'Hypocrisy' on the Right?

To return once more to the PFAW-blog's active criticism of CFJ and other organizations fighting for the fair treatment of federal judicial nominees, today I want to address in particular another one of Kyle's accusations. He writes,

"As for the claim that Democrats must ensure that 'each and every judicial nominee is given a hearing and is reported out of committee' … well, let’s just say that is not how Republicans operated under President Clinton either."

The embedded link points to an earlier post of Kyle's in which he claimed that "nobody on the Right ever seems to mention the nearly 50+ Clinton administration nominees who never received a Committee hearing or a floor vote, thanks largely to the Republicans."

This refrain has become a popular one among liberal critics of Judge Southwick and other Bush nominees - this idea that Democrats are only engaging in behavior for which Republicans set a precedent during the Clinton administration. I'll set aside for now the fact that I think it's somewhat counter-productive to exchange accusations of 'hypocrisy' in this case. Instead, in response I wanted to point to the transcript of an online chat hosted by the Washington Post back in 2003. In this chat, former CFJ executive director Sean Rushton ably addressed many common misconceptions about the treatment of Clinton's judicial nominees and the recent history of judicial confirmation process in general.

The whole transcript is worth reading; but in one portion in particular, Sean took the trouble of going through a mathematical breakdown of the fate of Clinton's nominees. Here's an excerpt that goes to the heart of Kyle's accusation of 'hypocrisy' on the part of 'the Right':

"Bottom line: in all 6 years that Chairman Hatch ran the Judiciary Committee while President Clinton was in office, there were fewer than 26 nominations left in Committee.

Compare this treatment to that accorded George H.W. Bush's nominees, when Democrats were in the majority and controlled the Judiciary Committee. Then, the Democrats failed to confirm 58 nominees over the course of only 4 years."

The point here is that counting up the number of Clinton nominees who were named but never confirmed is too simplistic a measure of whether or not those nominees were 'blocked' or 'obstructed' in some way by the Republicans in control of the Senate Judiciary Committee at the time.

And what's more, I'll say again that the issue here is not one of political payback or name-calling: Leslie Southwick is both professionally well-qualified and personally unassailable. A man of his caliber and character simply does not deserve to have his reputation so smeared by his critics.

Senator Chuck Schumer: President Gets No More Appointments to Supreme Court

Politico has the story on this:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.” . . . .

Leslie Southwick: more than qualified

A blogger known only as 'Kyle' has a post over at RightWingWatch (a blog connected to People For the American Way) that attacks the recent letter to the Senate Judiciary Committee, signed by more than 60 groups, that urged the Committee to expedite the process of confirming federal judges. Kyle accuses CFJ, along with its fellow organizations united in support of Judge Leslie Southwick (as well as the fair and timely execution of the Judiciary Committee's responsibilities more generally), of making "a series of strikingly hypocritical claims" in this letter.

One point in particular that I'd like to address here is Kyle's own claim that "Normally when it comes to judges, the Right just tends to accuse its opponents of being sexist, racist, or otherwise bigoted - so accusations that they are also hostile to our troops is a new, though not surprising, development."

Kyle seems quick to lump together and then dismiss the charges of racism, sexism, and bigotry that members of 'the Right' have leveled against their opponents. But in the case of Judge Leslie Southwick, these charges amount to more than just run-of-the-mill finger-pointing. Absolutely no credible evidence has been produced in support of PFAW's claims that Southwick's record reflects a "lack [of]...commitment to social justice progress". Indeed, the actual specific content of the two cases in Southwick's record most oft-cited by his opponents has been ably described (see, for example, Ed Whelan's analysis here). Furthermore, Southwick's colleagues, former clerks, commanding officer, and long-time associates - those who know him best both personally and professionally - uniformly praise this able jurist for his fair-mindedness, his integrity, and his modesty.

On the basis of all this evidence, to criticize Southwick's opponents for being "hostile to our troops" is not simply to engage in name-calling and finger-pointing for the sake of some petty partisan fight. To defend Southwick is to demand fair treatment for a man whose judicial record as well as character speak for themselves. Leslie Southwick's voluntary military service is not just a convenient talking-point for his defenders; it is yet one more compelling piece of evidence for his selflessness and commitment to service. These qualities, along with his proven record as a superbly well-qualified jurist, surely entitle Judge Southwick to something more than a modicum of our respect - and to a fair up-or-down vote on the Senate floor for his confirmation to the Fifth Circuit.

Specter causing trouble for future nominees

Politico notes the problems that Specter is aiming to cause:

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation.

Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.

"There are things he has said, and I want to see how well he has complied with it," Specter said, singling out Roberts.

The Specter inquiry poses a potential political problem for the GOP and future nominees because Democrats are increasingly complaining that the Supreme Court moved quicker and more dramatically than advertised to overturn or chip away at prior decisions. . . . .

Circuit Court updates

Yesterday, the White House sent four new judicial nominees to the Senate.

Catharina Haynes (Texas) has been nominated to the Fifth Circuit, and John Daniel Tinder (Indiana) to the Seventh. Shalom D. Stone (New Jersey) has been nominated to the Third Circuit vacancy created by Justice Samuel Alito's elevation to the Supreme Court.

Finally, Robert J. Conrad, Jr. (North Carolina) has been nominated to the Fourth Circuit vacancy created in 1994 by the retirement of Judge James Dickson Phillips, Jr. - the longest-standing vacancy in the federal court system.

This leaves four more vacancies in the still-critical Fourth Circuit, since Judge H. Emory Widener, Jr. has apparently announced his intention to assume senior status immediately - having previously indicated (in 2001) that he would wait to do so until a replacement was confirmed.

Four New Nominees

Yesterday afternoon, the White House announced four nominees to the U.S. Courts of Appeal. That leaves just six unfilled vacancies and one pending vacancy on the appeals courts (not counting the 12th seat on the D.C. Circuit). And it will bring to nine the number of circuit court nominees pending in the Senate. That removes the Senate’s last remaining excuse – “not enough nominees” – for the slow pace of circuit court hearings and confirmations this year.

And the nominees are:

Robert J. Conrad, Jr. (NC) for the Fourth Circuit seat vacated by the retirement of James Phillips.

Catharina Haynes (TX) for the Fifth Circuit seat vacated by the retirement of Harold DeMoss.

Shalom D. Stone (NJ) for the Third Circuit seat vacated by Samuel Alito.

John Daniel Tinder (IN) for the Seventh Circuit seat vacated by the retirement of Daniel Manion.

The latest on Southwick

Alexander Bolton writes in The Hill today about Senator Specter's apparent 'softening' of his recent battle-cry regarding the stalled Southwick confirmation process. Perhaps this apparent change of course highlights a very real "discrepancy between Specter's public statements and the combative ardor he showed in private". Or perhaps Specter is just "trying to finesse" his comments for the "collegial and self-consciously polite environs of the Senate".

But in either case, as Andrew Hyman points out, it doesn't matter. Southwick's qualifications as a jurist and a patriot speak for themselves, and neither Republican timidity nor Democratic obstruction should stand in the way of a fair and timely up-or-down vote on his confirmation.

Defining 'judicial activism'

Jeffrey Rosen's piece in The New Republic - "Will John Roberts ever get better?" - declares forcefully that "Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint."

Ed Whelan has already posted an incisive commentary on Rosen's piece. But it strikes me that this exchange is just one in a series of similar writings and responses that has recently come to the forefront of the attempt to characterize the new Supreme Court.

Whelan points out that

"Rosen is certainly correct that many, including some conservatives, misuse the term 'judicial restraint.' But Rosen counters that misuse with his own misuse, his continued misguided advocacy of a 'neutral meaning' of the term—under which any vote to strike down legislation, even when clearly compelled by the Constitution, is not an exercise of judicial restraint, and any vote, no matter how wrong, to leave legislation in place, is an exercise of judicial restraint."

This is unassailable reason, and it's strikingly similar to an argument that Ilya Somin made last week in response to Andrew Cohen's misuse of the terminology of 'judicial activism'.

Somin writes,

"Cohen's argument equates conservative criticism of 'judicial activism' with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech."

These charges of 'conservative judicial activism' have become a favorite refrain among liberal critics of the outcomes of the most recent Supreme Court decisions. They take great pleasure in co-opting conservative criticism of liberal judicial activism, and instead leveling those charges against Justices Roberts, Alito, Scalia, and Thomas. But as Whelan and Somin have taken the time to point out, critics like Rosen and Cohen simply miss the point, and misapply the terminology of 'judicial activism'.

As Clint Bolick wrote, back in April of this year, "When judges swear fealty to the Constitution, they must be mindful of the danger of exceeding the proper confines of judicial power, but as well the even greater danger of abdicating it."

The act of striking down an unconstitutional precedent might well qualify as 'judicial activism' in the 'neutral' sense of the term that Rosen wants to use. But as Somin puts it, "failure to strike down unconstitutional laws is no less a departure from the proper judicial role than judicial overruling of laws that the Constitution permits." This is the correct understanding of the proper judicial role, and false charges of 'judicial activism' only highlight Cohen's and Rosen's misapplication of the terminology.

Renewing the battle for Southwick

In the news today: a promising and principled stand from Sen. Arlen Specter on the matter of Leslie Southwick's stalled confirmation process in the Senate.

Both The Politico and The Hill are reporting that in the aftermath of a Tuesday afternoon meeting held in Specter's office and assembling 'several leading conservative activists', Specter emerged ready to fight once again for Southwick's confirmation.

Now that Specter "has fired an early volley in what Senate Republicans and conservative activists predict will escalate into another pitched battle with Democrats on judicial nominees", as described in The Hill, it is time to rally the troops and renew the battle for Southwick. This highly-qualified nominee deserves at the very least a fair up-or-down vote on the Senate floor.

Let's hope, moreover, that Ed Whelan is right in believing that "Senate Republicans have the ammunition they need to win this fight, either by getting Southwick confirmed or by exposing Senate Democrats as the puppets of the Left."

Franck on 'Scalia-Thomas Derangement Syndrome'

Yesterday, Matthew J. Franck had a striking piece at NRO concerning the alarming tendency of liberal commentators to resort to "sneers, ad hominem attacks, begged questions, and appeals to the passions of readers already inclined to view matters" in the same light as they do. This is not only bad journalism; it is misology ("the hatred of reason itself"), and Franck is not afraid to label it as such.

He cites two recent examples from the New York Times and one from the Washington Post, and points to the common thread uniting them: a casual dispensing with proper argumentation (premises, conclusion).

Franck's first example is Neil A. Lewis's 'news' article from the Monday's Times. Leaving aside any serious investigation of Thomas's own arguments in the Seattle/Lousville cases, Lewis turns instead to pondering "[how] much [Thomas's] legal views are shaped by the difficulties of his own experience with race and education". The article is packed with speculation about Thomas's own "unhappy journey through integrated school situations". There is no real critical inquiry here regarding the substance and structure of Thomas's opinion.

This is a real concern, as Franck rightly points out. A lack of logic and reasoning in journalistic analysis of the Supreme Court reflects an unfortunate 'Scalia-Thomas Derangement Syndrome' that simply rejects any serious study of these influential Justices for their argumentation and their judicial philosophy.

Over at BenchMemos, Ed Whelan has a series of posts that launch a scathing attack on the shameful treatment of Leslie Southwick at the hands of PFAW and their Democratic 'puppets' in the Senate.

Whelan points to the hypocrisy of these Democratic Senators (here), eviscerates the baseless and "ridiculous" smear campaign led by PFAW and HRC against Southwick's record and person (here), and cites a letter from the Mississippi National Guard's Adjutant General that gives evidence for Southwick's unassailable character and bravery (here).

Whelan summarizes it best himself:

"In short, the real story here is that Senate Democrats kowtow to their reckless crazies on the Left, even at the expense of according minimally decent treatment to an American hero. This is a disgraceful story that President Bush and Senate Republicans need to make sure the American people know."

The game has changed; the window is closing

Anna Palmer of the Legal Times pretty much says it all with the sub-title of her piece yesterday: "inaction from the White House and gridlock on the Hill leave four slots sitting vacant." She writes here in particular about the 4th Circuit (where there's still a crisis!), but these words describe the locked-down state of the judicial confirmation process at large. The White House has failed to set forth a sufficient number of nominees, and the Senate has failed to give many of the existing nominees a fair and expedient hearing and vote.

"After a period of relative ease in securing two U.S. Supreme Court appointments and several controversial judicial nominations after the Senate's 'Gang of 14' deal two years ago, the question remains whether the GOP will continue to make such gains in the federal judiciary during President George W. Bush's last 18 months in office.

'[Bush's] opportunity to fill vacancies is shrinking, and he probably will be unable to make the kinds of nominations that he made prior to 2006, says Michael Gerhardt, a law professor at the University of North Carolina."

A discouraging forecast. But a 'shrinking' opportunity is not yet the same as a lost opportunity; President Bush and the Senate should move quickly to ensure that the current situation does not degenerate from the former into the latter.

Last night's confirmation of the 'Michigan Three' - Janet Neff, Paul Maloney, and Robert Jonker - to three vacant seats in Michigan's Western District is an encouraging development. Curt Levey wrote in response: "Three Down, Two To Go." Two to go in Michigan - and many more vacancies in the 4th Circuit and beyond, too.

By the numbers

Al Kamen of the Washington Post had a brief piece on Friday that points to the slowly shrinking possibility that President Bush will be able to successfully fill the remaining judicial vacancies as he enters the final 18 months of his term. Kamen considers the lessons of history, examining the numbers of successful judicial nominations and confirmations in the waning months of previous Presidencies.

With the Senate Judiciary Committee in the hands of Democrats now invoking the so-called 'Thurmond rule' as justification for blocking any nominee who does not represent the elusive 'consensus', it would be difficult for President Bush to successfully fight even for a full complement of nominees. But the small number of nominees currently pending makes it even more clear that the time window is closing on Bush's efforts to leave a strong legacy in the judiciary.

Of course, as Kamen points out,

"It's hard to predict with certainty what the Democrats will do in the waning Bush months. For example, the Democratic- controlled Senate in 1988, the last year of Bush I's term, confirmed a generous 66 of his nominees.

That was essentially because then-Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) seemed to have this notion that the judiciary should be above crass political calculations. He was confirming Bush I's nominees almost on the eve of the presidential election."

It seems that times have changed.

4th Circuit: a very good place to start

Remember the 4th Circuit? This Court of Appeals faces a crisis as fully one third of its fifteen seats already or soon will need to be filled. This high number of empty seats poses a serious threat to the efficient and fair delivery of justice.

Finally it seems that we might have some baby steps in the right direction, as South Carolina's The State reports this week that

"Although Bush has made no formal announcement, he plans to nominate Steve A. Matthews, managing director of Haynsworth Sinkler Boyd — Columbia’s fourth-largest law firm — for Wilkins’ seat, several sources intimately familiar with the selection process told The State."

This is certainly welcome news for the 4th Circuit, but the work here is not done. Once Wilkins assumes senior status - and even assuming that Matthews gets successfully confirmed, in a timely fashion - there will still be four vacant seats in this Court. And as Wilkins himself points out (and he should know), "'Ten or 11 judges cannot do the work as fast as 15...We feel it’s important for litigants to have a decision and get on with their lives.'"

There are 17 listed 'judicial emergencies' and a total of 51 vacancies in the federal judiciary, with only 26 nominees pending as of today. One seat in the 4th Circuit Court of Appeals has been vacant since July 31st, 1994. The President and the Senate have their work cut out for them - and not only in the 4th Circuit - to prioritize the nomination and confirmation of qualified judges to all of our federal courts.

Adler on the 'Kennedy Court'

Over at NRO today, Jonathan Adler has a common-sense breakdown of the Supreme Court's 06-07 term.

He considers (and rejects) the myth of a "conservative legal revolution" in the Court; he outlines the importance of Justice Kennedy's vote in altering the course of the Court's decisions; and he incorporates many of the latest end-of-term statistics (regarding justice agreement, for example) so helpfully compiled by SCOTUSblog.

Read this piece for a refreshingly balanced and realistic evaluation of the Court's term.

The Roberts Court: a reality check

In an editorial today, the National Review takes on the daunting task of debunking some of the "hysterical" reactions from liberal critics of the Roberts Court's 2006-2007 term. (See E.J. Dionne and Linda Greenhouse, prime examples of this frenzied response to the Court's major decisions).

Here's the helpful 'reality check' offered by NRO's editors:

"None of the major liberal-activist precedents of the Warren or Burger Courts has been overruled in 30 years. The Supreme Court continues to insist that the First Amendment gives it the power to regulate school administrators’ disciplinary policies, even if it is easing up on those regulations. It continues to micromanage the circumstances in which states may employ the death penalty. Its church-state jurisprudence continues to have no consistent theme other than self-aggrandizement."

In sum:

"The Roberts Court's decisions lead to slightly more conservative policy results than those of its predecessors. Its opinions also try a little bit harder to announce principles that have the character of law, rather than keeping everyone guessing about what the Court’s next edict will be. The continuities are, however, more stark than the differences."

Read the whole thing for some important pointers to a few of the numerous factual inaccuracies that saturate most criticism of the Roberts Court.