May 24, 2006
May 23, 2006
Good summary of the state of play.
More stalling, smearing, and fumbling on judicial nominees
By Kate O’Beirne
The conservative dissatisfaction with President Bush’s performance, which has recently prompted tougher talk from Bush on border security and spending restraint, now threatens the support he has enjoyed on judicial nominations. In the past year, only two federal-appeals-court nominees have been confirmed, and no nominee has even been selected for nine of the current vacancies.
Conservative activists complain that the momentum following the successful nominations of Chief Justice John Roberts and Justice Samuel Alito has been squandered, owing to White House and Senate inattention. While these White House allies saw a chance to score easy goals after the Supreme Court fights, Senate Democrats and their liberal supporters have been on vigorous defense. Sen. Harry Reid is vowing to filibuster one candidate whose nomination has been pending for five years; meanwhile, the American Bar Association (ABA) recently downgraded its rating of another nominee, and has given a unanimous “unqualified” rating to a third. If Republicans want to rally conservative voters with the issue of judges this November, they have to be more aggressive and effective in defending the nominees under assault.
“A good fight on judges does nothing but energize our base,” says South Dakota’s Republican senator John Thune. “Right now our folks are feeling a little flat. They need a reason to get engaged, and fights over judges will do that.” But some of the administration’s most loyal supporters think too many Republicans lack the stomach for the fight. In early May, key Bush allies on judicial nominations declined to attend a large meeting at the White House in order to avoid so publicly airing their serious dissatisfaction with the way the nominations are going. They fault both ends of Pennsylvania Avenue. “There is a lot of lip service paid to the importance of judges, but no real effort is made,” complains one conservative leader.
The White House will reportedly soon be sending about two dozen judicial nominees to the Senate for confirmation. The fate of these nominees will depend on the willingness of the White House and Senate Republicans to counter the kind of objections, distortions, and smears that have been leveled against previous nominees.
Brett Kavanaugh, a White House lawyer who previously worked for independent counsel Kenneth Starr, was nominated to the D.C. Circuit Court of Appeals three years ago. When the seven Republicans and seven Democrats in the “Gang of 14” blocked a Senate vote that would have put an end to judicial filibusters last year, preferring instead to allow filibusters in “extraordinary circumstances,” Kavanaugh’s nomination stalled. Owing to the delay, Kavanaugh had to be renominated by President Bush, which gave the ABA an excuse to revisit its previous “well qualified” rating. On second look, a majority of the ABA downgraded Kavanaugh to “qualified.” The committee’s chairman explained that the committee now had concerns that Kavanaugh — a former Supreme Court clerk and current White House staff secretary — lacks the requisite judicial temperament because his experience is too “insulated.”
Although Judiciary Committee chairman Arlen Specter initially balked at the Democrats’ demand for a rare second hearing on the nomination, he eventually relented and gave Kavanaugh’s critics another crack at him. Following the second hearing, Democrats who never had any intention of supporting Kavanaugh in the first place opposed his nomination, and he was sent to the Senate floor on a party-line vote. Although Majority Leader Frist pledged to hold a final vote on his nomination before the Memorial Day recess, a busy Senate calendar could further postpone it.
Republicans have also permitted district-court judge Terrence Boyle, a former aide to Jesse Helms, to be tormented for the past five years. Appointed by President Reagan in 1984, Boyle was nominated to the Fourth Circuit Court of Appeals by the first President Bush in 1991, and by his son ten years later. Although the ABA gave him a unanimous “well qualified” rating, he was blocked by former senator John Edwards, while Senator Reid launched attacks about his allegedly high rate of reversals. “In the years he’s been there, which hasn’t been very long, he has been reversed 165 times,” Reid charged. In fact, Boyle has been a federal judge for 22 years, has ruled in over 12,000 cases, and has a lower reversal rate (7.5 percent) than the national average (8.6 percent).
Boyle’s nomination was finally approved by the Judiciary Committee on a party-line vote last year, but members of the Gang of 14 are now declining to support him, owing to ethics charges recently raised by a left-wing outfit. In early May, the Center for Investigative Reporting claimed that Boyle has ruled in nine cases involving companies whose stock he owned. Harry Reid called this report “the clincher,” and it was trumpeted in the online magazine Salon. Democratic members of the Gang of 14 demanded another hearing for Judge Boyle while Sen. Lindsay Graham, a GOP member of the gang, refused to say whether Boyle still had his support.
The White House and Senate Republicans were tongue-tied in response to the charges, although phony ethics concerns are routinely raised about President Bush’s judicial candidates in the hope of complicating their nominations. Judge Roberts was accused of failing to recuse himself from a terrorist case while he was allegedly courting favor from the White House, and Senate Democrats claimed that Judge Alito’s investments in a Vanguard account created conflict-of-interest problems. In Boyle’s case, only Senate outsiders, including some of his former law clerks, have been aggressively defending him. These defenders provide evidence that thoroughly refutes some of the report’s assertions, and make a convincing case that any seeming ethical lapses were small, inadvertent, and no reflection on Boyle’s integrity. Still, given the GOP’s “one step forward, one step back” approach to judicial nominations, conservatives fear that, once Kavanaugh is approved, some Senate Republicans will be willing to toss Judge Boyle aside.
The ABA has its own recusal problems, with the result that Michael Wallace, a former Rehnquist clerk and aide to Sen. Trent Lott, faces what looks like an insurmountable problem in winning confirmation to the Fifth Circuit Court of Appeals. On May 10, the ABA committee announced that Wallace had received a unanimous “not qualified.” The Mississippi lawyer is a battle-scarred veteran of the wars over the Legal Services Corporation (LSC) in the 1980s. Wallace’s supporters call his efforts to end liberal activism and deliver services to the poor as a Reagan appointee on the corporation’s board “heroic,” but his liberal adversaries saw his reform efforts differently. Among his harshest critics 20 years ago were Michael Greco, the current president of the ABA, and Stephen Tober, who now chairs the ABA’s committee on judges. Lawyers recall Greco’s castigating Wallace at a convention in Hawaii in the 1980s; and a transcript from December 1987 reveals that when Tober, then president of the bar in New Hampshire, appeared before the LSC board chaired by Wallace, there was a heated personal exchange in which Tober accused Wallace of having a “hidden agenda.” Given this contentious history and the ABA’s insistence that those they judge avoid even the appearance of impropriety, Tober should have recused himself from pronouncing on his old adversary.
While Wallace’s allies see old grudges at play, they have little hope that GOP senators will rally to defend a nominee saddled with a unanimous ABA thumbs-down after failing to rally behind nominees even the ABA has smiled upon. Republicans willing to abandon the president’s nominees risk their voters’ doing the same to them this November.
Kate O’Beirne, NR’s Washington editor, is the author of Women Who Make the World Worse: and How Their Radical Feminist Assault Is Ruining Our Schools, Families, Military, and Sports.
May 22, 2006
Senator Frist Just Filed Cloture on Kavanaugh
May 12, 2006
Blame the Supreme Court, not McCain
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.
May 11, 2006
Kavanaugh, Cox and Ludington Out of Committee
Boyle Clerks Circulating Document
"Unbiased" ABA Ratings?
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
Democ., Rating: Guido Calabresi, WQ/Q
Repub., Rating: Ralph K. Winter, Q
Democ., Rating: Diane Wood, WQ
Repub., Rating: Richard Posner, Q/NQ
Democ., Rating: Karen Nelson Moore, Q/WQ
Repub., Rating: Frank Easterbrook, Q/NQ
Democ., Rating: William Fletcher, WQ
Repub., Rating: John Noonan, Q/NQ
Democ., Rating: Mary Beck Briscoe, WQ
Repub., Rating: Deanell Reece Tacha, Q/NQ
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.
May 10, 2006
ABA's Big-Time Liberal
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.
"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
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.
May 09, 2006
Everything but the Kitchen Sink
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
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.”
May 05, 2006
Lies, Damn Lies, and Statistics
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.
May 04, 2006
Salon.com Article on Boyle Discredited
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.
TX tort reform.
May 02, 2006
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.