Judged Guilty By Association

In my op-ed in today’s Real Clear Politics, I discuss the guilt-by-association game Senate Democrats and their allies are playing, using judicial nominees as targets for their sublimated anger against Ken Starr, Jesse Helms, Donald Rumsfeld, and the like.

Senator Frist Just Filed Cloture on Kavanaugh

A source close to the situation tells CFJ that Majority leader Frist has filed cloture on DC Circuit nominee Brett Kavanaugh.

Blame the Supreme Court, not McCain

As much as I hate to defend John McCain’s position on campaign finance regulation, I must agree with Ramesh Ponnuru that conservatives criticizing McCain’s recent remarks on the issue – for example, George Will – are overreacting. Specifically, on the Don Imus Show, McCain said “I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt.” This statement is disturbing because it posits that the constitutional right to free speech can and should be trumped by the latest good-government theory. Ramesh defends the statement by explaining that McCain “wasn't expressing disdain for the First Amendment as he understands it, but disagreement about what the First Amendment means.”

I would defend McCain’s comment from another angle: McCain was simply restating a principle set forth by the U.S. Supreme Court 30 years ago in Buckley v. Valeo, the seminal and still-governing campaign finance case. In Buckley, the Court upheld federal caps on campaign contributions after finding that

“the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms.”

The Court identified the “weighty interests” as “limit[ing] the actuality and appearance of corruption resulting from large individual financial contributions.” In other words, First Amendment freedoms can be trumped, at least to some degree, by good-government policies.

My point is not that we should all come around to John McCain’s way of thinking. Instead, it is that the threat to free speech posed by campaign finance laws will be eliminated only when the Supreme Court corrects its 30-year-old error. Once the Supreme Court gets it right, we won’t have to worry about what John McCain thinks of the First Amendment. Until then, politicians of all stripes will find campaign finance regulation too seductive to resist.

Kavanaugh, Cox and Ludington Out of Committee

Nice breakdown by Dave II over at RedState on the judges that made it out of committee today. Congrats to Brett Kavanaugh, Sean Cox and Thomas Ludington for finally making it out of committee and onto the floor.

Boyle Clerks Circulating Document

How Appealing reports that former clerks of Judge Terrence Boyle are circulating a document defending him against the Salon.com allegations which have already been undermined.

Hat tip to Andrew over at the indispensable ConfirmThem.

"Unbiased" ABA Ratings?

After the Senate Democrats demanded that the Bush Administration officially re-nominate Brett Kavanaugh the ABA suspiciously changed its rating of Majority Well-Qualified/Minority Qualified (WQ/Q) to Majority Qualified/ Minority Well-Qualified. As I blogged earlier, Professor Bainbridge discovered that the Standing Committee was stacked with liberals, including Friend of Hillary Marna Tucker. Now, despite an outstanding resume which includes degrees from Harvard and UVA Law (where he was on the law review), clerkships with Justice Harry G. Walker of the Supreme Court of Mississippi and the late Chief Justice William Rehnquist, and a partnership in one of the most prestigious firms in the nation, Michael Wallace has been rated “Not Qualified” (NQ) by the ABA with no explanation whatsoever.

Is there any precedent for this partisanship? Unfortunately, there’s a great deal.

Here’s a chart from the Federalist Society’s ABA Watch from 1996:

ABA ratings of Judicial Nominees

Second Circuit
Democ., Rating: Guido Calabresi, WQ/Q
Repub., Rating: Ralph K. Winter, Q

Seventh Circuit
Democ., Rating: Diane Wood, WQ
Repub., Rating: Richard Posner, Q/NQ

Sixth/Seventh Circuit
Democ., Rating: Karen Nelson Moore, Q/WQ
Repub., Rating: Frank Easterbrook, Q/NQ

Ninth Circuit
Democ., Rating: William Fletcher, WQ
Repub., Rating: John Noonan, Q/NQ

Tenth Circuit
Democ., Rating: Mary Beck Briscoe, WQ
Repub., Rating: Deanell Reece Tacha, Q/NQ

DC Circuit
Democ., Rating: Patricia Wald, WQ
Repub., Rating: Laurence Silberman, Q/NQ
Democ., Rating: Abner Mikva, WQ
Repub., Rating: James Buckley, Q/NQ
Democ., Rating: Harry Edwards, WQ/Q
Repub., Rating: Stephen Williams, Q/NQ
Democ., Rating: David Tatel, WQ
Repub., Rating: Raymond Randolph, WQ/Q
Democ., Rating: Raymond Randolph, WQ/Q
Repub., Rating: Clarence Thomas, Q

Posner not qualified? Easterbrook not qualified? Is there anybody else besides me who finds that absurd?

Perhaps the worst example of this obvious bias problem was when Robert Bork was nominated to SCOTUS by Reagan in 1987. Bork, a former professor of Constitutional Law at Yale and one of the most respected legal minds in the country was rated “Unanimously Well-Qualified” when he was nominated to the D.C. Circuit court by Reagan. However, when he was nominated to SCOTUS things were suddenly different. Here is Bork’s rendition of what occurred from his book The Tempting of America: The Political Seduction of the Law:

“I expected no difficulty when nominated to the Supreme Court since I had not changed. But the committee had…I was told there would be several adverse votes. I asked why and was told that the committee now included members of groups vociferously opposed to me. They had been put on the committee, it was said, to ensure ‘political balance.’ But if the committee was to judge only professionalism and not philosophy, why was there a need for political balance?”

Eventually, there were four “Not Qualified” votes cast against ten “Well-Qualified” and one abstention. The split vote gave those opposed to Bork room to maneuver and claim that Bork did not have the “judicial temperament” (i.e. he believed the constitution should be interpreted as written) to be on the Supreme Court. It quickly came out who had opposed him on the committee.

“Once committee member was also member of the Democratic National Committee Finance Committee and a…contributor to Joe Biden’s campaign for the Democratic Party’s presidential nomination. He remained on the committee and voted on my nomination after Biden had announced he would lead the fight against me.”

But the ABA’s attempt to undermine Reagan’s nominees to the federal bench went beyond just politicizing the Standing Committee.

“The ABA’s committee became more deeply involved in controversy when it developed that it had leaked the names of Reagan nominees to liberal, but not to conservative, activist groups in advance of the public announcement of the nominations in order to get their views.”

Bork comes to this conclusion about his experience with the ABA’s Standing Committee:

“This episode confirms, it must be feared, that none of the institutions of the law are free of the increasing politicization of our legal culture.”

As recent events have shown, Bork has been proven right again.

See also John Hinderaker's take on the Wallace rating.

ABA's Big-Time Liberal

Here’s another observation about Professor Bainbridge’s discovery that, of the nine members of the ABA Standing Committee on the Federal Judiciary who have made federal campaign contributions since 2002, six contributed mainly to Democrats. One of those six is John Payton. One need not look at his campaign contributions to know that he is a big-time liberal activist. He is on the board of and has served as co-chair of the ultra-liberal Lawyers' Committee for Civil Rights – both the national organization and the DC Chapter. He has devoted much of his career to defending racial preferences, arguing the pro-preferences side in two of the biggest affirmative action cases heard by the Supreme Court – Gratz v. Bollinger and Richmond v. Croson – and filing various pro-preference amicus briefs. He has also waged war against “Big Tobacco.”

The future of affirmative action and the other causes that Payton has devoted his life to depend very much on the ideological composition of the federal bench. John Payton would have to be super-human for that not to affect the ratings he gives to the President’s judicial nominees as a member of the Standing Committee. Payton is an impressive litigator and a nice guy, but he’s about as capable of being objective about Bush’s nominees as I am.

Unbiased ABA? Prof. Bainbridge has the scoop.

While most of the MSM is simply reporting that Kavanaugh's rating was downgraded, Prof. Bainbridge uncovers the make-up of the ABA Standing Committee that suspiciously changed its rating after some Democrats started alluding to a possible filibuster. Unbiased and non-partisan? Perhaps not.

"Just out of curiosity, I used the Opensecrets.org campaign finance database to determine whether any of the Standing Committee's members had identifiable partisan affiliations. Out of the 15 committee members, 9 had made federal campaign contributions in the 2002, 2004, and/or 2006 election cycles. Two-thirds of those (6) had contributed mainly to Democrats:

• Roberta D. Liebenberg: $750 to Representative Allyson Schwartz (D - PA)
• Kim Askew: $250 to Senator Barbara Boxer (D-CA) and several contributions to Mayor Ron Kirk (D-Dallas, TX)
• Charles Thompson: multiple contributions to Senator Tim Johnson (D-SD)
• Teresa Wynn Roseborough: multiple contributions to, among others, John Kerry, Max Cleland, and Wes Clark
• Marna Tucker: multiple contributions to Hillary Clinton and Emily’s List
• John Payton: multiple contributions to numerous Democratic candidates and PACs"

J. Michael Luttig Resigns

The Wall Street Journal reports that J. Michael Luttig, one of the most respected judges in the country, has resigned from the Fourth Circuit to be Boeing’s General Counsel. As those reading this blog already know, Luttig was rumored to be on the “short-list” of prospective SCOTUS nominees last year.

UPDATE: Here's the LegalTimes article by Tony Mauro.

UPDATE #2: Here's the letter of resignation Luttig wrote to the President in PDF form.

Everything but the Kitchen Sink

I attended Brett Kavanaugh's rehearing before the Senate Judiciary Committee today and, boy, did the Democrats ever prove the uselessness of subjecting this DC Circuit nominee to a second hearing. Not content to subject us all to a repeat of the lines of questioning they exhausted during Kavanaugh's first hearing, Judiciary Democrats went off on a series of irrelevant tangents today. On a number of occasions, the people in attendance looked at each other as if to ask "What does this have to do with Kavanaugh's nomination?" This is what happens when senators demand a second hearing for purely political reasons, regardless of the fact that they have nothing new to say.

Here then are the senators in the running for today's Kitchen Sink Award for irrelevant questions and remarks, along with a few examples of their contributions:

Sen. Schumer (D - NY):
Schumer began vying for the award by asking Kavanaugh whether Karl Rove was involved in picking judicial nominees. Though Brett played a role in picking judges while serving in the White House Counsel's Office, those watching the hearing could not fathom what Schumer was getting at. One can only assume he was hoping that the controversy surrounding Rove would rub off on Kavanaugh. Schumer then topped himself by asking whether Kavanaugh would have voted to impeach Bill Clinton had Brett been in Congress at the time. I was waiting for Schumer to ask Brett whether he would have dropped the atom bomb on Hiroshima had he had been president in 1945, but Schumer ran out of time.

Sen. Durbin (D - IL):
Durbin – apparently an adherent to the guilt-by-association theory – asked Kavanaugh if he knew Manny Miranda, the whistleblowing Senate staffer at the center of the Memogate scandal. Brett said yes, proving absolutely nothing. Durbin also queried Brett as to whether Jay Bybee of the Ninth Circuit should have been confirmed in light of the "torture memo" he authored – a tortured attempt by Durbin to link Kavanaugh to the Administration's alleged torture of terrorists.

Sen. Leahy (D - VT):
Despite noble tries by Sens. Durbin and Schumer, today's Kitchen Sink Award goes to Sen. Leahy for the sheer volume of his irrelevant questions and remarks. For example, he asked Kavanaugh what and when he knew about the Valerie Plame affair. And, returning to Durbin's guilt-by-association theme, Leahy quizzed Brett about whether he knew Jack Abramoff, Michael Scanlon, and others involved in the lobbying scandal.

But Leahy didn't limit himself to irrelevant questions. He also indulged in irrelevant speechifying during his "questioning" of Kavanaugh, announcing that he was calling on the President to withdraw the nomination of Terrence Boyle, and bragging about the fact that, while chairing the Judiciary Committee, he moved Bush's nominees through at a faster pace than chairmen Specter (R - PA) and Hatch (R - UT). Never mind that Leahy achieved those numbers by focusing on district court nominees and uncontroversial appellate nominees.

It should be noted that Sen. Leahy was also the winner of the Kitchen Sink Award at last Thursday's executive session of the Judiciary Committee. During the committee's relatively brief discussion of Kavanaugh and a handful of other nominees, Leahy managed, at least twice, to work the arrest of Claude Allen – a former Fourth Circuit nominee and top Bush advisor – into his remarks. Congratulations to Sen. Leahy for once again beating out some very tough competition on the committee!

Who is the real relic and who is still relevant? The Electoral College vs. 3 Electoral Losers

Apparently, three political relics who lost their last campaign over 25 years ago, John Anderson (yes, he’s still alive), Birch Byah (father of Evan) and John Buchanan are leading a movement to legalize vote stealing in an attempt to undermine the Electoral College created by our Founding Fathers in the U.S. Constitution. The “Campaign for the National Popular Vote” is an attempt, without amendment, to change our system by forcing electors to ignore the will of the people of their state and vote for the person who the state believes won the nationwide popular vote.

Phyllis Schlafly has an excellent article today on the Townhall website about this movement. Here are a few key quotes, but I strongly suggest that one read the full article:

“It's ridiculous and un-American to try to force electors to vote against their constituents. Yet the campaign proposes requiring a state like Louisiana to vote for the candidate who won in other states such as New York…The Electoral College is the successful vehicle by which a presidential candidate achieves a majority in a functioning political process…Because of third parties, we've had many elections (including three of the last four) when no presidential candidate received a popular-vote majority. Abraham Lincoln won less than 40 percent of the popular vote and relied on his Electoral College majority for his authority…most elections are very close [and that fact] makes the Electoral College particularly advantageous. With our loose election procedures (that need to be reformed in several ways), it's easy to make credible charges of election fraud…An allegation of voter fraud in one state would begin a fatal chain reaction of challenges and recounts… Big-city machines would take over, and candidates from California or New York would enjoy a built-in advantage... The campaign proposal would also eliminate the constitutional role of Congress in dealing with the occasional happenstance of a candidate failing to get a majority of Electoral College votes. The Constitution dealt adequately with this problem in 1824.”

Lies, Damn Lies, and Statistics

In today's National Review Online, Byron York reports that a top Senate Republican leadership aide was recently touting the overall 87% confirmation rate for President Bush's judicial nominees. York suggest that this will make it harder to energize the Republican base about Democratic obstruction of nominees during the remainder of Bush's term. But that's true only if the leadership fails to remind the base that the 87% figure means little, because most of the nominations were for district courts, and those almost never stir up a fight. The most telling statistic is Republicans' batting average for the subset of judicial nominees that the Democrats and their allies on the Left decided to fight. There have been some glorious successes such as Judges William Pryor and Janice Rogers Brown, but for every Pryor and Brown there is a nominee that has dropped out or been waiting for years. In other words, the Republicans are batting about .500 for controversial nominees. That's a great number if you're a baseball player, but not so much for a party that's supposedly committed to an up or down vote on every judicial nominee.

Simply Unacceptable

Byron York suggests in today's National Review Online that Senate Republicans are willing to leave some Courts of Appeal nominees – such as William Myers and William Haynes – "in the lurch" in order to avoid a confrontation with their Democratic colleagues over a filibuster. It is not clear why Republicans would want to avoid a fight that they would likely win and that would surely energize their base. But putting that aside, Senate Republicans need to understand that leaving some nominees in the lurch is simply unacceptable to the Republican base, as well as offensive to anyone who desires a fair confirmation process. Democrats' past use of the filibuster to block Bush's judicial nominees – despite their majority support in the Senate – was unprecedented and repugnant and handing the same result to the Democrats on a silver platter – saving them the political costs of actually implementing a filibuster – is every bit as unacceptable.

That is not to say that all of the President's judicial nominees must be confirmed. Individual Republican senators should vote against any nominee they believe is less than qualified, and a handful of Republican votes against a nominee is enough to defeat that nominee on the Senate floor. But ALL of the President's nominees deserve an up or down vote on the floor. In fact, William Myers is already on the floor and lack of political will is the only thing stopping the Republican leadership from scheduling an up or down vote on him.

York reports that a key Senate Republican leadership aide told him recently that "We are simply committed to making the judicial nomination process work as intended – with every qualified nominee with majority support getting an up or down vote." Let's hope this statement reflects the leadership's intentions more accurately than York's suspicions.

Salon.com Article on Boyle Discredited

In a recent article by Will Evans for Salon.com, Judge Terrence Boyle, nominee for the Fourth Circuit Court of Appeals, is accused of ruling in favor of General Electric for his own financial benefit. In the article Mr. Evans claims “Boyle shot down the plaintiff’s [Kenneth R. Bursell] claims to long-term and pension disability benefits, granting him only a fraction of the money in short-term compensation for a debilitating mental condition.”

However, those allegations have now been discredited – by the attorney for Mr. Bursell. In a letter to The News & Observer, a paper in North Carolina, Mr. Andy Whiteman, Esq., the attorney who represented Mr. Bursell in his litigation against General Electric, not only disputes Evans’ claims in that case, he also rejects the contention being made by the Left that Boyle is somehow hostile to people with disabilities.

Key quotes from Mr. Whiteman’s letter:

“The Salon.com article was misleading and inaccurate. Boyle's rulings were favorable to Bursell…On Jan. 31, 2003 Boyle agreed with Bursell that he was entitled to have his claims for benefits reviewed by the court under the de novo standard, the most favorable standard of review available in such cases. Then, after conducting a bench trial in April 2003, Boyle ruled that Bursell was entitled to short-term disability benefits, denied his claim for a disability pension and dismissed without prejudice the long-term benefits claim. Finally, Boyle ruled on Aug. 25, 2004, that plaintiff was entitled to recover his attorney's fees from GE…Boyle's favorable decision on the short-term benefits claim convinced GE's claims administrator, MetLife, to approve long-term benefits for the maximum benefit period allowed under the plan. The claim for attorney's fees and costs was settled…According to the article, Boyle purchased GE stock two months before he issued his ruling in 2004. In fact he announced his expected ruling at the conclusion of the bench trial in 2003, before he purchased the GE stock. In any event, I do not believe that his ownership of less than $15,000 of GE stock creates even the appearance of a conflict of interest. In 2004 GE had $134 billion in revenue. The idea that a ruling over one employee's disability benefits could somehow benefit Boyle financially is ludicrous…I also disagree with groups which contend that Boyle is hostile to claims brought by disabled persons. I have represented a number of disability claimants in cases before Boyle, and am familiar with his rulings in other cases. His treatment of the parties has been entirely fair and evenhanded.” [emphasis added]

One has to wonder, did Mr. Evans even attempt to talk with Mr. Whiteman before he wrote the article? Or did what Mr. Whiteman have to say just not fit the story Mr. Evans wanted to tell? Either way, the onus is on Mr. Evans either to respond to Mr. Whiteman’s letter or to retract his statements about a well-respected federal judge who has been rated “Unanimously Well-Qualified” by the American Bar Association.

Kavanaugh: Too "young and inexperienced?"

Human Events and Matthew Franck at Bench Memos have reported that one of the Senate Democrats claims against Brett Kavanaugh is that he is too “young and inexperienced.”

However, a brief look at the history of both the D.C. Circuit and the U.S. Supreme Court shows how ridiculous these claims are on their face.

What do Presidents George H.W. Bush, Ronald Reagan, Jimmy Carter, Harry S. Truman and Theodore Roosevelt all have in common? They all nominated someone to the D.C. Circuit who is the same age or younger than Brett Kavanaugh is currently.

George H.W. Bush nominated current Chief Justice John Roberts to the D.C. Circuit Court in 1992 at age 37.

Ronald Reagan nominated one-time Supreme Court nominee Douglas H. Ginsburg to the court in 1986 when Ginsburg was just 40. Kenneth Starr was only 37 when President Reagan nominated him in 1983.

Harry T. Edwards was appointed to the court in February 1980 after being nominated by Jimmy Carter. At the time Edwards was 40 years-old.

In 1949 Harry Truman made three recess appointments to the D.C. Circuit who were later confirmed by the Senate. Two of them were as old as or younger than Kavanugh: George T. Washington (age 41) and David L. Bazelon (age 40). Bazelon was eventually replaced by Edwards.

In 1906 the Senate confirmed Charles Henry Robb, one of Theodore Roosevelt’s nominees to the court. Robb was 39 when he began his tenure on the court.

None of these nominees came to the bench with any previous judicial experience. Of these nominees only John Roberts was not confirmed and that was due to the election of Bill Clinton, not Roberts’ youth.

The Democrats criticisms also don’t hold up very well when you take into consideration the history of the highest court in the land. The U.S. Supreme Court has had several justices who were nominated before they reached the age of 42.

Liberal icon William O. Douglas was still 40 when he was confirmed by the Senate in 1939. This Franklin D. Roosevelt nominee had absolutely no judicial experience before ascending to the nation’s highest court.

Justice John Archibald Campbell was still two months shy of his 42nd birthday when he was confirmed by the Senate after being nominated by Franklin Pierce.

President Millard Fillmore made Benjamin Robbins Curtis a recess appointment to the Supreme Court when Curtis was 41.

One of the greatest Supreme Court Justices in history, Joseph Story, was only 32 when he was appointed by the “Father of the Constitution,” President James Madison.

The “Father of Our Country,” President George Washington, appointed the 38 year-old James Iredell to the Supreme Court in 1790.

A look at the biographies of the current U.S. Supreme Court also undermines the Democrats claims. Along with Roberts, Justices Anthony Kennedy and Samuel Alito were nominated to the federal bench before their 41st birthdays. Neither man had any prior judicial experience before being circuit court judges.

Obviously, the Democrats’ hypocritical and bogus claim simply does not stand up to the historical record.