Contraception & the GOP Debate

Statement of CFJ Executive Director Curt Levey:

During tonight’s GOP debate, moderator George Stephanopoulos asked Mitt Romney “Do you believe states have the right to ban contraception, or is that trumped by a constitutional right to privacy?” Knowing that Romney and most Americans would not support a government ban on contraceptives, Stephanopoulos’ apparent goal was to trip up Romney, who believes that Roe v. Wade – in which the Supreme Court relied on a supposed constitutional right to privacy – was wrongly decided.

For non-lawyers, a general constitutional right to privacy was created by the Court in its 1965 Griswold v. Connecticut decision, which struck down an unenforced state law prohibiting contraception.

In addition to Romney, Rick Santorum and Ron Paul were drawn into the debate over Stephanopoulos’ question. Answering this question is perilous only if one skips over the distinction between the legal issue – was Griswold rightly decided as a matter of constitutional interpretation – and the political question – should states be prohibited from banning contraception as a matter of federal policy, presumably expressed through a federal statute or constitutional amendment.

Perhaps Stephanopoulos was trying to blur this distinction. Or perhaps – like most of the “living Constitution” crowd – he does not fully comprehend the distinction. In any case, we wish the GOP contenders had taken the opportunity to make the distinction clear, because it’s at the heart of the debate over judicial activism.

Opponents of judicial activism believe that judges’ policy views – say, on the desirability of a general right to privacy – should play no role in constitutional interpretation – for example, in determining whether the Constitution’s "penumbras" and "emanations" imply a right to privacy, as Griswold concluded. Believers in a “living Constitution,” on the other hand, advocate that judges should update the meaning of the Constitution to incorporate the evolving values of society (at least those of elite society).

Santorum, Romney & Judges

Statement of CFJ Executive Director Curt Levey:

We congratulate Rick Santorum and Mitt Romney for their shared victory in Iowa last night and offer some brief thoughts on the sort of judicial nominations we can we expect from these men if one of them becomes president.

Although some conservatives have questioned Romney’s ideologically diverse judicial nominations as governor of Massachusetts, consider the context. Romney’s judicial nominations were made in the face of a Democrat-dominated Governor's Council that had the power to reject those nominations.

It is fairer to look at more recent indications and there we find reason for encouragement in the people Romney named to his Justice Advisory Committee in August. Its list of 63 members reads like a who’s who of the nation’s most accomplished conservative lawyers, including committee co-chairs Judge Robert Bork, Harvard Law School professor Mary Ann Glendon, and former FCC chair Richard Wiley. Assuming Romney relies on these same advisors when selecting judges, conservatives are likely to be happy with his judicial picks.

Rick Santorum has not been in a position to nominate judges but he had an outstanding track record on the judges issue as a U.S. Senator. We are confident that his approach to judicial nominations will reflect the passionate commitment to constitutionalism demonstrated by that record.

Writing in 2005, Third Branch Conference chairman Manny Miranda described Santorum’s leadership on the judges issue:

"No Republican senator has done more to make the confirmation of John Roberts possible, because no Republican senator is more responsible for making the judiciary issue a national electoral winner for Republicans, or for making colleagues understand its significance to constituents. No GOP senator did more to lay the groundwork for … effectively ending the Democratic filibusters. … The end result of Mr. Santorum's strategy was a net GOP gain of six seats in two elections."

Santorum’s efforts to lay the groundwork began with his organization of the 2003 ''anti-filibuster,'' which focused public attention on Democrats’ abuse of the judicial filibuster by keeping the Senate in session for 40 straight hours over the course of two nights. In November 2006, the New York Times agreed with Miranda’s assessment of the senator’s leadership, calling Santorum the “chief Republican proponent of underlining Democratic opposition to Mr. Bush's judicial choices.”

A few weeks earlier, Santorum became the first senator to sign the Fair Judiciary Oath, committing him to work for “a fair confirmation process.” In addition to CFJ and the Third Branch Conference, the sponsoring Fair Judiciary Oath Coalition included the American Center for Law & Justice, the American Conservative Union, the Family Research Council, the Judicial Confirmation Network, and other groups.

After leaving the Senate, Santorum spoke out against the confirmation of Sonia Sotomayor to the Supreme Court. Citing Sotomayor’s statement about the “better conclusion[s]” of a “wise Latina” judge, her controversial decision in the New Haven firefighters reverse discrimination case, and her claim that an appeals court is “where policy is made,” Santorum explained that

“Bias, elitism, the politics of separating people into classes and racial and ethnic pigeonholes are not what one would expect from a nominee of a president who promised to get us past that.”

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While CFJ has not endorsed any of the presidential candidates, we will continue to comment on their approaches to the judges issue. Most recently, CFJ’s Curt Levey wrote about Newt Gingrich’s proposals for judicial reform in a December 23 Wall Street Journal op-ed.

Gingrich & Judges

In an op-ed in today’s Wall Street Journal, the Committee for Justice’s Curt Levey discusses the wisdom and constitutionality of Newt Gingrich’s proposals for judicial reform and explains why they deserve serious consideration, warts and all. For example:

“Congress routinely asks executive branch officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It's unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich's.”

Electoral Impact of AZ Immigration Case

Hold on to your hats for what promises to be the most controversial and politically significant Supreme Court term in memory. The Supreme Court’s decision yesterday to review the constitutionality of Arizona’s immigration law ensures that illegal immigration will be on the front burner in next year’s presidential and Congressional elections. Likewise for both ObamaCare – which the High Court agreed to review last month – and the timely issue of federalism, which is at the heart of both the Arizona and ObamaCare cases. As an article (“SCOTUS in '12 election is enormous issue”) in Politico explains

“Together, the [two] cases will help shape the national political debate as well as the direction of policy on one of the most contentious issues of the election: the power of the federal government [over states and individuals].”

In an October 3 op-ed in The Hill, CFJ’s Curt Levey explained why the lineup of cases asking for Supreme Court review would “likely make this the most important term in decades, while focusing Americans on several of the nation’s most emotional and divisive issues … at the perfect time to influence the 2012 election.” With yesterday’s decision to review the Arizona’s immigration law, what was likely has now become certain.

Moreover, as Levey points out in the Politico article, it’s not just the caseload that will impact the election:

“Levey noted that because of the health issues and ages of the current justices, up to three seats could open in the next presidential term. ‘Combine that with the cases they’re taking, and it sets up the Supreme Court to be an enormous issue in this election.’”

While the Arizona case’s electoral impact is inevitable, the direction of the impact is not as clear. If the Supreme Court upholds most or all of the Arizona immigration law when it rules this spring, it will be a victory for conservatives both legally and – in the short term – politically, as more states are encouraged to enact such laws.

However, at the polls next November, a legal loss may turn into a political plus for Democrats. When the Arizona law was first enacted, liberal activists used it to energize Hispanics. Expect a repeat if the law is upheld, this time in a presidential election year and with Supreme Court appointments as an additional issue.

Mark Krikorian, blogging for National Review Online, went so far as to speculate that

“the White House privately wants to lose the [Arizona] case — that way, they get an irritant off the table that can motivate Obama’s opponents, while also being able to show their leftist allies how important it is to get out the vote, however disappointed they might be in [Obama’s] performance, because he’ll appoint justices that won’t rule like this.”

Should the Supreme Court, instead, strike down the heart of the Arizona law, it will be seen as a vindication of President Obama’s controversial decision to sue Arizona and other states with similar laws. That will provide him with a temporary political lift and some additional brownie points with Hispanic voters. But good news only goes so far in getting Hispanic voters – or any voters – to the polls.

Instead, it will be conservatives – forced to look to the federal government again to slow illegal immigration and angry at a Court that seems to side with elite opinion on social issues – who will be highly motivated to elect a president capable of addressing these concerns. Several of the GOP presidential candidates have already made an elitist judiciary a campaign theme, including proposing various ways to curb judicial activism. The Gingrich campaign has a 54-page position paper on the subject.

It’s not just conservative voters who will be moved by a Supreme Court decision that puts responsibility for fixing immigration law entirely on the shoulders of the federal government. Such a decision is likely to make immigration a bigger issue in the presidential election for a broad spectrum of voters. That can’t be good news for Barack Obama and Congressional Democrats when 74% of Americans think the Arizona law doesn’t go far enough or is about right (CBS News Poll).

Gun Issue Ends Halligan’s Bid for DC Circuit

This afternoon, D.C. Circuit nominee Caitlin Halligan became the second Obama appeals court nominee defeated on the Senate floor when cloture failed by a vote of 54 to 45. The opposition of gun rights groups was the single biggest factor in her defeat.

Citing Halligan’s “attacks on the Second Amendment rights of law-abiding Americans,” the National Rifle Association opposed a judicial nominee for one of the few times in its history. Gun Owners of America cited Halligan’s “avid leader[ship] in the effort to destroy firearms manufacturers using frivolous litigation,” and the Citizens Committee for the Right to Keep and Bear Arms deemed her to be “Obama’s most radical anti-gun judicial nominee to date.”

Halligan’s defeat is part of a pattern that confirms our prediction that gun rights would become the “new abortion” in judicial confirmation battles. As CFJ’s Curt Levey explained in a 2009 op-ed:

“[With] the Supreme Court’s 2008 [Heller] decision recognizing the Second Amendment as an individual right … the Justices transferred the theater of war from legislatures to the judiciary. …That’s why I and others predicted that gun owners – their fate tied to the selection of judges in the wake of Heller – would emerge as a potent part of the coalition advocating … for judges who strictly interpret the Constitution.”

The emergence of the gun issue began early in President Obama’s first term when he nominated three controversial district court nominees: Louis Butler (WI), Edward Chen (CA), and John McConnell (RI). All three posed a clear danger of judicial activism, but only Butler had a troubling Second Amendment record. As a result, Butler still languishes in the Senate and will not be confirmed, while Chen and McConnell eventually won Senate confirmation.

Defeating a Supreme Court nominee is much more difficult, but it’s widely agreed that the Second Amendment concerns in the records of Sonia Sotomayor and Elena Kagan – which triggered the opposition of the NRA and other gun rights groups – pushed wavering senators to vote against Obama’s High Court nominees. Nearly every senator criticized, defended, or tried to counterbalance Sotomayor’s Second Amendment record in explaining their vote on confirmation. In the end, the 31 votes against the nation’s first Hispanic Supreme Court nominee surprised liberals and conservatives alike given both initial predictions and the mere three votes against Ruth Bader Ginsburg.

Similarly, many of the 37 votes against Elena Kagan – the most votes against a Democratic Supreme Court nominee in more than a century – can be attributed to the gun issue.

Why does this matter? As Levey explained in a 2010 op-ed:

“[The gun issue] changes the political dynamics of the judicial confirmation process, shifting the center of gravity by adding a large constituency with a long track record of effectiveness – including influence over moderate Democrats – to the coalition opposing the nomination of liberal judicial activists.”

And unlike the abortion issue, there’s no comparable countervailing force on the pro-gun control side of judicial confirmation fights.

Gun Rights at Stake in Halligan Vote

Statement of CFJ Executive Director Curt Levey:

Never before have we used the word “urgent” in this space, but Senate Democrats are just a few days away from putting Caitlin Halligan – a committed opponent of gun rights, an apologist for enemy combatants and an all-around judicial activist – on the U.S. Court of Appeals for the D.C. Circuit. Save for the Supreme Court, the D.C. Circuit is the most important court in the nation and this is the most important vote on an Obama judicial nominee to date.

Last night, Senate Majority Leader Harry Reid announced that he will try to invoke cloture on Halligan’s nomination next Tuesday, December 6, at noon. If Reid gets 60 votes on cloture, Halligan will get a lifetime seat on a court that plays a crucial role in national security cases and heard the two biggest Second Amendment cases of our lifetimes, McDonald v. Chicago and District of Columbia v. Heller.

Moreover, the D.C. Circuit is the only court short of the Supreme Court that can stop the Obama Administration’s practice of using regulatory power grabs to accomplish what the President can’t get through Congress. This court is also the top training ground for future Supreme Court nominees.

For all these reasons, it’s urgent that you contact the key senators who will determine whether Reid gets 60 votes (see list below) and tell them to vote no on cloture for Halligan. Urge your friends, colleagues and members to do the same. Calling (202) 224-3121 will get you connected with the Senate office of your choice.

Do not settle for a senator’s promise to vote against confirmation of Halligan if the cloture vote succeeds in forcing a confirmation vote. Such a promise is useless because the battle will be over if Reid wins the cloture vote.

Explain to the senators that, while voting against cloture on a judicial nominee should not be taken lightly, Halligan’s extreme views satisfy the Gang of Fourteen’s “extraordinary circumstances” standard for doing so. Only a few of President Obama’s judicial nominees have met the high threshold of “extraordinary circumstances” and, accordingly, the Committee for Justice has opposed only a handful of Obama nominees. But Halligan clearly meets the threshold. No Obama nominee, save for Supreme Court nominees, is more likely to do damage to the Constitution if confirmed than Ms. Halligan.

Most Republican senators can be counted on to vote against cloture. The remaining ten or so Republicans understand the importance of keeping judicial activists off the D.C. Circuit, but need to be reminded why Caitlin Halligan meets the “extraordinary circumstances” standard. Based on past votes, GOP senators in the latter category likely include Lamar Alexander (TN), Scott Brown (MA), Susan Collins (ME), Lindsey Graham (SC), Mark Kirk (IL), Richard Lugar (IN), John McCain (AZ), Lisa Murkowski (AK), Olympia Snowe (ME), and John Thune (SD).

The Democratic leadership will be cracking the whip hard on this cloture vote, but a couple of moderate Democrats concerned about Halligan’s Second Amendment and national security records might be convinced to vote against cloture. Among the Democrats who might fall into this category are Sens. Mark Begich (AK), Bob Casey (PA), Joe Manchin (WV), Claire McCaskill ( MO), Ben Nelson (NE), Jon Tester MT), and Jim Webb (VA).

Remind these senators that the circumstances of Halligan’s record are extraordinary enough to prompt the National Rifle Association to oppose this judicial nomination, something the NRA has done only a few times. As the NRA’s letter explains:

“Our opposition is based on Ms. Halligan's attacks on the Second Amendment rights of law-abiding Americans. Specifically, she worked to undermine the Protection of Lawful Commerce in Arms Act (PLCAA), enacted in 2005 with strong bipartisan support. This legislation was critically important in ending a wave of lawsuits … which sought to blame firearms manufacturers and dealers for the criminal misuse of their products … Among the governments that sued the industry was the state of New York … while Ms. Halligan was New York's solicitor general, and she strongly supported the litigation [against numerous gun manufacturers] both inside and outside the courtroom.”

Gun Owners of America oppose Halligan’s nomination for similar reasons, adding in their letter that Halligan “attempted to conceal the extent of her anti-gun animus” in her written testimony to the Senate Judiciary Committee.

Remind senators of Halligan’s troubling views on national security issues. For example, she signed a 2004 manifesto deeply critical of the War on Terror. The document urges that enemy combatants be tried in civilian courts and given the same constitutional protections afforded ordinary criminals. It further argues that Congress’ 2001 Authorization for Use of Military Force Against Terrorists does not allow dangerous enemy combatants to be indefinitely detained, a position rejected by both the Obama administration and the Supreme Court. Halligan has made these same arguments in amicus briefs as well.

Remind senators that additional concerns about Halligan’s willingness to refrain from judicial activism are prompted by her record of hostility to the death penalty and sympathy for racial preferences and the invention of a constitutional right to same-sex marriage. Even more troubling are her arguments, made while serving as New York’s Solicitor General, that pro-life protestors can be sued for extortion and illegal aliens can sue for back pay. The U.S. Supreme Court rejected both arguments.

Remind senators that nominees to the all-important D.C. Circuit are subject to extra scrutiny. During the Bush Administration, Democrats opposed several magnificently qualified nominees to the D.C. Circuit, including Miguel Estrada, whose nomination was defeated by multiple filibusters, and Peter Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s Judiciary Committee. The seat to which Halligan has been nominated is vacant only because Senate Democrats set the bar so high during the last Administration.

Finally, remind senators that, even if they believe support for controversial nominees may be warranted where judicial vacancies have been declared emergencies, the D.C. Circuit has the opposite problem. It has too many judges for its workload, as Senate Democrats reminded us while holding up Peter Keisler’s nomination. The D.C. Circuit’s number of cases per judge is only about 25% of the average workload in the other 12 circuits and is shrinking.

ObamaCare: Electoral Impact & Kagan Recusal

The Supreme Court’s announcement today that it will review the constitutionality of ObamaCare ensures that the health care law will be one of the biggest issues in next year’s presidential and Congressional elections. Federalism – including the Tenth Amendment and Congress’ enumerated powers – will also be a prominent election issue because the Court’s decision will have even larger implications than the fate of ObamaCare. The decision will answer the momentous and timely question of whether there are any real limits on the federal government’s power over states and individuals.

See here for my recent op-ed in The Hill explaining why ObamaCare and several other cases knocking on the High Court’s door will make this the most politically important Supreme Court term in decades.

There’s no doubt about the magnitude of ObamaCare’s impact on the 2012 elections, but the direction of the impact is not as clear. If the Supreme Court upholds ObamaCare in its entirety, it will be seen as a victory for President Obama and Congressional Democrats, which would likely provide them with some electoral momentum. On the other hand, such a decision by the Court would throw responsibility for reforming ObamaCare entirely on the shoulders of the new Congress and President, thus making it an even bigger election issue. That might be bad news for Democrats given ObamaCare’s continual poor showing in the polls.

Conversely, if the High Court strikes down ObamaCare in its entirety, it would be a victory for Republicans, giving them the electoral momentum, but at the same time largely depriving them of one of their best election issues.

Finally, if the Supreme Court strikes down one or more of the challenged ObamaCare provisions – the individual insurance mandate or the expansion of Medicaid – but leaves much of the statute in effect, it would likely be the worst case for Democrats. Republicans would be able to say “I told you so,” while candidates would be forced to focus on how to repair the shattered statute, with Democrats on the defensive.

As you can see, what outcome political partisans root for in the Supreme Court will depend on whether they are most concerned about ObamaCare or the 2012 elections.

Meanwhile, today’s Supreme Court announcement brought no indication that Justice Elena Kagan will recuse herself from the ObamaCare case, despite being required to do so under federal law. The requirement arises from Kagan’s documented involvement, as U.S. Solicitor General, in the Administration’s preparation for the legal defense of ObamaCare’s constitutionality. Federal law – specifically 28 U.S.C. §455(b)(3) – requires recusal where a judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

We take Kagan at her word that she walled herself off from the defense of ObamaCare after she was nominated to the Supreme Court in May 2010. However, she had already been involved in the defense for several months at that point, as indicated by documents obtained under the Freedom of Information Act (FOIA).

The Obama Administration has been slow and only partially responsive in responding to FOIA requests for documents related to Kagan’s involvement in ObamaCare’s defense, so it is difficult to determine the depth of that involvement. However, the plain text of 28 U.S.C. §455(b)(3) makes it clear that the requirement for recusal applies regardless of her degree of participation.

The Committee for Justice calls again for Justice Kagan to recuse herself from the ObamaCare case, as required by federal law, when it is heard and decided next spring.

Cain & Sexual Harassment Allegations

The following is CFJ Executive Director Curt Levey’s statement on the allegations against presidential candidate Herman Cain. Levey, a 1997 graduate of Harvard Law School, is an expert on issues of racial and gender discrimination. While CFJ has not endorsed Cain or any of the other presidential candidates, its mission includes educating Americans about the rule of law.

In light of last night’s Politico story about allegations against Herman Cain, it is important to clarify the legal meaning of the term “sexual harassment.” Specifically, Politico reports allegations that Herman Cain made an “an unwanted sexual advance” and engaged in "innuendo or personal questions of a sexually suggestive nature." Politico suggests that this amounts to sexual harassment, using the term at least six times.

The truth is that the reported allegations, even if true, do not constitute sexual harassment under the law unless – as the Supreme Court has stated – they are "sufficiently severe or pervasive" to “create an abusive working environment,” among other requirements. Even the guidance of the decidedly liberal U.S. Equal Employment Opportunity Commission cautions that "sexual attraction may often play a role in the day-to-day social exchange between employees" and that

“[S]exual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.”

The “severe or pervasive” requirement is not a legal technicality. Sexual harassment in the workplace is an important problem and trivializing the term undermines the seriousness with which cases of severe and pervasive harassment are taken. There is no suggestion in the Politico article that Cain’s alleged behavior was either severe or pervasive, so at least for now, the suggestion of sexual harassment is unsupported.

Politico places a lot of weight on the report that “there were financial settlements in two cases in which women leveled complaints [against Cain].” In fact, without knowing more about the details of the settlements, it’s impossible to draw any conclusions from them. Corporate America is very risk averse when it comes to negative publicity, and in-house settlements often occur even when the evidence of harassment falls far short of the threshold needed to be taken seriously by a court.

Clarence Thomas & Affirmative Action

Twenty years ago today, Clarence Thomas was officially sworn in as a Justice of the U.S. Supreme Court in a small ceremony at the Court. National Review Online marks the occasion with a symposium on Justice Thomas’ impact on the High Court and society. Among the contributors is the Committee for Justice’s Curt Levey, who concludes that

Nowhere is Clarence Thomas’s independent thinking, clarity, and courage more powerful than on issues of race. … Largely because of [his voice on the subject], Thomas has grown from being the first black conservative on the Court to the most influential black conservative of our lifetime.

Levey cites Thomas’ 2003 dissent in Grutter v. Bollinger (upholding racial preferences at the University of Michigan Law School) as the finest example of that voice, noting that it forced even his critics “to acknowledge the genuineness of both his pride in the capability of blacks and his anger at those who demean that ability with preferences.” The full text of Curt’s piece is here and the entire symposium can be found here.

To Justice Thomas’s great disappointment, the Grutter decision left colleges and universities with plenty of latitude to continue their use of racial preferences in admissions in pursuit of diversity. However, that latitude will likely narrow or possibly even disappear before the Supreme Court completes its 2011-12 term next June.

The likely change arises from Fisher v. University of Texas, a lawsuit challenging UT-Austin’s use of race in admissions despite the school’s proven success in achieving racial diversity using non-race-based methods. In a recent discussion of the case at the leading Supreme Court blog, SCOTUSblog, experts agreed that the High Court is likely to add Fisher to its docket for the current term.

CFJ’s Curt Levey was among those contributing to the consensus. His SCOTUSblog post concludes that

Fisher gives the five Justices who are suspicious of racial preferences an excellent opportunity to push universities closer to a middle ground in which they consciously seek racial diversity through plans like the Top Ten Percent with little or no explicit use of race.

Curt’s full explanation of why the Court is likely to take the case can be found here. The entire SCOTUSblog discussion can be found here.

Michelle Obama on Judges

First lady Michelle Obama and CFJ’s Curt Levey agree about one thing: “the Court's direction will be at stake in the 2012 election.” So said Ms. Obama at a fundraiser in Rhode Island a few days ago. That echoes Levey’s forecast in an op-ed in The Hill:

“The electoral focus on judges in 2012 will not be misplaced. The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance – and with it, the fate of gay marriage, abortion, illegal immigration and the like – could swing wildly in either direction after 2012.”

David Ingram of the Legal Times characterizes Ms. Obama’s comments as

“a rare example, so far, of President Barack Obama’s reelection effort trying to build support by highlighting his judicial appointments.”

High Court Will Impact Election

In an op-ed in The Hill, CFJ Executive Director Curt Levey takes a look at the new Supreme Court term and concludes that

“Lovers of political drama couldn’t ask for a more fortuitous confluence of events: the most emotional issues dividing the nation – illegal immigration, gay marriage, ObamaCare, racial preferences, and the legitimacy of federal power – all likely arriving at the Supreme Court during a single presidential election year.
. . .
[This] will not only focus candidates and the public on the emotionally charged issues at stake, but will also thrust the ‘judges issue’ – the Supreme Court, judicial activism, the next President’s judicial nominations, and the Senate’s role in scrutinizing those nominees – to the forefront of the 2012 campaign debate.”

Let the People Choose Their Judges

Former Michigan Supreme Court Chief Justice Clifford Taylor explains in a video interview why electing judges is a much better method of judicial selection than so-called “merit selection” panels, which virtually ensure the appointment of liberal judges. In a 2008 election, Taylor lost his seat on the Michigan Supreme Court as the result of dirty campaign tactics by his opponent. So his endorsement of judicial elections has tremendous credibility. Says Taylor,

“Elections may have some warts but they’re beauty queens compared to merit selection.”

Who’s to Blame for Judicial Vacancies?

On last night’s PBS NewsHour, Committee for Justice executive director Curt Levey discussed the politics of confirming President Obama's judicial nominees with Caroline Fredrickson, executive director of the American Constitution Society. Judy Woodruff hosted the discussion.

A transcript of the interview and streaming video are available on the NewsHour web site, and audio of the interview can be downloaded. Here are some excerpts:

CURT LEVEY: Caroline accurately pointed out that there are 20 pending [nominees] who have gotten out of committee. But that's only 20 out of 91 vacancies. And all but one of those 20 are just a matter of weeks or, at most, a couple of months, which is a very short time historically. I mean, there are many of Bush's nominees who waited literally years after they got out of committee. There were some nominees who were waiting throughout most of the eight years. So the fact that there's only one out of the 20 who's even been waiting three months I think tells you that things are going fast.
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CURT LEVEY: I don't think [the judicial vacancy rate] has much to do with anything the Republicans are doing. It has to do with a very slow nomination pace by the Obama administration. Obama is not making confirmations a priority, nor is Sen. Reid, the majority leader. Also, there's just been, let's face it, a general breakdown in courtesy in the Senate. And so all issues get affected, including judges. And there were also two Supreme Court vacancies in Obama's first two years, which, for about six months [bring other confirmations to a halt].
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CAROLINE FREDRICKSON: Thirty-seven of those vacancies represent judicial emergencies. And that is a term that's been defined by the Administrative Office of the Courts to represent an extremely high caseload. And what that means, what that translates into for ordinary Americans is an extremely long wait before their vital case can get heard.
…
CURT LEVEY: I do agree that judicial emergencies should be given priority. But, again, let's remember that judicial emergency is not just defined by caseload. It's also defined by how long the vacancy has existed. And, again, that vacancy may have existed for a long time because Obama was very slow to appoint a nominee.

Obama Justice Dept: Moderates Need Not Apply

This month, Pajamas Media has run an excellent series of articles about the radical hiring practices of the Obama Justice Department’s Civil Rights Division, including the Voting Section (here & here), Education Section, Special Litigation Section, and Immigration Office.

The series, authored by Hans von Spakovsky, J. Christian Adams and Richard Pollock, has unarguably demonstrated that

“[E]very single one of the career attorneys hired since Obama took office has a fringe leftist ideological bent and nearly all have overtly partisan pasts. Every single one. … Acting Assistant Attorney General Loretta King rewrote hiring guidelines in 2009, resulting in hiring committee members being forced to toss any resume that did not describe a radical background.”

This from the same Democratic party that investigated and harassed the George W. Bush Administration for adding a little bit of ideological diversity to the Justice Department’s career attorney staff by hiring a handful of conservative lawyers.

Obama's Latest Assault on the Commerce Clause

From the Billings Gazette:

Tractors lumbering down country roads are as common as deer in rural Montana, but the federal government wants to place new driving regulations on farmers and ranchers.

"It's a huge deal for us," said John Youngberg of the Montana Farm Bureau. After years of allowing state governments to waive commercial driver's license requirements for farmers hauling crops or driving farm equipment on public roads, the Federal Motor Carrier Safety Administration is poised to do away with the exceptions.

Regulators are suggesting that all wheat shipments be considered interstate, even when farmers making short hauls to local grain elevators aren't crossing state lines. The change would make commercial driver's licenses — and all the log books and medical requirements that go with them — a necessity for farmers. Some might not qualify. ...

FMCSA argues that because grain will ultimately be shipped out of state, it should be regulated as an interstate product at every transportation step. Treated as a product destined to cross state lines, grain becomes federally regulated under the commerce clause of the U.S. Constitution.

Judicial Diversity, S&P and BB Amendment

Statement of CFJ Executive Director Curt Levey:

This weekend brought two reminders of the looming battle over a balanced budget amendment: Standard & Poor’s downgrade of the U.S. credit rating and the passing of former Oregon Senator Mark Hatfield.

In announcing the downgrade, S&P cited the weakened “effectiveness, stability, and predictability of American policymaking and political institutions” and the “the difficulties in bridging the gulf between the political parties over fiscal policy.” A balanced budget amendment (BBA) would go a long way to addressing these problems. A constitutional amendment is, by design, far more stable and predictable than legislation. And getting the two-thirds vote in the Senate and House needed to pass a BBA would be a dramatic demonstration of “bridging the gulf between the political parties.”

A BBA is not a perfect solution to our nation’s debt problems. In particular, the amendment must be carefully crafted to address concerns about the role of the courts in enforcement. But what is the alternative? Does anyone seriously believe that legislation alone will get us within a hundred miles of a balanced budget, no less do it in a stable and predictable way?

If today’s obituaries for liberal Republican Senator Mark Hatfield are any indication, he will be remembered for casting the vote which defeated a balanced budget amendment in 1995. The amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin, but failing in the Senate by just one vote when Hatfield became the lone Republican to vote no.

Getting a BBA approved by two-thirds of each house is a steep obstacle. But the closeness of the 1995 vote – at a time when concerns about the ballooning national debt had not yet reached today’s levels – reminds us that it’s doable. All Republicans will likely be on board this time. And as a New York Times article noted last week, “for Democrats seeking to redefine themselves as careful fiscal stewards on the cusp of the 2012 campaign, the idea of a balanced budget amendment free of hard-line provisions is not an impossible sell.”

For our discussion of why last week’s debt deal provides an incentive for Congress to pass a BBA, see here.

It’s not often that we cite the New York Times twice in one day, but yesterday’s Times had a balanced article on the diversity of President Obama’s judicial nominees. In it, I touched upon several issues – non-discriminatory methods of achieving diversity, the high proportion of African-American nominees (relative to their proportion in the population and bar), and the mathematical reality that the weights given to race and other selection criteria for nominees can’t add up to more than 100 percent:

“Diversity is a good thing, but how do you achieve it — by quotas?” [Levey] said. “Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?”
“The more you focus on race and gender,” Mr. Levey added, “the less you’re going to focus on other traditional qualifications — that’s simply the math of it.”
Besides, he said, “If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”

In the article, I also commented on Democrats’ allegations that Senate Republicans have orchestrated a slowdown in the confirmation of noncontroversial judicial nominees:

Mr. Levey said that while his group and others had mounted resistance to several Obama nominees, including Goodwin Liu, a nominee to the United States Court of Appeals for the Ninth Circuit who withdrew after a Senate filibuster, there was no overarching campaign to slow the process.
“If there is a plan to delay these noncontroversial nominees, nobody has told me about it,” he said. He instead attributed the pace of confirmations to “the general lack of cooperation on all issues” in Congress.

Debt Deal Boosts BB Amendment

CFJ Executive Director Curt Levey on the Balanced Budget Amendment provisions of the debt deal:

As long-time advocates for a constitutional approach to limiting federal spending – the only type of budget reform capable of binding future Congresses – we are disappointed that the budget agreement worked out yesterday does not contain the Boehner bill’s requirement that a balanced budget amendment (BBA) be approved by the Senate and House and sent to the states. While we take no position on support for the agreement (the Budget Control Act of 2011 or BCA), we did find a bit of good news for BBA supporters in the bill. It contains not just a requirement that both houses of Congress vote on a BBA – the sole focus of most press reports – but also an incentive for Congress to approve a BBA.

To understand the incentive, it is necessary to clarify some confusion about the relationship between 1) the bill’s BBA provisions – providing for a debt limit increase of $1.5 trillion this winter if the BBA is approved by Congress; 2) the spending cuts of up to $1.5 trillion to be recommended by a special Joint Committee – resulting in a debt limit increase of up to $1.5 trillion if the cuts are approved by Congress; and 3) the $1.2 trillion in across-the board spending cuts triggered automatically if #2 fails – resulting in a debt limit increase of $1.2 trillion this winter. Reliable sources on the Hill have confirmed that, while Congressional approval of a BBA is a substitute for the Joint Committee cuts in the sense of enabling the $1.5 trillion debt limit increase, that substitution would not eliminate the automatically triggered cuts.

Some BBA supporters would have preferred that passage of a balanced budget amendment eliminate the triggered cuts, in order to give Democrats the maximum incentive for coming around to support the amendment. Nonetheless, the BCA was specifically designed to incentivize Congress to choose action – approved cuts or passage of the BBA. For example, either option provides the extra $300 billion in debt limit hikes necessary to see the Administration through the election if the economy and thus revenues continue to falter.

While the vast majority of Congressional Republicans need no incentive to vote for a BBA, most Democrats currently oppose the amendment. The hope for BBA supporters is that moderate Democrats can be turned around through a combination of public pressure – numerous surveys show that a large majority of American support a BBA – and a preference for wishful thinking – specifically the hope that the BBA won’t get the required approval of 38 states – over immediate, hard choices about what cuts to make.

The requirement that constitutional amendments be approved by two-thirds of each house is a steep obstacle, but it’s hardly an insurmountable one. In 1995, a balanced budget amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin and failing in the Senate by just one vote.

Interestingly, a united GOP could, intentionally or not, increase the probability of Democrats opting for a BBA by cutting off the other option for Congressional action – that is, by blocking approval of the $1.5 trillion in cuts in the Joint Committee or in the House. Whether the increased odds of BBA passage are worth the loss of the Joint Committee cuts depends on what sort of BBA gets out of Congress. The BCA does not address the details of a balanced budget amendment. But we will: a good balanced budget amendment is one that would cap federal spending at about 18% of GDP, require super-majorities in Congress for tax increases, and mandate a balanced budget fairly quickly, say five years after ratification.

The BCA gives supporters of a balanced budget amendment at least two months – a BBA vote is mandated sometime between this October and December – to translate broad public support for a BBA into the sort of political momentum that would make it difficult for moderate Democrats to vote against the amendment. Regrettably, the BBA did not take center stage in this summer’s debt ceiling debate until shortly before the House voted on it as part of the Cut, Cap & Balance bill. As a result, the momentum-building process for the BBA got a late start. The time between now and October gives BBA supporters plenty of time to erase the disadvantages of a late start.

In sum, while the BBA provisions in the Budget Control Act fall far short of our legislative ideal – a requirement for Congressional approval of a BBA with both spending caps and a super-majority requirement for tax increases – they are better than what’s been described in most press reports and offer some modest hope to BBA supporters.

Finally, we note that while constitutional budget reform is likely the most reliable approach, some permanent quasi-structural reform has already been achieved this summer with the establishment of a new normal for debt ceiling increases. Until now, the debt ceiling increases that enabled and fueled today’s out-of-control budget deficits were essentially automatic – devoid of debate and largely unopposed. We suspect that will never be the case again, thus ensuring a dramatically different budget playing field in the years to come.

"How Campaign Finance Laws Made the British Press So Powerful"

A lesson in unintended consequences from across the pond.

"As a result, whoever controls the newspapers has a much greater capacity to steer the course of an election debate. Given the relatively small number of titles with a national audience and levels of concentration, this influence lies in the hands of a small number of companies. News Corporation alone has over a third of the market share for national newspapers. This explains why so many politicians went out of their way to win the favour of Rupert Murdoch and his lieutenants. While elections are not won or lost as a result of a newspaper endorsement, most politicians do not want to take the risk of receiving unfavourable coverage.

To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.

The most obvious strategy in this regard is to limit the concentration of the media. Given the unrivalled capacity to engage in unrestrained electoral advocacy that comes with owning a newspaper, it is important that no single person or company be able to dominate the market. Others, by contrast, have called for the regulation of media content. Most of the content regulations being discussed at present are aimed at stopping invasions of privacy and preventing the acquisition of information through hacking and blagging. There have, however, been some calls that newspapers be required to cover political matters with due impartiality, as is required on UK television and radio. But even at the height of anti-Murdoch feeling, such a far-reaching measure seems very unlikely to be pursued.

Such measures would be unthinkable under the First Amendment—but much of the UK campaign finance laws would not survive that standard either."

No Obstruction of Minority Nominees

Today’s Politico reminds us of the Left’s fallacious claim that, thanks to Republicans, “the Senate has been particularly slow to confirm Obama’s diverse candidates.” For example, Caroline Fredrickson, executive director of the American Constitution Society, charges that

“The president has tried to diversify the federal bench, but this effort has hit a wall of Republican obstructionism in the Senate.”

Politico also presents the other side with this quote from me:

“In an attempt to play the race card, the left ignores the obvious fact that when you increase the percentage of female and minority nominees, you also necessarily increase the number women and minorities that get caught up in the myriad of practical and political delays typical of judicial nominations. If senators perceive that race and gender are becoming more important in the selection process than finding the most qualified nominee, that can also add to the delays.”

Med Mal Reform a Key to Budget Deal

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice applauds the inclusion of medical malpractice reform in the bipartisan Gang of Six debt ceiling plan that was reported to be gaining traction on both ends of Pennsylvania Avenue yesterday. CFJ takes no position on the overall structure of a deal. However, we believe the inclusion of malpractice reform in any compromise is good news both for conservatives’ long-held goal of reforming the nation’s medical liability system and – because it will encourage conservatives’ acceptance of a deal – for hopes of resolving the debt ceiling impasse.

The Gang of Six plan follows the recommendation for “an aggressive set of reforms” to the medical liability system contained in the December 2010 budget-balancing report of the bipartisan Bowles-Simpson Commission. The Commission concluded that the current liability system “leads to an increase in health care costs … both because of direct costs – higher malpractice insurance premiums – and indirect costs in the form of … ‘defensive medicine.’” Accordingly, the commissioners recommended at least four major changes to the rules of malpractice litigation, in addition to the creation of specialized “health courts” for medical malpractice lawsuits.

Under the Gang of Six plan, the final details of medical malpractice reform would fall to the Judiciary Committee. The Gang’s plan requires various congressional committees to write the legislation implementing the plan’s promised savings in entitlement programs.

Medical malpractice reform is arguably conservatives’ favorite prescription for containing health care costs. Thus, its inclusion in the Gang of Six plan could play an important role in motivating otherwise skeptical House Republicans to support the plan.

The bad news is that the initial summary of the Gang of Six plan released yesterday contains no specifics about the malpractice reform. To be worthy of conservatives’ support, a final debt ceiling compromise must contain specifics, such as a requirement for implementing all of the litigation rule changes recommended by the Bowles-Simpson Commission and a specific savings target that would encourage aggressive implementation of the reforms. As the details of the Gang of Six plan are hashed out, we encourage Republican negotiators to focus on these specifics.

A study by PriceWaterhouseCoopers estimated that ten percent of the nation’s health care spending is consumed by the costs of defensive medicine, medical malpractice insurance, and malpractice litigation. Thus, if done right, aggressive medical malpractice reform would result in huge budget savings through lowered Medicare, Medicaid, and other federal spending for health care.

Including malpractice reform in a deal would not only help sell it to conservatives, but would also make it popular with the American people generally. After all, “83 percent of the nation's electorate want Congress to address reform of the medical malpractice system as part of any health care reform plan,” according to a 2009 survey reported by Medical News Today.

Finally, fairness requires the inclusion of malpractice reform in any budget deal. Given that up to 40 percent of medical malpractice lawsuits are groundless, according to a study by the Harvard School of Public Health, reigning in the excesses of trial lawyers in this area is a moral as well as financial imperative. As the Bowles-Simpson Commission implicitly recognized, those excesses are part of the reason for our runaway budget deficit. If the pain of balancing the budget is to be shared by all, surely trial attorneys must bear their share of the burden.

As former Democratic National Committee chairman Howard Dean admitted, the only reason why medical malpractice reform was not included in ObamaCare was “because the people who wrote it did not want to take on the trial lawyers." If President Obama and Congressional Democrats are now ready to take on the trial lawyers, we welcome their help in accomplishing this important and long-sought reform.