November 26, 2006

Brownback Still Waiting

An Associated Press story today reports, in its opening sentence, that Sen. Brownback (R- Kan.) "is considering whether to stop blocking [liberal district court nominee Janet Neff] over concerns her appearance at a lesbian commitment ceremony betrayed her legal views on gay marriage." The story is based on comments Brownback made during an appearance this morning on ABC's ''This Week." But a read of the full article and a review of the show's transcript reveals there's nothing new here.

Sen. Brownback merely stated a virtual truism – "I don't think it necessarily does" – when asked whether attending the lesbian commitment ceremony of a next-door neighbor should "disqualify someone from the federal bench." Brownback then went on to repeat what he has previously said: "what I want to know is what does it do to her look at the law? What does she consider the law on same-sex marriage, on civil unions, and I'd want to consider that."

My point here is to set the record straight. I'm not rooting for Sen. Brownback to indefinitely maintain the hold on Neff. While I hope Neff will reverse her refusal to answer Brownback's written questions on a constitutional right to same-sex marriage, Republicans should stick to their principles and use holds in the pursuit of additional information, not as an indefinite delaying tactic. If it becomes clear that getting additional information from Neff is hopeless, the hold should be lifted and a floor vote should proceed with each senator taking into account Neff's refusal to answer Brownback's query.

On a more practical note, removing the hold on Neff would assumably result in Sens. Levin (D - Mich.) and Stabenow (D - Mich.) removing their hold on the two more conservative nominees to the Western District of Michigan.

November 21, 2006

Is There a “Bench-Clearing Brawl” Coming on Judges?

Investor’s Business Daily recounts what happened to the judicial nominations process when the Democrats took over in 1986 and 2001, and wonders about the prospects of President Bush’s current batch of nominees.

Hugh Hewitt, in an article for ABC News, apparently does not think those prospects look too good with a new Democratic majority that “is not confident and knows the narrowness of the Nov. 7’s win, and the radical nature of its base.”

November 15, 2006

Roberts, O'Connor and Others Speak on the Election of Judges

A report from Fox's Megyn Kendall. (Look under "Other Features.")

No More Alitos

Speaking to the New York Observer, Sen. Chuck Schumer says that allowing Samuel Alito to join the Supreme Court was the single greatest failure of the Democrats as an opposition party. And I believe Alito's confirmation was the greatest achievement by Republicans in an otherwise lackluster 109th Senate. So there's one issue Chuck and I see eye to eye on.

Schumer swaggers through the interview – which touches on a variety of issues – calling Dick Cheney's influence "Rasputin-like" and warning "One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won’t happen [now]." Ominously, the Observer reporter concludes that "From now on, all the President’s judicial appointments will need to meet the requirements of Mr. Schumer."

November 14, 2006

Erroneous Errol

In a silly, sycophantic article in today’s New York Daily News, Errol Louis effusively praises Chuck Schumer for his past obstruction of “right-wing judges” and tells us that Schumer has no plans to change his tactics in the next Congress, especially since he will now be the chairman of the powerful Subcommittee on Administrative Oversight and the Courts.

Now, usually I would laugh off such an obviously ridiculous article, however, there is one outrageous and irresponsible claim that I just can’t let go by without an answer: Mr. Louis claims that the Bush administration has nominated judges “according to a religious litmus test, in violation of America's long tradition of separating church and state.”

This contemptible assertion is completely false. President Bush has nominated men and women of every race, color and creed for the federal bench and to posts in his administration. Not even his worst enemies in the Senate would claim (as least I hope not) that the President has some sort of “religious litmus test” when it comes to nominating judges.

Mr. Louis, is Chief Justice John Roberts a “fundamentalist zealot”? Is Consuelo Callahan? Is Jerome Holmes?

Mr. Louis also does not seem to understand the difference between a judge and a politician, but we’ll leave that discussion for another time.

No Real Liberals on SCOTUS

You’ve got to love the categorization of the nine Supreme Court justices at the end of this Newsday article. Breyer, Ginsburg, Souter, and Stevens are listed under the label “Moderate Liberals,” which, at best, is an accurate description of one of them – Breyer. And what is the one true moderate on the Court – Anthony Kennedy – listed as? A “Conservative,” along with Alito, Roberts, Thomas, and Scalia. Apparently, even a “Moderate Conservative” label was considered too liberal for Justice Kennedy. The article explains that “Justice Kennedy is conservative but not viewed as a reliable vote against traditionally liberal issues.” Huh??

November 12, 2006

Prospects in the Democratic Senate

In today's New York Times, Neil Lewis opines that "the impending Democratic takeover of the Senate . . . will produce a vast change in . . . President Bush’s effort to shape the federal bench with conservative judicial nominees." While there will certainly be a significant change, especially with regard to a possible third Bush Supreme Court nomination, "vast change" is almost surely an overstatement, as Ed Whelan has noted.

Given the very slow and uncertain road traveled by the President's conservative circuit court nominees – particularly in the 9+ months since Justice Alito was confirmed – it is hard to imagine a dramatic change for the worse. For example, though Lewis is likely correct that the nominations of Haynes, Myers, Boyle, and Wallace are "doomed," that is not much of a change from the pre-election scenario, as anyone who observed the lackluster effort by Republicans in recent months knows.

Apparently, Democratic stalwart Ron Klain has not been a close observer of the judicial nomination scene, given his assertion that "the Bush administration has played the game of judicial selection very hard and very far to the right for the past six years with little moderation." Even if one plays along with the Democrats' game of applying political labels to judges who believe in judicial restraint, at least half of the President's nominees to the appeals courts have been moderates who inspired little or no Democratic opposition.

Lewis is similarly out of touch with reality when he claims that "the administration had a no-lose situation in naming staunch conservatives to the bench: their choices would either be confirmed or their defeat would provide a strong campaign issue." If so, what explains the large number of moderate nominees and the low profile of the judges issue in the just ended election campaign?

(cross-posted at ConfirmThem)

November 03, 2006

Point of Law roundtable on midterm elections

Point of Law, a website I run sponsored by the Manhattan Institute and American Enterprise Institute, is currently in its fourth day of a roundtable discussion of the upcoming election and its implications for law (especially the environment for litigation). Among the topics that have come up so far: the implications of likely Democratic gains for judicial nominations and liability reform, this year's crop of ballot measures, the politically charmed life of state attorneys general, and: is Iowa going to send Congress its next John Edwards? Much more to come, too -- stay tuned.