leader Bill Frist said Sunday he is prepared to strip Democrats of their to ability to filibuster if they try to stall Samuel Alito's nomination to the Supreme Court. "The answer is yes," Frist said when asked if he would act to change Senate procedures to restrict a Democratic filibuster. "Supreme Court justice nominees deserve an up-or-down vote, and it would be absolutely wrong to deny him that." In recent weeks, Senate Democrats have questioned whether Alito,...

December 15, 2005

Anti-Alito Campaign Losing Momentum

The New York Sun reports that the "grass-roots" efforts by PFAW and Alliance for Justice to generate a groundswell of opposition to the confirmation of Samuel Alito to the Supreme Court has so far failed miserably. A nationwide 'educational' tour has generated almost no interest at all, and on-line petitions have only received 55,000 endorsements instead of the targeted million or more: A grass roots effort aimed at fueling opposition to Supreme Court nominee Judge Samuel Alito has become a target of mockery for the nominee's conservative allies instead - the latest skirmish in an ongoing turf battle among interest groups almost four weeks ahead of the confirmation hearing. Earlier this month, the liberal activist group Alliance for Justice kicked off a nationwide tour against Judge Alito in which members travel from town to town distributing literature and organizing events against the nominee. Starting in Colorado, the so-called "Rolling Justice"...

December 24, 2005

Alito Opponents Believe In Recycling

Earlier this week, I noticed but did not bother to blog on a news story that Samuel Alito had suggested using a particular case to gain a limitation of scope for Roe v Wade. Although the news media had presented this memo as somewhat of a blockbuster, it appeared more to me that it seemed a lot like an earlier memo uncovered by Alito's opposition; it recommended a certain course of action for the Reagan administration to take if the administration wanted to gradually reverse the ban on abortion but cautioned against an all-out war on Roe. It was yet another example of basic attorney-client advice that should be irrelevant for a committee considering a candidate with over a decade of experience as an appellate court jurist -- which is what the Judiciary Committee should consider when determining whether Alito is qualified to sit on the Supreme Court. What I...

December 28, 2005

FISA Court Obstructionism Since 9/11

One of the arguments that critics of the Bush administration give for their outrage at the warrantless surveillance of international communications between targeted, non-US persons inside the US and suspected al-Qaeda contacts abroad is the supposed ease of gaining FISA warrants. Bear in mind that the text of FISA does not require warrants for that kind of communication, and the NY Times did not allege that the NSA tried to use warrantless surveillance for any other communications. Even if warrants were as easily gained as Bush's critics claim, the law allows them to do that kind of surveillance without it. However, the track record of the FISA court shows that the judges have engaged in their own form of obstructionism after 9/11. The blog Bayosphere has put together a track record of FISA court actions on warrant applications, and it shows some surprising trends. Starting in 1979, the first twenty-one...

December 29, 2005

So Much For Alito As Racist And Fascist

Papers released yesterday show a young Samuel Alito as a cautious attorney and advisor to the Reagan administration, offering a conservative strategy in terms of the use of the courts for political purposes, as evidenced by two memos reported by the Washington Post and the New York Sun. The main issue involved a Black Panther lawsuit that had won a technical ruling on standing for its lawsuit against a number of government officials, including Bush's father, that Alito advised should not get challenged. As the Sun reports, Alito underestimated the government argument in the Black Panther case: As a young lawyer in the Department of Justice, Samuel Alito argued against asking the Supreme Court to review a Black Panther lawsuit, documents released yesterday show. It was the third time in less than a month that papers from the Supreme Court nominee's early career in the Reagan administration show him pressing...

Sixth Circuit Says No Wall Between Church And State

I missed this story last week, although I believe other bloggers have already reported it. The 6th Federal Appellate Circuit ruled against the ACLU in a Ten Commandments case on December 21st, ruling specifically that the Constitution did not require a wall between church and state, revalidating the display of the Ten Commandments on government property: A federal appeals court has upheld a display of the Ten Commandments alongside other historical documents in the Mercer County, Ky., courthouse. The judge who wrote the opinion blasted the American Civil Liberties Union, which challenged the display, in language that echoed the type of criticism often directed at the organization. Judge Richard Suhrheinrich's ruling said the ACLU brought "tiresome" arguments about the "wall of separation" between church and state, and it said the organization does not represent a "reasonable person." The decision was issued by a three-judge panel of the 6th U.S. Circuit...

January 4, 2006

Alito Opposition Fails To Find Any Traction

On the brink of his confirmation hearings, Judge Samuel Alito still has the backing of the American people for his selection to the Supreme Court according to every major poll, the Washington Times reports today. With the nation's political attention diverted by the NSA intercepts and the Abramoff plea, it's unlikely that Alito opponents will get much media oxygen to reverse it before testimony begins next Monday: Despite a major coordinated campaign, liberal interest groups have failed to convince the American public that the Senate should reject Supreme Court nominee Samuel A. Alito Jr. Every major poll indicates that far more voters think Judge Alito should be confirmed than think he should be rejected. Though that support generally is lower than it was for John G. Roberts Jr. before his confirmation for chief justice in the fall, it is on par with the public support for Supreme Court nominees during...

January 5, 2006

Anti-Alito Forces Get Personal In Desperation

The desperation of the anti-Alito forces has become obvious in their eleventh hour. They have released their pre-hearing advertising designed to convince Americans that Judge Alito should not get confirmed to the Supreme Court. Thanks to the ABA's unanimous decision yesterday to give Alito its highest rating -- "well qualified" -- the only avenue left to PFAW and AJ is character assassination: The battle over the Supreme Court nomination of Judge Samuel A. Alito Jr. turned personal Wednesday with the announcement of new commercials that sharply escalated liberal attacks on him, moving beyond his legal views to attack his character and credibility instead. ... Separately, the American Bar Association on Wednesday rated Judge Alito "well qualified" for the court, its highest rating, as expected. His supporters hailed the rating. Liberal groups said their complaint was his judicial philosophy, not his professional qualifications. A commercial by one of the liberal groups,...

January 6, 2006

Confirmation Follies To Reach Their Crescendo This Weekend

We can expect the circus surrounding the nomination of Judge Sam Alito to the Supreme Court to pick up the intensity over the weekend. That may already have begun to some small extent with a warning from the loudmouth of the Democratic caucus on the Judiciary Committee, Chuck Schumer, explaining that Alito has to give more complete answers than anyone else: Alito's hearing before the Judiciary Committee, scheduled to begin Monday, will last a week if it tracks last year's confirmation process for Chief Justice John G. Roberts Jr. A Democratic member, Charles E. Schumer (N.Y.), said yesterday that senators will ask extensive questions and insist that Alito answer them fully -- even if it means pushing the hearing into the following week. All judicial nominees are required to respond to senators' queries, Schumer said in a speech in Washington. "The obligation, however, is greater for some nominees," he said....

Anti-Alito Witness Backs Off

One of the Democrats' key character assassination witnesses has suddenly withdrawn his name from the list expected to be called after Judge Samuel Alito testifies for his confirmation hearings, Fox News is reporting. Stephen Dujack had been expected to testify that Concerned Alumni of Princeton, a group in which Alito noted his membership on a resume, had leadership that exhibited racism, sexism, and "dirty tactics". However, Dujack's other writings may have led to a major credibility crisis: A key witness to the character of Judge Samuel A. Alito has been removed from the Senate Judiciary Committee Democrats' testimony list, FOXNews.com has learned. Stephen R. Dujack, editor of The Environmental Forum magazine and fellow Princeton University alumnus, was expected to testify about a controversial student organization that counted Alito as a member. Dujack confirmed to FOXNews.com late Friday that he was no longer testifying, but said he could not elaborate. A...

Alito Colleagues Come To His Rescue

The Democrats on the Senate Judiciary may have bitten off more than they can chew in their attempts to smear Samuel Alito. In a surprise move, Alito's colleagues on the appellate bench will testify on his behalf as character witnesses, expecting to rebut a series of witnesses that do not know Alito but will attempt to hijack (or is that Dujack) the confirmation hearing in its final days: In an unusual move, several federal appeals court judges intend to testify as Republican-sponsored witnesses next week at Senate confirmation hearings for their fellow jurist, Supreme Court nominee Samuel Alito. "They will testify about his approach to judging, as to whether he has an agenda, whether he is ideological, whether he pushes any specific point of view," Sen. Arlen Specter (news, bio, voting record), R-Pa., said Friday. Specter will wield the chairman's gavel at the Judiciary Committee hearings. ... Republicans disclosed their...

January 7, 2006

Ramblin' Man Bares All

The First Mate and I completed the first leg of our Judiciary Tour today, flying into Washington DC and driving to Philadelphia to report on the Justice Sunday III rally nearby on Broad Street tomorrow evening. I'll be live-blogging the event while the FM soaks up the atmosphere inside. We're going to try to squeeze in a visit to Independence Hall and the Betsy Ross House tomorrow morning, if possible, but it's going to be tight. In the spirit of full disclosure, CQ readers should know that my flight and my room expenses have been covered by the Family Research Council. I'm neither rich enough nor fortunate enough to travel without checking the finances first, and they want to have bloggers play a major role in debating the effectiveness of their approach. No one has asked me to endorse or shade my opinions in return for this -- in fact,...

Alito's Former Pupil Defends Him In The NYT

Liberal trial attorney Caren Dean Thomas has some advice for her fellow Democrats regarding the nomination of Samuel Alito to the Supreme Court, advice she offers in the opinion pages of the New York Times today: The president took the high road on this nomination. He juggled his politics and his public relations, and while I don't like either, I have to be grateful for the quality of lawyer, and individual, who emerged as the nominee. We have to decide whether the unfortunate tradition begun with Robert Bork's nomination should be continued indefinitely or whether, with the wisdom of hindsight, we exhume it only when absolutely warranted. Liberals among us have got to get real - to press for the finest jurists a conservative administration is willing to offer, and to spend our capital in that pursuit. Unlike the nutcases like Stephen Dujack that Democrats have scraped out from under...

January 8, 2006

Justice Sunday III: The Pre-Show

We're all here at the Greater Exodus Baptist Church in Philadelphia, preparing for the start of Justice Sunday III. The bloggers are all here on hand, the church has completed its security sweep, and our wireless looks terrific. I'm joining La Shawn Barber, Right Wing Sparkle, and Stacy Harp (as well as the First Mate) discussing the earlier church service. We're prepping for the press conference and having a blast. I even ran into a little protest while putting my car permit on the dashboard. I ran into Joey Steel from World Can't Wait, which wants to warn the world of the impending theocracy that George Bush wants to impose on the US. Mr. Steel seemed particularly incensed that the Family Research Council has selected a primarily African-American church to stage JSIII -- as if the church itself didn't choose to support this cause themselves. He seemed non-psychotic, so I...

Justice Sunday III: Press Conference

3:01 ET - Activity has started to build in the media room at the Greater Exodus Baptist Church. It doesn't appear to be centered around the food table as it has been for the past hour, so it looks like we might get going soon ... 3:02 - Yeah, I know, the bloggers got to the table first, but that's the New, Younger, More Nimble Media for you ... 3:02 - Start is delayed for ten minutes due to a sound issue. Attention returns to the free food. 3:12 - Problem solved; we'll start in three minutes. 3:18 - Tony Perkins starts (President, FRC): Congregation excited about the opportunity to host JSIII. Runs down the list of grievances that "present a clear and present danger" to the exercise of free religion. Explicitly denies that he wants to impose a theocracy on the US. 3:23 - Dr. Herbert Lusk says the...

JSIII: The Protest

The assorted bloggers decided to take on the throng of protestors outside the Greater Exodus Baptist Church around 5:30 this afternoon, so the four of us trekked across the street in the 30-degree weather to talk to all five of them. Actually, when we started, only three protestors stood across the street from the church, but two more joined in once we got there. Stacy and Sparkle got photos and LaShawn got audio of the casual interviews, while I just more or less chatted with them. They represented no organization, just themselves, although they had laser-print signs that they obviously made at home. The first three all seemed very young, and two of them had little to say about the event other than they "hated those people" (the Christians, not specifically the GEBC). One of them appeared somewhat passionate about his protest, but he still mostly talked in slogans. His...

JS III: The Warm-Up

We're listening to the choir (and watching them now on the live feed from the media center), and I can at least promise potential viewers that the music is going to be better than JSII. Not to denigrate the efforts of the last event, but the music tended far too much to the tame. The choir here has already sung a couple of heart-stirring songs, and this is just warm-up. We have the schedule in front of us for tonight. This will be a shorter program than the marathon that JSII became. Senator Santorum will speak at around 7:04 pm ET, but I'm looking forward more to Dr. Lusk at 7:20. He's taking eight minutes and I think he's been winding up all afternoon to deliver a blazing fastball tonight. He's warming up the crowd right now, but an audio problem kept it from coming into the media center. Dr....

JS III: The Event

7:02 - Dr. Lusk opens up the festivities on the same note that he left the crowd, and he gets the crowd on their feet to greet Tony Perkins. Perkins thanks congregations and pastors around the nation that have tuned in for the JSIII event. 7:04 - The protestors have swelled to about 75 or so and have pushed into traffic, drawing attention from the Philadelphia police department. ACT-UP appears to comprise most of the additional protestors, who have brought the usual effigy of George Bush. 7:05 - Santorum notes that William Penn spent his life establishing religious freedom in Pennsylvania. He is focusing on judicial activism and the destructive, corrosive nature of it on representative democracy. He challenges the audience to answer "No!" to Democratic efforts to "drag the hearings into the gutter". Not a bad speech, really, and pretty darned short. 7:13 - Martin Luther King's neice, Dr....

Back To DC

The First Mate and I made the drive from Philly to DC just after the Justice Sunday event closed up. I have to tell you, the people at the Greater Exodus Baptist Church did a marvelous job hosting and securing the event; they put on quite a professional show. The FM and I also found our one-night stay at the Marriott Residence Inn in downtown Philly to be quite nice; the staff there went out of their way to keep asking if they could do anything for us and wishing us a nice vacation. (If they only knew ....) We did get a couple of hours this morning to see historic Philly, including a hansom carriage ride, the Liberty Bell, Independence Hall, and the Betsy Ross House. The latter attraction had a wonderful charm to it, and the people who play the characters on the tour took very good care...

January 9, 2006

RNC Blogger Forum: Hearing Live-Blog, Day 1

12:10 ET - We're under way with the hearing, and Arlen Specter is using his time to explain the process. He spoke about the "subtle minuet" surrounding the answering of questions by Senators. He says that Chief Justice Roberts' performance so far suggests that the court will not shift its political orientation. 12:13 - It appears that Specter is back on the reservation. He went out of his way to say that based on his conversations with Alito, the nominee would give proper consideration to stare decisis and noted the hysterical reaction by Planned Parenthood to the Souter nomination. 12:18 - Pat Leahy waited until his second sentence to mention Harriet Miers and her "forced withdrawal by a narrow faction" within the GOP. 12:21 - On the other hand, he waited until the 3-minute mark to mention the "disturbing memorandum" -- IOW, the cover letter he wrote for his resume...

RNC Blogger Forum: Alito's Statement

After a lengthy afternoon of pontificating Senators, we finally get to hear from the nominee himself for the first time. He seems very calm and reserved. He gives a self-deprecating joke to start about his approach to his confirmation, and then speaks movingly about his family. His father fought in WWII and became a teacher thanks to the kindness of someone in his community giving him a $50 scholarship. Alito also talks about the honor of representing the government, and of spending the last fifteen years as an appellate jurist, and commiserates with anyone who had to read through his hundreds of opinions ... Not much in terms of blockbusters in Alito's speech. The best part of it was its brevity, second only to his refusal to take himself so seriously....

January 10, 2006

RNC Blogger Forum: The Meaning Of Consensus

We're watching C-SPAN ahead of the start of the hearings this morning, and Bruce Shapiro of The Nation is appearing for call-in questions -- and not surprisingly, he's coming up with some eyerolling pronouncements. When a self-confessed former "radical feminist" made the excellent point that since half of the American people describe themselves as "pro-life", it hardly puts Alito out of the mainstream if he has the same beliefs. She challenged Shapiro to respond as to why his magazine and the Left react so hysterically whenever a pro-life candidate comes up for confirmation. Shapiro responded that he wouldn't want a jurist to rise to the Supreme Court that would throw out decades of "consensus". Consensus? The entire problem with Roe is that it kept abortion from going through the political process to reach some sort of consensus. It froze the argument in amber by making it an absolute right --...

RNC Blogger Forum: Day 2 Live Blog, Specter & Leahy

9:36 - Alito has already agreed with Griswold and Eisenstadt, and now speaks to the generalities of stare decisis and the specific of "reliance". It sounds like he's going to take the same position as Roberts did. Specter keeps cutting off his answers, but Alito is remaining firm that the Court should not "sway in the wind of public opinion at any time," but stay focused on the law. 9:46 - "Super precedent" as a term is like laundry detergent. Specter meanwhile pulls out the same chart he used in the Roberts hearing to argue for upholding Roe. 9:49 - Alito emphasizes that he has to put aside the work he did as an attorney and an advocate once he puts on the judge's robes. Alito notes that he held the view that the Constitution did not hold a right to an abortion in 1985, but his views at this...

RNC Blogger Forum: Senator John Cornyn

11:20 - Senator John Cornyn, TX. So far, hearings have gone well, done a good job of laying out his family history. Observing the Ginsburg standard, he should reserve his judgment on specific issues, but he has answered questions extensively. Good common-sense answers have shown Alito obviously well-qualified for the position. 11:22 - Bloggers force the MSM to deal with "inconvenient facts"; we're making a difference in coverage, which he feels is critical. 11:23 - Historically, presidential nominees have had the presumption of confirmability. Democrats want to change that to a presumption of non-confirmability, which sets up a double standard for Bush's nominees. 11:26 - This is turning into a trial, with everyone playing cross-examiner. 11:27 - Almost all of the Democratic resistance is fund-raising; Schumer is the chair of the DSCC and can't afford to do anything but obstruct. 11:28 - The process isn't designed to elicit information; it's...

RNC Blogger Forum: Operation Outcry

We got a visit from Operation Outcry, which represents 1900 women who have come forward after having had an abortion and regretted it afterwards. They have arrived at the Capitol to support Alito and other jurists that rule on law instead of policy. They don't base their support on any presumed promise of Alito overturning Roe, but just their belief that he will rule on Constitutional issues on the basis of the law. Julie Thomas, Georgia - National Leader: spoke about her personal experience with abortion and how it impacted her family life. She says that women are deceived into having abortions by the demeaning of the foetus as something other than human, and tell them that it won't have any emotional impact on their lives. She says that their guilt drives them to destructive behavior later in life as they run away from their pain and shame. Mark Noonan...

RNC Blogger Forum: Alito's Clerks

We had a chance after meeting with Senator Hatch to talk with three former Alito clerks and get their reactions to the attacks on their former boss. Jeff Gottlieb, a Democrat, thinks that the attacks have been effectively defused. When asked if the attacks were fair, Gottlieb says, "Probably not, no." Reg Brown, a former White House staffer, says the attacks may wind up working to Alito's benefit. "Now, there's an air or presumption of untruth [to attack reports]," due to the wild nature of what they're alleging. Michael Park, another Alito clerk, says that the thin nature of these issues show that Alito can't be challenged on his qualifications, job performance, and judicial temperament. Brown: "When Bork was nominated, they attacked Robert Bork's America," he notes, but now they can't attack conservatism itself as before. Jeff Lord, author of The Borking Revolution: "We know now how this works: the...

RNC Blogger Forum: Alito's Contemporaries

Former Attorney General Robert Del Tufo employed Samuel Alito as a prosecutor. He said that Alito distinguished himself as a litigator as well as a researcher and preparer of briefs. His work consisted of working on organized-crime and white-collar fraud, work that requires the management of teams to get anything accomplished. Del Tufo prosecuted two Russian spies, and Alito did some interesting work in handling questions of diplomatic immunity. He certainly handled some high-profile cases. Since then, Del Tufo has been practicing law in the private sector but has followed Alito's career closely. "His approach to issues demonstrates his scholarship, doing the research, studying the law to see how it pertains to the issue before him, and using it in a thoughtful way," he says. "Labels don't mean anything with Alito." Del Tufi says careful is a good word in describing Alito, as well as a "fine human being." Del...

RNC Blogger Forum: Day 2 Live Blog, Feingold

I've been watching the testimony on Alito most of the day, or at least in between visits from the luminaries I've highlighted so far today. Most of this has been rather inconsequential, except possibly for the Kennedy portion (transcript here). Kennedy remains in his usual bloviating status, full of sound and fury signifying dementia. However, Russ Feingold slipped over the transom to outright insulting -- perhaps most egregiously because he doesn't present such a ridiculous figure as Kennedy obviously cuts. Feingold did everything but call Alito a puppet mouthing the words of his White House masters. Alito got mad for the first time, managing to keep it under control, but protested that he had been a judge for fifteen years and he didn't need anyone to feed him answers to anyone's questions. Feingold responded by changing the subject ... to Vanguard. What a jerk....

Alito 1, Schumer -35

I wish I had an automatic transcript device. Judge Alito just blew Chuck Schumer out of the water on abortion. After holding up his Robert ByrdTM mini-Constitution, Schumer demanded several times whether he still believes as he wrote in his 1985 memo that he doesn't think abortion has Constitutional protection. Alito demurred each time, saying that he would have to weigh each case in light of its facts and its reliance on precedence. Like the bad lawyer he has proven himself to be, Schumer asked one question too many: SCHUMER: Does the Constitution protect the right to free speech? ALITO: Certainly it does. That's in the First Amendment. SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera? ALITO: Because answering the question of whether the Constitution provides...

January 11, 2006

Senate Blogger Forum: Day 3 Live Blog - Durbin, Brownback

Dick Durbin gets to start things off, and he starts by going into Brown v Board of Education and Griswold, saying that both rely on interpretations of the Constitution. 9:36 - He misstates Schumer's question. Schumer asked if Alito believed in a Constitutional right to an abortion. It's a small but important distinction. Alito notes that Brown is based on specific language in the 14th Amendment, and that Griswold isn't likely to come before the Court again. Abortion does not come up explicitly in the Constitution and will definitely come before the Court again. Durbin still doesn't seem to get it ... 9:47 - Durbin says that the government wants to "discourage" abortions, and reserve it for women whose lives are in danger. If we've had over 40 million women's lives in danger in 32 years, then America's females should escape our borders as soon as possible. As far as...

Senate Blogger Forum: Round 2, Specter

The second round of questioning for the Alito hearing has already begun with Arlen Specter starting off with the shortened 20-minute timeslice, where the prizes double and the game can get really exciting. Oh, sorry, that's Double Jeopardy. This second round will likely focus on the same questions that came up in the first round, as Pat Leahy's comments at the beginning of today's festivities indicate: Democrats on the Senate Judiciary Committee said Wednesday they were troubled by what they see as inconsistencies in Supreme Court nominee Samuel Alito's answers on issues ranging from voting rights to ethics to his membership in a conservative organization. On the third day of confirmation hearings, Sen. Patrick Leahy (news, bio, voting record) of Vermont said Democrats would press President Bush's choice to replace retiring Justice Sandra Day O'Connor on several statements he made in his earlier testimony. "A number of us have been...

Senate Blogger Forum: Former Alito Clerks, Group 2

We've begun to meet with three more of Judge Alito's former law clerks: Jeff Wasserstein, a liberal Democrat who also reads CQ -- and so is one of my favorites thus far -- David Moore, and Keith Levenburg. Mr. Levenburg starts off by talking about the benefit of adding Alito to the Supreme Court as he is not ideologically driven, and has a broad understanding of business law. Mr. Moore says that ideology is not something he brings to his chambers. He fully considers the facts before reaching his decisions. In a fascinating coincidence, the three served Alito during various partisan crises: Bush v Gore, the Iraq War, and the Monica Lewinsky scandal. All three said that Alito never revealed his thoughts or feelings on a partisan basis, although the clerks themselves felt free to express themselves in social settings around the judge. Mr. Levenberg does not see a lack...

Senate Blogger Forum: Day 3 Arrival (Update And Reconsideration)

Please see the update below. When we arrived today at the Dirksen Office Building, we saw a disturbance outside the entrance -- and I turned to the First Mate and groaned, "Oh, man, we're going to have to push through some protestors." To my surprise, the protest turned out to be a pro-Alito rally, with most of the people wearing red shirts and chanting pro-Alito messages. It struck me as somewhat odd, though well intentioned. Chanting slogans just amounts to tribalism or cheerleading. I would have been more impressed by someone standing on a ladder, stating why Alito should be confirmed. Chanting "Alito" in a song first written about a dog named Bingo invites itself to satire, and deservedly so. It's great that conservatives get together to rally themselves and generate enthusiasm and energy. However, when the world is watching, we should take care to use that opportunity to show...

Senate Blogger Forum: Kennedy (McCarthy) Redux

I'm not going to live-blog the bloviations from Ted Kennedy in great detail, but I have to add something about Kennedy's pulling out sentences from magazines and newspapers and demanding to know if Alito had ever read them. Isn't this the same kind of treatment that Democrats complain that the PATRIOT Act would do to Americans -- hold them responsible for their reading material? None of this has anything to do with Alito's record as a judge, but because he mentioned the Prospect and National Review as magazines he may have read, now he's being held responsible for every word they have ever published. I read the New York Times, and I hardly agree with anything they write. Now Kennedy wants to subpoena the records of CAP -- and Specter is getting irate about the attitude of the Senator. Someone needs to explain to Kennedy that subpoenaing the records of...

Continue reading "Senate Blogger Forum: Kennedy (McCarthy) Redux" »

Senate Blogger Forum: Orrin Hatch

I asked Senator Hatch about the shameful performance by Ted Kennedy and the behavior that smacks of McCarthyism. Hatch won't take it that far, but says that smears are the only tools the Democrats have left. "What is the CAP issue all about? Painting Alito as a racist and a sexist. Anyone who has watched him during this hearing knows that's ridiculous." Hatch on the demand for an executive session: "It's another one of the bush-league approaches for delay." One of the bloggers asked if Kennedy has a higher ethical standard than the ABA on recusals? "I'm sure he thinks he does. I'll leave it at that." "He has 5,000 cases on which he's ruled, and this is the best they [Democrats] can do? Vanguard and CAP?" Senator Hatch believes now that they will have to go to a third round of questioning due to the Democratic attacks that have...

Senate Blogger Forum: Jon Kyl

Meeting with Jon Kyl of Arizona -- the article that Senator Kyl mentioned on the floor that showed the threat to the ROTC came out in February 1985, which would tend to support Alito's recollection. And all of this is off the point -- "they keep plowing the same old ground," and he's not going to talk about his Constitutional views on open questions. I asked Senator Kyle about the analogy between Kennedy's request to subpoena the private papers of a man involved in founding CAP and hauling all of the ACLU's records into the committee during Ginsburg's hearing. He agreed with my analogy, and noted that Kennedy would have been the first to decry an invasion of privacy. He also said that those kinds of subpoenas would have a chilling effect on political speech. Most disappointing part of the process: "The innuendos today ... I can't believe that the...

Senate Blogger Forum: The CAP Trap

Senator Arlen Spector just announced that the William Rusher papers will now be made available to the committee voluntarily by Rusher himself, removing the need for the subpoena that Ted Kennedy demanded. Word around the Capitol has it that the New York Times did an extensive research project on the Rusher papers -- and found absolutely nothing. Kennedy is about to come up with major egg on his face when Rusher's papers turn into Al Capone's vault. In my mind, it still sets a bad example to use someone else's papers to look for smears on a candidate that has no connection to the owner of the records. Perhaps it's marginally eased by the lack of a subpoena, but the notion that somehow Alito can be disqualified by having read the Prospect or the National Review is exactly what the Democrats have argued against in their opposition to the PATRIOT...

January 12, 2006

At Long Last, They Have No Shame

I left blogger row yesterday reluctantly, just as the outrageous actions of the Democratic caucus on Judiciary hit its nadir. The smear tactics trotted out to derail the nomination of Judge Alito over the past few weeks had hit their nadir when Ted Kennedy demanded a subpoena for the William Rusher papers to determine whether the National Review publisher may have written something about CAP and Alito. Never mind that this was an entirely off-subject line of questioning from the beginning; Alito's own hiring record proved that he has no animus towards equal opportunity for women or minorities, and the Prospect itself had a woman (Laura Ingraham) and a minority (Dinesh D'Souza) as its editors in chief. Never mind that Alito has had decades of dedicated public service with an impeccable record of excellence, including fifteen years on the appellate court. Never mind that he has not been called before...

Al Capone's Vault, Take 2

The Democrats on the Senate Judiciary Committee wound up looking like the group of boobs that their behavior has demonstrated them to be when the vetting of the William Rusher papers elicited no mention whatsoever of Samuel Alito in connection to Concerned Alumni of Princeton or anything else that could paint him as the bigot that Democrats insinuated he was: Earlier, the panel's chairman announced that staffers had examined records of a controversial Princeton University alumni group once cited by Alito in a job application, but had found no mention of Alito. While the alumni group appeared to fizzle out as an issue in the hearings, Sen. Charles E. Schumer (D-N.Y.) told Alito that Democrats continue to be disturbed by some of his judicial views, making it "very hard to vote yes on your nomination." Opening the fourth day of the confirmation hearings, Sen. Arlen Specter (R-Pa.), the committee chairman,...

You're Not Your Brothers, Senator Kennedy

Today's hearing wrapped up the testimony of Samuel Alito for his confirmation to the Supreme Court. After a short executive session, the committee came back into public session to take testimony from other witnesses. They began with a remarkable series of judges, colleagues of Judge Alito, who took the unprecedented step of defending their peer from the mudslinging that came from the Judiciary Committee this week. One of the judges that came forward, and one of the first to testify this afternoon, was Ruggeri Aldisert, whose appointment dates back to the Johnson administration. Aldisert served in the Marine Corps in World War II and has spent 40 years on the bench. Aldisert also reminded the committee about who put him on the federal bench: ALDISERT: When I first testified before this committee in 1968, I was seeking confirmation of my own nomination to the federal circuit court. I speak now...

The Incredible Cluelessness Of Senator Schumer, Continued

If Ted Kennedy provided the most bombastic example of foolishness of the Alito testimony, his colleague Chuck Schumer comes in a close second as a fool of the first order. This last day of testimony provided plenty of examples, but I will be happy to show a couple of them -- one with Alito, and the other later in the day with the ABA. In the first, Schumer apparently had his mind set on catching Alito in a contradiction, and wanted to move in for the kill. On the video, viewers could see Schumer's agitation level rise as his hands flew all over the place and his over-the-glasses stare sharpened considerably. He tried to make the case that he allowed the government to make new arguments on appeal when he earlier denied the same process to a "retarded" plaintiff -- but as Alito pointed out, the difference was a Congressional...

January 13, 2006

WaPo Exercises Relativity, Scolds Both Sides For Hearing

The Washington Post editorial board did what it usually does when the Democrats stage outrageous behavior -- find a way to scold Republicans in order to allow themselves to feel good about damning the Democrats as well. In today's unsigned editorial, the board knocks the Republicans for playing fatuous defense counsels while the Democrats engaged in scurrilous character attacks: The hearings were less illuminating than one might have hoped. Democratic senators often seemed more interested in attacking the nominee -- sometimes scurrilously -- than in probing what sort of a justice he would be. Even when they tried, their questioning was often so ineffectual as to elicit little useful information. Republican senators, meanwhile, acted more as fatuous counsels for the defense than as sober evaluators of a nominee to serve on the Supreme Court. On both sides, pious, meandering speeches outnumbered thoughtful questions. And the nominee himself was careful, as...

January 15, 2006

Even The Media Gives Up On The Filibuster

Two of the most important liberal newspapers editorialize against using a filibuster on the confirmation of Samuel Alito to the Supreme Court. The Los Angeles Times takes the opportunity to call out one specific Democratic member of Judiciary while reminding his party that elections have consequences -- and one of them is the ability to shape the federal bench: WHO SAYS YOU DON'T LEARN much from judicial confirmation hearings? We learned an awful lot about Sen. Joseph R. Biden Jr. (D-Del.) last week. He was among the senators who seemed to use more of their time lecturing instead of listening to the Supreme Court nominee, Judge Samuel A. Alito Jr. ... Alito would not have been our choice to replace Sandra Day O'Connor on the court. It is understandable that, unlike now-Chief Justice John G. Roberts Jr., he may not win many Democratic votes. Conversely, there are no legitimate grounds...

Feinstein: Forget The Filibuster

Dianne Feinstein stuck a fork into Democratic plans to delay the Alito confirmation earlier today, officially running up a white flag in the Democrats' war on judicial nominations for the time being. The California Senator and one of the few Judiciary Democrats to not embarrass herself during the hearings disregarded the advice of her leadership and declared that Samuel Alito deserves his up-or-down vote from the full Senate: A Democrat who plans to vote against Samuel Alito sided on Sunday with a Republican colleague on the Senate Judiciary Committee in cautioning against a filibuster of the Supreme Court nominee. "I do not see a likelihood of a filibuster," said Sen. Dianne Feinstein, D-Calif. "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court." She said she will not vote to confirm the appeals court judge, based on his conservative record. But she...

January 16, 2006

The Subtext Of The Alito Hearings

Both the New York Times and Washington Post attempt to capture the subtext of the Alito confirmation hearings, with the former trying to tackle the question seriously and the Post taking a more playful attitude with the question. The New York Times's analysis concludes that the dubious spectacle has created much more room for debate on the legal status of abortion than either side thought possible after the 2004 election: Just a little over a year ago, senators of both parties said publicly that it would be almost impossible for a Supreme Court nominee who disagreed openly with the major abortion rights precedents to win confirmation. ... The shift in the politics of the abortion rights issue was clear early in the hearings. On the first day of questioning, when the parties laid out their arguments and public opinion began to form, only two Democratic senators, Ms. Feinstein and Charles...

January 17, 2006

That's One

Ben Nelson of Nebraska became the first Senate Democrat to declare himself in support of Samuel Alito for confirmation to the Supreme Court. Nelson, who has to defend his seat this year in a state that went to Bush by over 30 points in 2004, will probably not start an overwhelming trend but will prevent a filibuster nonetheless: Ben Nelson of Nebraska, a moderate voice in the U.S. Congress, on Tuesday became the first Senate Democrat to announce his support for conservative Supreme Court nominee Samuel Alito, who is expected to be confirmed later this month by the full Republican-led Senate. "I have decided to vote in favor of Judge Samuel Alito," Nelson said in a statement issued by his office. "I came to this decision after careful consideration of his impeccable judicial credentials, the American Bar Association's strong recommendation and his pledge that he would not bring a political...

January 23, 2006

It's All About Ideology For The Left

Today's New York Times editorial implores the Senate to vote against the confirmation of Judge Alito to the Supreme Court once debate starts this week in the Senate. Like the rest of those who have come out in opposition to his confirmation, the only basis for their rejection is ideological, transforming the process into an election rather than an appointment: If Judge Samuel Alito Jr.'s confirmation hearings lacked drama, apart from his wife's bizarrely over-covered crying jag, it is because they confirmed the obvious. Judge Alito is exactly the kind of legal thinker President Bush wants on the Supreme Court. He has a radically broad view of the president's power, and a radically narrow view of Congress's power. He has long argued that the Constitution does not protect abortion rights. He wants to reduce the rights and liberties of ordinary Americans, and has a history of tilting the scales of...

January 26, 2006

The Massachussetts Comedy Duo Call For Filibuster

Like a couple of bad comedians who remain clueless about their timing, the Senators from Massachussetts teamed together to call for a filibuster even while two more Democrats announced their support for Samuel Alito, one of whom scolded the senior member of the comedy team for conducting an "outrage and a disgrace" in the Judiciary Committee hearings: Leading Democrat Senators John Kerry and Ted Kennedy said they would try to block Supreme Court nominee Samuel Alito by preventing a vote on him with a filibuster. Former presidential candidate Kerry announced from Switzerland that he wanted to block President George W. Bush's conservative nominee with the stalling tactic to prevent "an ideological coup" on the high court. "Judge Alito will take America backward, especially when it comes to civil rights and discrimination laws," Kerry said is a statement. Kennedy, Kerry's fellow Massachusetts senator, also called for a filibuster on Alito when...

January 27, 2006

Yodeling Past The Graveyard

John Kerry has plunged his party into an internecine squabble this afternoon by pushing for a filibuster on Samuel Alito's confirmation, a sure losing strategy even with Dianne Feinstein's late reversal on her pledge to give Alito an up-or-down vote. The pandering to Planned Parenthood, NARAL, and People For The American Way has dragged Harry Reid and Chuck Schumer back to the parliamentary procedure they'd hope to save for a possible retirement by John Paul Stevens or Ruth Bader Ginsburg and set off a public argument over the foolishness of fighting lost causes in an election year: Long-smoldering Democratic dissension flared openly Friday as liberals sought support for a last-minute filibuster of Supreme Court nominee Samuel Alito against the advice of leaders worried about a backlash in the 2006 elections. .... Two of the party's Senate leaders, Harry Reid of Nevada and Charles Schumer of New York, privately made clear...

January 30, 2006

The Reluctant Filibusterers

Senate Democrats went to the airwaves yesterday to express their dissatisfaction with Samuel Alito's nomination, but also with the filibuster that their base has pushed them into attempting. So-called "rock star" Barack Obama of Illinois blamed Democrats for an overreliance on procedural tactics and an inability to convince voters of the erosion of their "values": "We need to recognize, because Judge Alito will be confirmed, that, if we're going to oppose a nominee that we've got to persuade the American people that, in fact, their values are at stake," Obama said. "There is an over-reliance on the part of Democrats for procedural maneuvers," he told ABC's "This Week." ... Obama cast Alito as a judge "who is contrary to core American values, not just liberal values." But Obama joined some Democrats, including Minority Leader Harry Reid of Nevada and Charles Schumer of New York, in expressing his unhappiness with the...

The Sad, Pathetic State Of Filibusterers

I don't know if this site actually has any influence on the Senate Democratic caucus, but when people start imploring politicians to exploit wounded soldiers for partisan gameplaying, they've lost all credibility. It's even worse when they celebrate an opposition Senator's injuries in a car accident that will keep that member from casting a vote. If your cause boils down to tactics such as these, then everyone associated with it should be embarrassed by the connection. Hopefully, an intrepid news crew will wait outside of Walter Reed to see any Democrats inclined to endorse methods such as those urged by this blogger....

The 25% Mainstream

The Left saw the effects of the true mainstream on the Senate Democratic caucus this afternoon, as the realists finally decided to put an end to the filibuster lunacy once and for all. Nineteen Democrats split away from twenty-four who took obstructionism to its bitter end, ensuring an end to debate on Judge Samuel Alito's confirmation to the Supreme Court and a final roll-call vote tomorrow morning: In the end, only 24 of the chamber's 44 Democrats went along with the filibuster, a maneuver allowed under Senate rules to block a vote by extending debate indefinitely. It was also supported by the chamber's lone independent, Sen. Jim Jeffords of Vermont. Arguing against cutting off debate, Sen. John Kerry -- who spearheaded the filibuster effort with his fellow Massachusetts Democrat, Sen. Ted Kennedy -- said Alito's record during his 15 years on the 3rd U.S. Circuit Court of Appeals has given...

January 31, 2006

How To Tell When You're Over

You're a former presidential candidate from one of the major political parties and a member of the Senate. You've called for a party-line vote on a major issue against the opposition, investing your reputation and your credibility into the effort. However, you can only convince half of your caucus to vote with you, and even half of those tell reporters what a stupid idea it was from the outset. What happens afterwards? Kerry: Am I done? Yes, Senator, you're done. We only wish you'd realize it. (h/t: The Corner)...

February 2, 2006

Alito: More Independent Than Ted Kennedy

It didn't take long for Justice Samuel Alito to make news from the bench, although the news is different than either Democrats or Republicans would have predicted. Alito voted yesterday to uphold a stay of execution for a Missouri death-row inmate, aligning himself for his first vote with Ginsburg and Stevens rather than Thomas and Scalia: New Supreme Court Justice Samuel Alito split with the court's conservatives Wednesday night, refusing to let Missouri execute a death-row inmate contesting lethal injection. Alito, handling his first case, sided with inmate Michael Taylor, who had won a stay from an appeals court earlier in the evening. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas supported lifting the stay, but Alito joined the remaining five members in turning down Missouri's last-minute request to allow a midnight execution. Not being a supporter of the death penalty myself, this ruling doesn't bother me...

March 1, 2006

Asleep On The Job

Apparently, the duties of oral arguments at the Supreme Court no longer engages Justice Ruth Bader Ginsburg. The controversy over Texas redistricting apparently didn't generate enough interest to keep her attention (h/t J. Crater): The Supreme Court had put the Texas cases on the fast track, scheduling an unusually long two-hour afternoon session. The subject matter was extremely technical, and near the end of the argument Justice Ruth Bader Ginsburg dozed in her chair. Justices David Souter and Samuel Alito, who flank the 72-year-old, looked at her but did not give her a nudge. The court has struggled in the past to define how much politics is acceptable when states draw new boundaries to reflect population shifts. I know the idea of a two-hour meeting might seem long to AP reporters and some jurists, but in the real world, we have business meetings that go on all day. Most of...

March 24, 2006

A Saad Day

The ramifications of the Gang of 14's Memorandum of Understanding continue to impact the lives of those whom President Bush nominated to the federal appellate bench. After his nomination languished for months after the agreement, Henry Saad has withdrawn his nomination, a forgotten victim in a political process gone awry: Henry W. Saad, one of President Bush's appeals court nominees blocked by Senate Democrats, withdrew his name from consideration, a presidential aide said yesterday. Democrats have accused Saad, a Michigan appeals court judge, of being hostile to employment-discrimination claims and lawsuits by consumers. ... Saad's nomination to the Cincinnati-based U.S. Court of Appeals for the 6th Circuit was submitted to the Senate in January 2003, and he was renominated last year. His nomination was one of 10 blocked by Democrats, who used the filibuster, which allows unlimited debate, to prevent a Senate vote. This withdrawal should embarrass the United States...

March 27, 2006

A DQ For Scalia? (Updated)

First reported on SCOTUSBlog and now in next week's Newsweek, Justice Antonin Scalia gave extensive comments on matters that the Supreme Court will have to consider when it reviews the 4th Circuit's decision on Hamdan v Rumsfeld over two weeks ago in Switzerland. Scalia's assertion that combatants captured on the field of battle should expect no access to the courts appears to be cause for him to recuse himself from consideration of Hamdan: The Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to try Guantánamo detainees in special military tribunals with limited rights for the accused. But Justice Antonin Scalia has already spoken his mind about some of the issues in the matter. During an unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia dismissed the idea that the detainees have rights under the U.S. Constitution or international...

June 15, 2006

Government Has Broad Powers To Detain Non-Citizens Indefinitely: Federal Court

In a ruling that affirms executive branch power in wartime, a federal judge ruled yesterday that the government has broad powers under immigration law to detain non-citizens indefinitely, and to do so on a wide variety of criteria. This ruling deals a strong blow to a class-action effort by Muslims rounded up after the 9/11 attacks, who claimed that the US violated their rights to due process: A federal judge in Brooklyn ruled yesterday that the government has wide latitude under immigration law to detain noncitizens on the basis of religion, race or national origin, and to hold them indefinitely without explanation. The ruling came in a class-action lawsuit by Muslim immigrants detained after 9/11, and it dismissed several key claims the detainees had made against the government. But the judge, John Gleeson of United States District Court for the Eastern District of New York, allowed the lawsuit to continue...

June 16, 2006

Knock, Knock!

The Supreme Court ruled that evidence collected on a valid search warrant can be admitted in court, even if the officers did not knock on the door to announce themselves at the time of the search. The ruling narrows the exclusionary rule which normally would render invalid any evidence arising from a search with any defect, a limit that will have civil libertarians seeing red: Evidence found by police officers who enter a home to execute a search warrant without first following the requirement to "knock and announce" can be used at trial despite that constitutional violation, the Supreme Court ruled on Thursday. The 5-to-4 decision left uncertain the value of the "knock-and-announce" rule, which dates to 13th-century England as protection against illegal entry by the police into private homes. Justice Antonin Scalia, in the majority opinion, said that people subject to an improper police entry remained free to go...

June 28, 2006

Mixed Bag In Texas Redistricting Case

The Supreme Court handed down a moderate victory for Texas Republicans, ruling that states can redistrict at any time, and that the redistricting plan did not violate the Constitution. The court did rule, however, that the Texas legislature must redraw one district, as the new boundaries unfairly deprived Hispanic voters of political power: The Supreme Court on Wednesday upheld most of the Texas congressional map engineered by former House Majority Leader Tom DeLay but threw out part, saying some of the new boundaries failed to protect minority voting rights. ... At issue was the shifting of 100,000 Hispanics out of a district represented by a Republican incumbent and into a new, oddly shaped district. Foes of the plan had argued that that was an unconstitutional racial gerrymander under the Voting Rights Act, which protects minority voting rights. On a different issue, the court ruled that state legislators may draw new...

June 29, 2006

So Much For Trials

In reviewing the opinions of the Supreme Court in their Hamdan decision today, it seems pretty clear what action the Bush administration will take in the future with the detainees of the war on terror. More to the point, we know what action they will not take, at least if we rely on Justice Stevens' opinion. On page 80, in section VII of his opinion, Stevens writes: We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would causegreat harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for...