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Recent News 8/15/08 (from The Committee for Justice) Today's Wall Street Journal criticizes an American Bar Association resolution, adopted earlier this week, which calls for the use of "bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community" to recommend nominees to the federal courts. The resolution's objective is "a less contentious judicial selection process," a goal we wholeheartedly support. However, even if one puts aside the quota-like "diversity" requirement, there is good reason to doubt that the recommendations of these commissions would be "bipartisan." As the Journal points out,
Exhibit number one is Missouri, which pioneered the commission system in 1940. As CFJ Executive Director Curt Levey described in a Human Events op-ed last year,
"All of which explains why states that use some version of merit selection are trying either to reform the system or ditch it altogether," the Journal notes. It also explains why the ABA's House of Delegates overwhelmingly voted for the resolution recommending that the system be used at the federal level. Just as the state system gives disproportionate influence to state bars, the ABA's federal proposal would give disproportionate influence to the ABA. That's reason enough to question the ABA's proposal. But the Journal points out that, in addition,
Ed Whelan and John Lott have done a superb job of documenting and quantifying the ideological bias of the ABA's judicial review panel (see links below). The Journal concludes that
We agree. Like many aspects of democracy, the current, constitutionally-envisioned method of selecting federal judges has its flaws - including the growing contentiousness of the process - but is better than the alternatives. Instead of changing the current system, some have suggested reducing its contentiousness by adopting bipartisan standards of timeliness and fairness that would prevent the indefinite obstruction of judicial nominees. The President suggested such standards in 2002 (see link below), but Senate Democrats balked. Sen. Arlen Specter introduced a similar proposal in 2004 (see S. Res. 327) and again in this Congress. We're inclined to support such standards as long as they're flexible enough to be waived by a super-majority of the Senate or Judiciary Committee, and as long as enforcement could be ensured regardless of which party controls the White House and Senate. Finally, Lawrence Hurley reports on the Obama campaign's response to the ABA resolution:
Voters didn't buy that explanation in 2004 and we doubt they're buying it now. LINKS: ABA resolution, Wall Street Journal editorial, Levey on the Missouri Plan, Ed Whelan on ABA bias, John Lott on ABA bias, President Bush's proposal, Obama campaign on the ABA resolution, ABA Journal on the resolution. 8/2/08 (from The Committee for Justice) With the Senate now gone for its August vacation and only a month-long session remaining before the election, it's time to start assessing the Democratic majority's performance on judicial nominations in this 110th Congress. The highest marks to go to Sen. Diane Feinstein, who incurred the wrath of liberal civil rights groups when her vote in the Judiciary Committee allowed 5th Circuit nominee Leslie Southwick to reach the Senate floor and be confirmed. It's hard to pick a single low point, but the following events are certainly in the running:
In other words, there's plenty for Sens. Reid and Leahy and other Democrats to be embarrassed about. But we suspect that when people look back on the issue of judicial nominations in the 110th Congress, the biggest embarrassment for Democrats - particularly Judiciary Chairman Leahy - will be the treatment of D.C. Circuit nominee Peter Keisler. Keisler has been praised for transcending politics while serving as an Assistant Attorney General and his confirmation is supported by the Washington Post, the Los Angeles Times, and leading legal scholars and practitioners. Even Senate Democrats and their staff privately express admiration for Keisler. Yet, by keeping him waiting two years and counting for a Judiciary Committee vote following a flawless August '06 committee hearing, Senate Democrats have proved incapable of transcending politics and the demands of the Left. Sen. Arlen Specter, Ranking Member of the Judiciary Committee, sums it up well in a Washington Times op-ed on Thursday, which focuses on Keisler's role in combating the politicization of the Justice Department that Senate Democrats have spent the last two years denouncing:
Specter goes on to note the IG's observation that Keisler even made "a personal appeal ... on behalf of [a DOJ] candidate who worked for Planned Parenthood," and concludes that "Those decrying ‘politicization' in the Justice Department should, with equal fervor, support Senate consideration of highly qualified judicial nominees who have demonstrated a commitment, even when no one was looking, to political impartiality and the rule of law. ... In a politically charged atmosphere, Mr. Keisler did the right thing. I hope the Senate Judiciary Committee will do the same." We know it's tempting for Democrats to block a nominee like Keisler whose stellar credentials make him Supreme Court material. And we are certainly aware that groups on the Left, like People for the American Way, have threatened that there'll be hell to pay if Keisler is confirmed. But Peter Keisler showed a lot of courage when he stood up against politicization of the Justice Department. So Democrats, how about showing a little courage yourselves? Besides, what will you say in the next Congress when people ask why this exceptional nominee, with support from across the ideological spectrum, was obstructed? But if shame isn't enough to motivate you, consider practical politics. As you look forward to the possibility of confirming Barack Obama's judicial nominees next year, while realizing that a filibuster-proof Democratic majority in the Senate is highly unlikely, wouldn't it make sense to end the 110th Congress with a touch of class and courage you can later point to? LINK: Sen. Specter's op-ed 7/28/08 (from The Committee for Justice)
So begins the cover story in this week’s National Journal, which analyzes what an Obama and McCain Supreme Court would look like. We focus here on the article’s observation that Barack Obama “exudes determination to move the [Supreme] Court sharply to the left.” That warning has been heard before, but the stature and nonpartisan reputation of the article’s author, former New York Times Supreme Court reporter Stuart Taylor, gives the warning added credibility. Taylor – who called the Bush Administration’s handling of enemy combatants “a global scandal” and accused the High Court’s conservative bloc of "colorblind Constitution absolutism” – is no conservative. The virtual certainty of an increased post-election Democratic majority in the Senate means that Obama is “far more likely [than McCain] to get the Senate to confirm just about anyone he chose,” says Taylor. As a result,
Taylor notes that Obama might “disappoint” some of his most fervent supporters by appointing a “moderate-liberal consensus-builder” to the Court. But that possibility rings hollow when Taylor reminds us that Obama cited former Chief Justice Earl Warren, the father of liberal judicial activism, “as a model for the kind of justice he would pick.” If we take Obama at his word, a likely pick would be Second Circuit Judge Sonia Sotomayor, who Taylor lists among “the most-talked-about prospects” for an Obama Supreme Court. A bright but ultra-liberal Hispanic woman, Sotomayor would allow Obama to check three boxes with a single pick. The mere mention of her name brings fear to in-the-know conservatives. Were Sotomayor to replace 88-year-old liberal Justice John Paul Stevens, the Court’s shift to the left would be muted. However,
That very real possibility should frighten conservatives all the more when they consider that
In fact, not much imagination is necessary, because Taylor lays out the possible agenda of an Obama Supreme Court. For easy reference, we have transformed Taylor’s “conservative nightmare” scenario into a Top Ten List (while retaining his wording). Top Ten Things to Expect from an Obama Supreme Court:
Of course, this “conservative nightmare” is a “liberal dream” for Obama's most enthusiastic supporters. It’s no wonder that the issue of judicial appointments looms large in this year’s race for the White House. LINK: National Journal cover story 7/18/08 (from The Committee for Justice) Yesterday marked the one-year anniversary of Bob Conrad’s nomination to the Fourth Circuit. Yet Judiciary Chairman Leahy has not allowed Conrad even a hearing. Those judicial nominees who have had hearings and await committee votes fared no better yesterday. Leahy did not include any of them on the agenda for yesterday’s Judiciary Committee meeting. In protest, the Republican members of the committee boycotted the meeting. They cited Democrats’ use of “fancy footwork … [and] every stalling tactic in the book” to block nominees, including “claiming that they are ‘too qualified’ and by citing a mythical ‘Thurmond rule’ that they previously admitted doesn’t exist.” (Sens. Grassley & Brownback respectively) But the most remarkable development of the day was Majority Leader Reid’s claim on the Senate floor that he “can’t ever remember going home” and hearing concern about the “judges problem.” Apparently, Sen. Reid doesn’t get around much. But we have a few suggestions about who he should talk to if he wants to more accurately assess voters’ concern with the judges issue. Reid should start with the citizens of the Fourth Circuit, who have been suffering with the substantial delays in justice caused by a vacancy rate of up to 33%, with some seats left vacant for the entire length of the Bush Administration. The 21 GOP Congressmen in the Fourth Circuit have had to plead with the Senate to take action because “excessive vacancies may be taking a serious toll on the administration of justice.” Next, Sen. Reid should talk to pollsters like Rasmussen, who found that GOP voters rank the appointment of Supreme Court justices as a more important presidential election issue than the war in Iraq, as well as the American Bar Association, which found that Americans, by an almost 2-to-1 margin, believe judicial activism “seems to have reached a crisis” (4 ABA Journal eReport 40, 9/30/05). Reid should also chat with his predecessor, former Majority Leader Tom Daschle, whose narrow 2004 loss is widely blamed on his obstruction of President Bush’s judicial nominees, an issue emphasized by his opponent. Or Reid could chat about the 2002 Senate races with Karl Rove, who said:
If Reid is still not convinced that voters care about judges, he should visit political analyst and professor Larry Sabato at the University of Virginia. Sabato found that the judges issue "was one of Bush's best issues in the campaigns of 2000 and 2004" (Congress Daily PM, 7/18/06). If he prefers to look ahead, Sen. Reid can consult his colleague Sen. Obama, whose campaign signaled the importance of the judges issue by instructing surrogates to remind voters of the difference between the judges he and McCain would appoint. Finally, Sen. Reid should ask Democrats on the Judiciary Committee why they support the Federal Judgeship Act, which would add 50 federal judgeships. The purpose of the Act, in Chairman Leahy’s words, is to “meet the needs of circuits and districts overwhelmed by growing caseloads.” (emphasis added). If Americans don’t care about the delays in justice caused by a shortage of sitting judges, then why are Reid’s colleagues planning to waste taxpayers’ money on new judgeships? Sen. Reid’s remarkable claim that his constituents don’t care about the “judges problem” came as part of his excuse for denying Republicans the floor time they wanted to discuss the pending vote on two New York district court nominees. Instead, Reid rushed their confirmation through before a debate could take place. Which leaves us wondering what Reid is so afraid of hearing. Perhaps it’s the latest figures from the nonpartisan Congressional Research Service, which show that Democratic obstruction has caused unprecedented delays in the judicial confirmation process. Relative to President Clinton, Bush’s circuit court nominee have waited 46% longer if confirmed, and more than twice as long if not confirmed (see link to chart below). LINKS: CRS chart; Judiciary Committee boycott; 4th Circuit Congressmen; Rasmussen survey; Rove on judges issue; Leahy on Federal Judgeship Act. 6/26/08 (from The Committee for Justice) Has Judiciary Chairman Patrick Leahy no shame when it comes to judicial nominees? We’ll find out in the coming months by watching whether he continues to deny a committee vote to D.C. Circuit nominee Peter Keisler, a former Assistant Attorney General at the Justice Department. Never mind that Keisler was nominated to the D.C. Circuit two years ago and testified to rave reviews at his Judiciary Committee hearing in August 2006. Sadly, we’ve become all too accustomed to such outrageous delays since Senate Democrats announced plans to block judicial nominees for purely ideological reasons back in 2001. The real test for whether the shame center in Leahy’s brain is still functioning is whether Leahy continues to block Keisler now that the former Assistant Attorney General has been praised by the DOJ Inspector General’s report for standing up to the very politicization of the Department that Leahy has spent the last year denouncing. Stay tuned as we wait to see whether Sen. Leahy will sink to a new low. For now, here are some thoughts on Peter Keisler and the IG’s report from Sen. Jon Kyl at today’s Judiciary Committee meeting and Collin Levy in today’s edition of the Wall Street Journal’s Political Diary. Senator Kyl (seconded by Sen. Specter):
Collin Levy, Political Diary:
6/20/08 (from The Committee for Justice) Anyone attending yesterday’s press conference for Fourth Circuit nominee Bob Conrad – sponsored by Sen. Specter and attended by Sens. Dole, Burr, Hatch, and Sessions – must have walked away shaking their head over Senator Leahy’s refusal to give Judge Conrad a hearing. Not only is Conrad exceptionally qualified – he received the ABA’s highest rating and was overwhelmingly confirmed by the Senate when nominated to be a district court judge and a U.S. Attorney – but he also has clearly demonstrated the compassion that Democrats say they want in a judge. Witness one of the speakers at yesterday’s press conference, a former gang member who said Judge Conrad “could have given me a life sentence. Instead he came to meet my mother and father." Conrad helped the young man attend college and find a job. So why is Sen. Leahy refusing to give Judge Conrad a hearing? Leahy has charged that Conrad is “anti-Catholic,” but that’s all the more reason to hold a hearing in which Conrad can be confronted with the charge. Perhaps Leahy fears that he will look foolish if forced to repeat the charge. After all, as Quin Hillyer pointed out in the American Spectator yesterday, the charge is preposterous:
To understand why Leahy is blocking this terrific nominee, one need only look to the collection of ultra-liberal organizations that call the shots on which Bush nominees Senate Democrats will block. Richard Burr, one of Judge Conrail’s home state senators, summarized the problem in an interview with Media General:
Curt Levey, the Committee for Justice’s Executive Director, made the same point in more detail when addressing yesterday’s press conference. Here are his remarks:
Click here for a further discussion of the agendas of the groups opposing Judge Conrad. LINKS:Quin Hillyer’s article, Media General article, Sens. Burr and Dole on Conrad, Sen. Hatch on Conrad 6/13/08 (from The Committee for Justice) By now, you’ve likely heard plenty of analysis of whether yesterday’s Boumediene decision by the Supreme Court – striking down the heart of the Military Commissions Act of 2006 (MCA) and bestowing the right of habeas corpus on terror suspects held at Gitmo – was correctly reasoned. So take a break from that debate and consider a few related questions about judicial activism, the impact of Boumediene on the election, and the mystery of the missing conservative Supreme Court: 1) The Supreme Court showed little deference to Congress, which enacted the MCA by large majorities in both houses. So why aren’t liberal politicians, pundits, and law professors denouncing the decision as a case of judicial activism? After all, these are the same folks who have spent the last decade trying to redefine judicial activism by pointing to the Rehnquist / Roberts Court’s occasional lack of deference to legislative enactments, while eschewing the classic definition – that is, the elevation of a judge’s policy preferences above objective interpretation of statutory and constitutional law. The truth is that liberals’ newfound championing of judicial deference is short on sincerity. Instead, it’s a tactic based on discarding the honest but failed defense of the philosophy behind decades of liberal judicial activism in favor of a “so do you” argument. For more on this change in tactics, see here. 2) What happened to the “far right” Supreme Court that has been the subject of so much media attention and liberal hand-wringing of late? The truth is it never existed. While it’s certainly true that the Court has drifted right of the New York Times, the nation’s law faculty, and the typical elite cocktail party, the dirty little secret is that the Court is decidedly centrist when compared to the American people. The hysteria about the Court’s “right wing assault” on abortion, desegregation, and the separation of church and state has obscured the fact that large majorities of the public oppose partial-birth abortion and racial preferences and favor some role for religion in the public sphere. Had the Court ruled against enemy combatants yesterday, the decision would surely have been reported as further evidence of the Court’s “lurch to the right,” despite the fact that – outside the chattering classes – the American people express little support for expanding the rights of foreign terror suspects. 3) How will the Supreme Court issue play out in the upcoming election? In recent weeks, pundits have buzzed about how Democrats will use the prospect of several Supreme Court vacancies to scare Hillary Clinton’s supporters into the Obama camp. We’ll see how many women fall for the long-running “one vote away from back ally abortions” routine. But what’s clear is that recent events – particularly yesterday’s Boumediene decision and last month’s gay marriage edict from California’s highest court – have teed up the Supreme Court issue nicely for the GOP. Everyone seems to agree that the key to the presidential contest is winning the hearts and minds of Reagan Democrats. And there’s little doubt where that group stands on judicially-mandated gay marriage, expanded civil liberties for the guests at Gitmo, and the like. Given Obama’s pronouncements about the type of judges he would appoint, no exaggeration is necessary to raise the concerns of these swing voters about the prospects of an Obama-sculpted Supreme Court. LINKS: more on Democrats’ newfound suspicion of judicial activism 6/9/08 (from The Committee for Justice) Tuesday, the Wall Street Journal decried Senate Democrats’ obstruction of judicial nominees as “unprecedented in its stinginess,” and noted that “[w]e'll soon see if Republicans will take this lying down.” The answer came the next day, when GOP Senate Leader Mitch McConnell forced Senate clerks to read aloud the entire 491-page substitute amendment to the climate change bill. Kudos to Sen. McConnell, who explained that the tactic was intended “to give [Democrats] time to contemplate and consider the importance of keeping your word in this body.” McConnell was referring to Majority Leader Harry Reid’s broken promise to confirm three appeals court nominees before the Memorial Day recess, as well as Reid’s sure-to-be-broken earlier promises to meet the historical average (17) for appeals court confirmations by an opposition Senate in a president’s final two years. In fact, McConnell noted, judicial confirmations are proceeding at a historically slow pace: “If you look at judicial confirmations in a presidential year, you have to go back to 1848, … Zachary Taylor, to find the last time the pace has been this slow.” Of course, what Senate Democrats have mind is 2009 rather than 1848, as Sen. John Cornyn explained last week: “It is becoming increasingly clear that the majority party is … attempting to run out the clock in hopes of a Democratic President appointing hard left, judicial activists in 2009. We will not let this happen.” (emphasis added) But Democrats should not count their judicial activists before they’re confirmed. As noted by the Washington Times, Sen. McConnell “issued the starkest threat to date that Republicans will retaliate next year if a Democrat wins the White House.” Specifically, McConnell said “It strikes me it's to their advantage to defuse this issue, because around here, what goes around comes around. That's happening today. It could happen next year. Surely, they're not so shortsighted as to think, 'Goodness, just a few months from now we could be processing nominees that we like.’” Moreover, a fight over judges may be just what the GOP needs to avert an Obama presidency: “[T]here are few better political fights for Republicans than over judicial nominations. A new Rasmussen study shows that the type of Supreme Court Justices a presidential candidate would appoint outranks even the war as a priority among GOP voters.” – Wall Street Journal, June 3 “Some conservative leaders have said [the judges issue is] reason enough for them to overcome their misgivings and support presumptive Republican presidential nominee Sen. John McCain, who has promised to nominate conservative judges.” - Washington Times, June 5 However, with the ideological balance of the all-important Fourth Circuit on the line, along with other critical vacancies, there are more immediate concerns than November’s election. Of greatest concern is confirming one or more of the Big Three nominees: Bob Conrad (4th Cir.), Steve Matthews (4th Cir.), and Peter Keisler (DC Cir.). The key will be whether GOP senators remain resolute, and so far the signs are good. When Wednesday’s slowdown produced only a little movement on Reid’s part – specifically, an agreement to hold confirmation votes for three district court nominees – Sen. McConnell continued to press Democrats by refusing to give consent for Senate committees to meet while the Senate was in session Thursday. McConnell promised to keep up the fight until Democrats back down from their obstruction of judicial nominees, saying “Republican [senators] will continue to make the point that judicial nominations need to be treated fairly, and that commitments in this body need to be kept, and we will use the tools available to the minority to do so until that proves to be the case. This is not over I assure you.” Sen. McConnell can’t do it alone, but fortunately, his GOP colleagues are behind him: “One thing is clear: McConnell has the support of a majority of his caucus over the issue of nominees, according to numerous GOP aides. Republicans feel this is a strong campaign issue for them that always rouses the party base.” – FoxNews.com, June 5 As McConnell noted, there is only one solution to the rising tensions over judicial confirmations: “Seven by the end of this year." Seven additional appeals court confirmations would yield a total of 15 in the 110th Congress, short of the 17 promised by Sen. Reid but equal to the number in President’s Clinton final two years. As the Wall Street Journal explained, Republicans had hoped the ‘three by Memorial Day’ agreement with Reid would get us to at least 12 appeals court confirmations in the 110th: “Republicans thought their deal with Mr. Reid was for two nominees in addition to the Michigan pair [who were part of another deal] – but with the Majority Leader, you have to read the fine print of any handshake.” As it turns out, Reid didn’t even abide by the deal’s bold type. Neither the Michigan pair – Helene White and Ray Kethledge – nor the other nominees Republicans had in mind –Conrad, Matthews, and Keisler – were confirmed by Memorial Day, so appeals court confirmations remain at eight. LINKS:Wall Street Journal editorial, Washington Times article, FOX News story, Sen. McConnell’s remarks, JillStanek.com article, Sen. Cornyn’s statement. McConnell Responds to Democrats’ Refusal to ‘The Democratic Majority has refused to honor its commitments. It apparently believes that commitments do not matter in the United States Senate, and that actions do not have consequences’ WASHINGTON, D.C., June 4, 2008 - U.S. Senate Republican Leader Mitch McConnell made the following statement today regarding the Democratic Majority’s refusal to honor commitments on judicial nominations: “The Democratic Majority has repeatedly failed to treat the judicial nominees fairly. “At the beginning of this Congress, the Majority said it would meet or exceed the average of 17 circuit court nominees that have been confirmed in prior Congresses; yet it has only confirmed eight circuit court judges thus far. More disturbing, the Chairman of the Committee recently threatened to shut down the confirmation process completely, an action that would break yet another historical precedent. “The Majority said it would treat Republican senate delegations fairly; yet for months, the Democratic Majority has only worked on circuit court nominees from states with a Democratic senator. “The Majority said it would do its ‘utmost,’ said it would do ‘everything’ possible, said it would do ‘everything within its power’ to confirm three more circuit court nominees by the Memorial Day recess; yet it only confirmed one nominee. Moreover, it appears the Majority did not seriously attempt to honor its commitment. Indeed, since that deadline passed almost two weeks ago, the Democratic Majority has still failed to confirm more circuit court nominees. “The Democratic Majority has refused to honor its commitments. It apparently believes that commitments do not matter in the United States Senate, and that actions do not have consequences. “The actions of our Democratic colleagues today are short-sighted. It is important that judicial emergencies are filled with qualified judges, and we will use the various tools at our disposal to ensure that those nominees and the Republican Conference are treated fairly, and that the Majority takes its commitments seriously.” ### DEMS’ HOLLOW COMMITMENTS ON JUDICIAL NOMINATIONS Dems Promise Fairness On Judges But Repeatedly Break Commitments And Slow Walk Confirmation Process COMMITMENT: “CAN AT LEAST MEET THE STANDARDS OF CONGRESSES SIMILARLY SITUATED AS OURS” SEN. HARRY REID (D-NV): “…we are going to do our very best to make sure this is not our last circuit court judge but the first of a significant number who can at least meet the standards of Congresses similarly situated as ours.” (Sen. Reid, Congressional Record, S.1983-4, 02/15/07) SEN. HARRY REID (D-NV): “We are trying to keep up with the average that has gone on in years past without a lot of political bickering.”: “But I have indicated to the Republican leader that we are going to try to move these nominees along. We are trying to keep up with the average that has gone on in years past without a lot of political bickering.” (Sen. Harry Reid, Floor Remarks, 4/10/08) FACT: THE WASHINGTON POST: “[15] such nominees were confirmed during President Bill Clinton's final two years in office. It appears unlikely that Democratic senators will match that number”: “In the past two years, the Senate has confirmed seven nominees to the Court of Appeals; 16 such nominees were confirmed during President Bill Clinton's final two years in office. It appears unlikely that Democratic senators will match that number, but they should at least give every current nominee an up-or-down vote and expeditiously process the nominees to the U.S. Court of Appeals for the 4th Circuit, where five of the court's 15 seats are vacant. Many in the current batch of national nominees no doubt warrant confirmation…” (Editorial, “Judges, and Justice, Delayed,” The Washington Post, 4/15/08) COMMITMENT: “CONSIDER THREE COURT OF APPEALS NOMINEES BEFORE THE MEMORIAL DAY RECESS” SEN. HARRY REID (D-NV): “I will do everything within my power to get three judges approved to our circuit courts before the Memorial Day recess. Who knows, we may even get lucky and get more than that. We have a number of people from whom to choose.” (Sen. Reid, Congressional Record, S.3014, 4/15/08) SEN. HARRY REID (D-NV): “On judges, I committed to Senator McConnell that I would use my best efforts to have the Senate consider three court of appeals nominees before the Memorial Day recess. I have been working with Senator Leahy to meet that pledge.” (Sen. Reid, Congressional Record, S.3988, 5/12/08) FACT: THE WALL STREET JOURNAL: “Senate Democrats are giving fresh meaning to the phrase "trust but verify." Leading up to Memorial Day, Majority Leader Harry Reid walked away from his spring pledge to Senate Republicans to confirm three of President Bush's judicial nominees by the holiday weekend.” (“Harry Reid’s Handshake,” The Wall Street Journal, 6/3/08) COMMITMENT: STATE DELEGATION’S PARTY AFFILIATION “SHOULD NOT CAUSE THEM NOT TO HAVE THEIR NOMINEE APPROVED” SEN. HARRY REID (D-NV): “I say to my friend from Kentucky, no, it should not be because you have two from the same party from one State and they are not our party, that should not cause them not to have their nominee approved.” (Sen. Reid, Congressional Record, S.3013, 04/15/08) FACT: DEMOCRATS CHOSE: Judge Helene White (Pending 50 days): 2 Democrat Senators Support – Sen. Carl Levin and Sen. Debbie Stabenow Justice G. Steven Agee (Pending 68 days): Democrat/Republican Senators Support – Sen. John Warner and Sen. Jim Webb DEMOCRATS NEGLECT: Judge Robert Conrad (Pending 323 days): 2 Republican Senators Support – Sen. Richard Burr and Sen. Elizabeth Dole Judge Steven Matthews (Pending 272 days): 2 Republican Senators Support– Sen. Jim DeMint and Sen. Lindsey Graham Senator John Cornyn's 6/4/08 Statement U.S. Sen. John Cornyn, a member of the Senate Judiciary Committee, made the following statement Wednesday regarding the Senate Majority’s obligation to confirm federal judicial nominees: “The Senate majority party has made promises and commitments on judges, yet continually fails to live up to its word. We will hold them accountable and make sure they act on the pending judicial nominations. “Many exceptionally well-qualified nominees have been blocked for far too long, like Peter Keisler who has been waiting 700 days for an up-or-down vote. The majority party’s record of confirming judicial nominees is at historically low levels. This is unfair to the nominees, harmful to the federal judiciary and an abdication of the Senate’s constitutional duty. It is becoming increasingly clear that the majority party is interested more in rhetoric than working in good faith to confirm judicial nominees. They are attempting to run out the clock in hopes of a Democratic President appointing hard left, judicial activists in 2009. We will not let this happen.” Senator John McCain's 5/6/08 Speech at Wake Forest University Thank you, Ted, and thank you all very much. Dr. Hatch, I'm grateful for your invitation to this great university. And Senator Richard Burr, thank you for that warm welcome to North Carolina and to Wait Chapel. I'm honored to be here, and I brought along a friend. I'm sure you'll recognize him – my pal, Senator Fred Thompson of Tennessee. We appreciate the hospitality of the students and faculty of Wake Forest University, and especially during exams. I know exam week involves some tough moments, like when you're up at 3:00 a.m. and have to choose between studying or watching one of Fred's old movies. Most of the students here look confident and ready, so you need no advice from me as final exams draw near. But for those of you who might be feeling a slight sense of panic coming on, all I can say is that a few bad grades don't have to be end of the road – so just give it your best and move on. An undistinguished academic record can be overcome in life, or at least that is the hope that has long sustained me. Your kind invitation brings me here as a candidate for president of the United States, and anyone in that pursuit has plenty of promises to make and to keep. When it's all over, however, the next president will be compelled to make just one promise, in the same words that 42 others have spoken when the moment arrived. The framers of our Constitution had a knack for coming right to the point, and it shows in the 35-word oath that ends with a pledge to preserve, protect, and defend the Constitution itself. This is what we require and expect of every president, no matter what the agenda or loyalties of party. All the powers of the American presidency must serve the Constitution, and thereby protect the people and their liberties. For the chief executive or any other constitutional officer, the duties and boundaries of the Constitution are not just a set of helpful suggestions. They are not just guidelines, to be observed when it's convenient and loosely interpreted when it isn't. The clear powers defined by our Constitution, and the clear limits of power, lose nothing of their relevance with time, because the dangers they guard against are found in every time. In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution. In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another's excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn't always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints. There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges. Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America – voters in both parties whose wishes and convictions are so often disregarded by unelected judges – are entitled to know what those differences are. Federal courts are charged with applying the Constitution and laws of our country to each case at hand. There is great honor in this responsibility, and honor is the first thing to go when courts abuse their power. The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself. One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable. But it was not exactly news that the Court had taken to setting aside the facts and the Constitution in its review of cases, and especially in politically charged cases. Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige. Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them. One abuse of judicial authority inspires more. One act of raw judicial power invites others. And the result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines. Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives. The year 2005 also brought the case of Susette Kelo before the Supreme Court. Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way. There is hardly a clearer principle in all the Constitution than the right of private property. There is a very clear standard in the Constitution requiring not only just compensation in the use of eminent domain, but also that private property may be taken only for "public use." But apparently that standard has been "evolving" too. In the hands of a narrow majority of the court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. A local government seized the private property of an American citizen. It gave that property away to a private developer. And this power play actually got the constitutional "thumbs-up" from five members of the Supreme Court. Then there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were – and I quote – "impermissible." And it was so ordered – generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today – and we're all in for trouble when he hears that we met in a chapel. In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically – to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered "settled law," and everything else is fair game. The sum effect of these capricious rulings has been to spread confusion instead of clarity in our vital national debates, to leave resentment instead of resolution, and to turn Senate confirmation hearings into a gauntlet of abuse. Over the years, we have all seen the dreary rituals that now pass for advice and consent in the confirmation of nominees to our Supreme Court. We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers. We have seen disagreements redefined as disqualifications, and the least infraction of approved doctrine pounced upon by senators, their staffs, and their allies in the media. Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution. And then no tactic of abuse or delay is out of bounds, until the nominee is declared "in trouble" and the spouse is in tears. Of course, in the daily routine of Senate obstructionism, presidential nominees to the lower courts are now lucky if they get a hearing at all. These courts were created long ago by the Congress itself, on what then seemed the safe assumption that future Senates would attend to their duty to fill them with qualified men and women nominated by the president. Yet at this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a "judicial emergency" has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy. As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations – to meeting a basic Senate duty under our Constitution. If a lobbyist shows up wanting another bridge to nowhere, or maybe even a courthouse with a friend's name on it, that request will be handled by the Senate with all the speed and urgency of important state business. But when a judicial nominee arrives to the Senate – a nominee to preside at a courthouse and administer justice – then he or she had better settle in, because the Senate majority has other business and other priorities. Things almost got even worse a few years ago, when there were threats of a filibuster to require 60 votes for judicial confirmations, and threats in reply of a change in Senate rules to prevent a filibuster. A group of senators, nicknamed the "Gang of 14," got together and agreed we would not filibuster unless there were "extraordinary circumstances." This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger. Here, too, Senators Obama and Clinton have very different ideas from my own. They are both lawyers themselves, and don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees. For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other. I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make. In the Senate back then, we didn't pretend that the nominees' disagreements with us were a disqualification from office – even though the disagreements were serious and obvious. It is part of the discipline of democracy to respect the roles and responsibilities of each branch of government, and, above all, to respect the verdicts of elections and judgment of the people. Had we forgotten this in the Senate, we would have been guilty of the very thing that many federal judges do when they overreach, and usurp power, and betray their trust. The surest way to restore fairness to the confirmation process is to restore humility to the federal courts. In federal and state courts, and in the practice of law across our nation, there are still men and women who understand the proper role of our judiciary. And I intend to find them, and promote them, if I am elected president. Harry Truman said that he gave "more thought, more care, and more deliberation" to the selection of judges than nearly any other duty of the office. I will bring that same level of care and caution to my judicial nominations, expecting in return that the Senate will do its own part, and confine itself to the duty of confirming qualified men and women for the courts. The decisions of our Supreme Court in particular can be as close to permanent as anything government does. And in the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough. I will not seek the confidence of the American people in my nominees until my own confidence is complete – until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution. I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States. There was a day when all could enter the federal courthouses of our country feeling something distinctive about them – the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice. Thank you very much. 5/2/08 (from The Committee for Justice) A battle over judicial nominees is raging in the Senate, but yesterday the focus was on the House. All 21 GOP House members from Fourth Circuit states sent a letter to Senate Judiciary Chairman Pat Leahy decrying his committee’s “inexcusable” obstruction of 4th Circuit nominees, which is “negatively affect[ing] the lives of the people of Virginia, Maryland, West Virginia, North Carolina, and South Carolina.” The obstruction, the Congressmen explain, “has permitted the vacancy rate in the Fourth Circuit to reach an unacceptable 33 percent,” which
The Washington Post made a similar point last December when it editorialized that
The Congressmen’s letter notes that three of the five 4th Circuit vacancies have already been declared “judicial emergencies,” and two of the vacancies – North Carolina and Maryland seats that have been unfilled since the beginning of the Bush presidency – are the first and third longest running vacancies in the nation. Yet Sen. Leahy refuses to even hold hearings for the Maryland and North Carolina nominees, Rod Rosenstein and U.S District Court Judge Robert Conrad. Ditto for South Carolina nominee Steve Matthews. The Congressmen add that the “Senate’s inaction on Fourth Circuit nominations is particularly egregious given the exceptional individuals President Bush has nominated.” They note that one of the nominees, Judge Conrad, was confirmed by a voice vote in the Senate just three years ago. The 4th Circuit Congressmen conclude:
They note that the Washington Post has said the same, repeatedly calling on the Senate to “expeditiously process the nominees to the U.S. Court of Appeals for the 4th Circuit.” It’s no secret why Senate Democrats are playing politics with the Fourth Circuit. They want to leave the vacancies unfilled in the hopes that a Democratic president can fill them. But history indicates that, even under the rosiest scenario, the first of the next president’s Fourth Circuit nominees would be confirmed no earlier than the last few months of 2009. In other words, if Senate Democrats continue to put politics above the administration of justice in the 4th Circuit, the residents of Maryland, Virginia, West Virginia, North Carolina and South Carolina will go at least another 18 months without an adequately staffed appeals court. As the Congressmen’s letter to Leahy says, “[t]he people served by the Fourth Circuit deserve better.” A copy of the letter is available on request. Permalink: http://www.committeeforjustice.org/blog/2008/05/leahy-disregards-people-of-va-md-nc-sc.html December 2007 Washington Post editorial: http://www.washingtonpost.com/wp-dyn/content/article/2007/12/26/AR2007122601489.html 4/24/08 (from The Committee for Justice) All nine Republican members of the Senate Judiciary Committee have joined the chorus calling on Sens. Pat Leahy and Harry Reid to show good faith in implementing their agreement with Minority Leader McConnell to confirm three circuit court nominees by Memorial Day. In their letter yesterday (link below), the Republican senators remind Judiciary Chairman Leahy that he has not responded to their previous letters about 4th Circuit nominees Bob Conrad and Steve Matthews, and address the necessity of including both nominees and DC Circuit nominee Peter Keisler in the Memorial Day deal:
The new letter to Sen. Leahy was spurred, in part, by his announcement yesterday of a hearing for Fourth Circuit nominee Agee, who was nominated just last month and received his required American Bar Association rating just this week. That stands in stark contrast to the months and years of delay for Keisler, Conrad, and Matthews. By moving Agee ahead of other circuit nominees, Leahy deepened the widespread suspicion that he and Reid will try to evade good faith implementation of the Memorial Day deal by claiming credit for circuit court nominees that were already part of other deals with Democrats. Agee and Sixth Circuit nominees Helene White and Ray Kethledge fall in that category. Permalink: http://www.confirmthem.com/gop_senators_react_as_leahy_guts_judges_deal April 23 letter to Leahy: http://www.committeeforjustice.org/contents/Leahy0408.pdf 4/23/08 (from The Committee for Justice) In the wake of last week’s Senate deal on judicial nominations, today’s Wall Street Journal (link below) joins the voices noting the desirability of filling in the blanks in the deal with the names of circuit court nominees Peter Keisler, Bob Conrad, and Steve Matthews. The Journal editorial describes the problem:
Note that Ray Kethledge is a first-string nominee, but will be confirmed as part of a separate deal, rather than “on the merits.” None of this diminishes Minority Leader Mitch McConnell’s accomplishment in securing the 3-by-Memorial-Day deal using the limited leverage afforded by a highway funding bill. But, as the Journal editorial points out, “GOP Senators need to use their minority rights now to insist that Democrats honor their pledge by confirming three bona fide Bush nominees.” As to which three, the Committee for Justice wholeheartedly agrees with the Journal that “Republican Arlen Specter has the right idea in requesting a discharge petition to confirm Peter Keisler on the D.C. Circuit, plus Robert Conrad and Steve Matthews on the Fourth Circuit.“ The Journal notes that the yet to be determined details of the Memorial Day deal have implications for the next president:
The deal also has important implications for the election itself:
The role of the judges issue in the ’08 election is sure to be one of the topics debated at Friday’s 9th annual Republican National Lawyers Association (RNLA) Policy Conference in DC. Thursday evening, the RNLA honors the Committee for Justice’s founder and first chairman, C. Boyden Gray, with its Edwin Meese Award. Mr. Gray was White House Counsel under the first President Bush and now serves as Special Envoy for European Union Affairs. Upon assuming the EU post, Gray was replaced by CFJ’s current chairman, former Energy Secretary and U.S. Senator Spencer Abraham. Permalink: http://www.confirmthem.com/judges_deal_cfj_founder_honored Wall Street Journal editorial: http://online.wsj.com/article/SB120890722244036277.html RNLA Policy Conference: http://www.rnla.org/Events/EventsDetail.asp?EventID=513
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