Judges Showdown Looms as May 6 Deadline Approaches

The battle in the Senate over stalled judicial nominees moved closer to a climactic showdown Tuesday as Sens. Mitch McConnell and Arlen Specter made it clear that Democrats must include long-obstructed nominees Peter Keisler, Bob Conrad and Steve Matthews in the deal to confirm three appeals court nominees by Memorial Day. It is particularly important that the demand came from Minority Leader McConnell and Judiciary Ranking Member Specter, because McConnell negotiated the deal and because he and Specter are precisely the two senators who can make Democrats pay a price in the Judiciary Committee or on the Senate floor if the Democratic leadership attempts to gut the deal.

In a letter to their Democratic counterparts -Majority Leader Reid and Judiciary Chairman Leahy - McConnell and Specter decried Leahy’s avowed intention to renege on the deal unless it can be fulfilled by confirming his “preferred queue of nominees,” namely 4th Circuit nominee Steven Agee and 6th Circuit nominees Helene White and Ray Kethledge. Leahy prefers those nominees because they are already part of other bipartisan deals and, thus, would allow Democrats to superficially fulfill their commitment without compromising on the seven appeals court nominees they are obstructing.

Noting that the FBI reports and ABA ratings for White and Kethledge will be not be ready in time for pre-Memorial Day confirmations, McConnell and Specter said they were troubled by

“Chairman Leahy’s statements insinuat[ing] that, if the Committee cannot process Judge White and Mr. Kethledge prior to the recess, then the straightforward commitment made by the Majority Leader and, by reference, Chairman Leahy will not be honored.”

It follows, Sens. McConnell and Specter said,

“that, in order to fulfill the commitment, Chairman Leahy [should] turn to other outstanding circuit court nominees pending in Committee who have been ready for hearings and waiting far longer than Judge White or Mr. Kethledge.”

Specifically, McConnell and Specter called on Leahy “to schedule hearings for Judge Conrad and Mr. Matthews, and hold a Committee vote for Mr. Keisler as soon as possible,“ calling it “simply a matter of fairness to include in the commitment, nominees who clearly can be processed and who have been ready for hearings and pending the longest.” Keisler has been pending in Committee for nearly two years, while Conrad and Matthews have been waiting for more than nine and seven months respectively.

Specter and McConnell emphasized that Democrats have less than a week to avoid a breach of the Memorial Day deal:

“The clock is ticking. … If the Committee does not hold a hearing for two circuit court nominees [in addition to Agee] prior to May 6, 2008, it is exceedingly unlikely that the Senate will be able to confirm at least three circuit court nominees prior to May 23, 2008 [the last day before recess], given the standard amount of time it takes to move a nomination through the steps in the confirmation process.” (emphasis added)

This sets up a dramatic showdown as soon as next week, as we’ll know by May 6 if Leahy and Reid intend to break the deal. If the May 6 deadline is missed, there’s no reason for the Republican leadership to wait until Memorial Day to make Democrats pay a price.

We thank Sens. McConnell and Specter – as well as the other GOP members of the Judiciary Committee – for insisting that Peter Keisler, Bob Conrad and Steve Matthews be included in the Memorial Day deal. And we encourage you to thank them as well.

Right to Privacy v. the War on Drugs

Canada's Supreme Court ruled that drug-sniffing dogs could not be used randomly in public places because it would violate the average citizen's right to privacy. Read more in an article from the Toronto Star.

ABA: Get Out of the Diversity Business

An interesting article in The Wall Street Journal discusses the politics of college admissions. The author, Gail Heriot, highlights George Mason University's law school experience with the ABA's accreditation policies. Apparently, the ABA was disappointed by GMU's admissions standards for minorities because they were not significantly decreased to match the standards of most law schools. As a result, ABA refused to renew GMU's accreditation which is a problem for GMU because their federal funding relies on accreditation. In the article, Ms. Heriot argues that the Education Department should get ABA out of the diversity business.

The Latest in International Law

International law was recently tested in the U.S. Supreme Court case Medellin v. Texas, and was again decided yesterday in the 2nd Circuit Court of Appeals. A foreign national sued the State of New York for violating his rights under the Geneva Convention, and the court ruled against him. The New York Sun has more.

Letters from Leahy

Chairman of the Senate Judiciary Committee, Senator Patrick Leahy, might spend more time defending his role in stalling of President Bush's "controversial" judicial nominees than actually holding (or not holding) hearings.

The most recent proof can be found in his eight page letter to Republican Senators and another long one to the National Center for State Courts.

Compromises But Not Compromising

The latest judges deals finally pushing for something to happen with judicial nominees should relieve every American. However, Republicans should not have to compromise much more about which three nominees will be confirmed before Memorial Day, per the latest deal.

The Wall Street Journal talks a bit more about how the Democrats could try to get their own preferred nominees through in an article titled "Springtime for Judges."

Judges Deals & Discharge Petition

Tuesday was a big news day for the judges issue – perhaps the biggest since the confirmation of Justice Alito. Senate Leaders Reid and McConnell made a deal to confirm three appeals court nominees by Memorial Day; Sen. Levin and the White House reached an agreement to fill two long-standing vacancies on the 6th Circuit; and Sen. Specter asked Sens. Obama, Clinton, and McCain to declare their position on a possible motion to discharge three circuit nominees – Peter Keisler (DC Cir.), Bob Conrad (4th Cir.), and Steve Matthews (4th Cir.) – bottled up in the Judiciary Committee by Sen. Leahy.

Here’s our take on the day’s news, followed by excerpts from news reports. We believe Sen. Specter got it right – Keisler, Conrad, and Matthews are the nominees to focus on for a number of reasons. They were nominated to particularly important vacancies, have been pending in committee for a very long time, face no opposition from home state senators (the Leahy litmus test), and are being blocked for purely ideological reasons.

It follows that the devil is in the details of which nominees the Reid-McConnell deal will involve. We commend Sen. McConnell for using the highway funding bill as leverage to get a concession on judges from Reid, but we don’t yet know what to make of the deal. If “3 circuit confirmations by Memorial Day” turns out to include at least two of Keisler, Conrad, and Matthews, it’s a good deal. In contrast, Reid should not be allowed to claim credit for circuit court nominees whose selection or likely confirmation are already the result of deals with Democrats. Steven Agee (4th Cir.), Helene White (6th Cir.), and Ray Kethledge fall in that category.

Which brings us to the Michigan deal, involving two long-vacant Michigan seats on the 6th Circuit. Sen. Carl Levin agreed to stop blocking outstanding 6th Circuit nominee Ray Kethledge in return for the nomination of Levin cousin-of-law Helene White to the same court. That displaced another outstanding 6th Circuit nominee, Steve Murphy, who has now been nominated to the federal district court instead. Sen. Levin should be embarrassed that he has blocked 6th Circuit nominees for the last 7 years as “payback” for the breakdown of a deal to put White on the circuit a decade ago. But since Levin wasn’t going to get over his grudge anytime soon, the President was right to make the deal.

This morning, Republicans are going to the Senate floor to address Democrats’ obstruction of judicial nominees and yesterday’s deals. So there may be more news today.

Finally, we hope for a speedy recovery by Sen. Arlen Specter, one of the GOP’s leading voices on the judges issue.

News Excerpts:

"Specter wrote Sens. Barack Obama (D-Ill.), Hillary Rodham Clinton (D-N.Y.) and John McCain (R-Ariz.), seeking a direct response as to how they would vote on a motion to discharge three pending nominations from the committee. But Specter, rarely one to mince words, said he also wanted to “focus the public’s attention” on the impasse.” – The Hill, 04/15/08

“Dangling the popular highway funding bill as his hostage, Senate Minority Leader Mitch McConnell (R-Ky.) struck a deal Tuesday night with Majority Leader Harry Reid (D-Nev.) to dislodge a handful of President Bush's stalled appellate court nominees. Under the agreement, Reid and McConnell decided to advance at least three outstanding circuit court appointments before the Senate's Memorial Day recess, which begins May 23. … Reid said he couldn't make guarantees nor could he specify which judges would move forward, but he would do his best to follow through on the leaders' deal.” - Roll Call, 4/16/08 (emphasis added)

“The [Michigan] deal was reached by the White House and Democratic Sens. Carl Levin and Debbie Stabenow. … Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, called the agreement ‘a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends.’” – Associated Press, 4/15/08

"Petty Warfare" Not Over

One circuit judge confirmed, many to go. This L.A. Times article quotes Senator Arlen Specter as placing the blame on both parties. The delays are clearly unnecessary and the public outcry should not be quelled by the confirmation of this one circuit court judge. There are many judicial vacancies that need to be filled as soon as possible, and plenty of nominees awaiting their hearings, a problem that can and should be addressed.

Judges: Worst Record Since 1848

Seven GOP senators took to the Senate floor this morning to denounce the obstruction of judicial nominees by their Democratic colleagues and to put the Democrats on notice of the price they will pay if the obstruction continues. After “Republicans slammed Leahy at a committee meeting last week,” today’s “threat marked the next phase in the growing election-year battle over the judiciary, an issue that Republicans hope will energize conservatives eager to see more of Bush’s nominees confirmed to the bench,” reported The Hill today. Here are excerpts of the GOP senators’ remarks:

Sen. Arlen Specter:

“There is a growing movement in the Republican caucus to hold up legislation if we cannot move in any other way to get justice on the confirmation of these judges”

Sen. Sam Brownback:

“I think you're going to see people start to jam the body down and say that, unless we start approving some circuit court judges, business isn't going to happen around here. … It may come to a complete standstill if we don't start getting some judges. … The majority party can choose to go that route. … We are really going to have a big debate then across the country on that. Meanwhile, the whole nation just wants us to get the work done and we're not getting it done because judges aren't being approved.”

Sen. John Cornyn:

“This immediate need for judicial confirmations is especially true for the U.S. Court of Appeals for the Fourth Circuit. … The Fourth Circuit is currently operating without a third of its judges. The Washington Post observed that ‘the Senate should act in good faith to fill vacancies – not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers.’”

Sen. Orrin Hatch:

“The majority has stalled judicial confirmation votes longer this year than in any presidential election year since 1848. … The last time the Senate waited this long in a presidential election year to confirm federal judges, James Polk, the 11th President, was in the White House.”

“Since I was first elected, there have been seven Congresses like this one that included a presidential election year. During each of these presidential election Congresses, the Judiciary Committee held hearings for an average of 25 appeals court nominees. But today, more than fifteen months into the 110th Congress, the Judiciary Committee has held a hearing for only five appeals court nominees.”

“The current Judiciary Committee chairman in the past often insisted that 1992 provides the standard for judicial confirmation progress. Like today, his party controlled the Senate and a President Bush was in the White House. By this time that year, by April 10, 1992, the Senate had already confirmed 25 nominees to the federal bench. It does not look like the Senate will confirm 25 judicial nominees for the entire rest of the year.”

Sen. Mitch McConnell:

“The Judiciary Committee has held only one hearing on one circuit court nominee since last September. … It’s not as if the Committee has been otherwise occupied. This is another week in which the Committee could have held a hearing, for example, on the qualified nominees to the Fourth Circuit Court of Appeals, but it again chose not to do so. These nominees meet the Chairman’s own criteria for prompt consideration. Nevertheless, they have been inexplicably languishing in the Committee for hundreds of days without a hearing while the Fourth Circuit is one-third vacant.”

“We were told that having the support of home-state senators ‘means a great deal and points toward the kind of qualified consensus nominee that can be quickly confirmed.’ But it’s beginning to look like this criterion is being selectively applied: it’s readily used as a reason not to move a nominee – coincidentally, when the nominee is from a state with a Democratic Senator – but it’s ignored when the nominee has the support of two Republican Senators.”

Sen. Tom Coburn (including his written statement and remarks on the floor):

“The Chairman’s unwillingness to even hold hearings on numerous judicial nominees is a gross dereliction of duty. It is disappointing that the committee is putting election year partisan politics ahead of its constitutional duty to give ‘advice and consent’ to the president’s judicial nominees.”

“If Senators can find time to attend fundraisers, process thousands of earmark requests and be guests on talk shows they can find time to do the job they were elected to do, and are required to do under our Constitution.”

“I'm reminded of the fact that the majority had problems with four of President Bush's nominees starting in January [2007]. … In a gesture of good will, he withdrew four nominees that … although they were well-qualified, they weren't acceptable [to Democrats] … It's time for the Senate to make good on promises. It's time for it to reciprocate on what President Bush did in terms of withdrawing the four nominees.”

“Chairman Leahy’s treatment of Fourth Circuit nominee Robert Conrad, who has been pending for more than 250 days, is a case study in mindless partisanship and baseless obstruction. Last week, when I asked Chairman Leahy why this nominee has been delayed he accused Judge Conrad of making ‘anti-Catholic’ statements. Chairman Leahy’s stunning accusation against a nominee who happens to be Catholic underscores the urgency of giving Judge Conrad the courtesy of a prompt hearing and fair vote. … If Senator Leahy has concerns about Judge Conrad’s qualifications he should present those in the context of a confirmation hearing, where the nominee will have an opportunity to respond.”

Sen. Jon Kyl:

“The judicial conference says that many of these [vacancies] are judicial emergencies, meaning that we have vacancies in the circuit that need to be filled because there aren't enough judges to do the people's business. I mean, we should do it because we should do it; it's our responsibility. But even if you only look at it from a political standpoint, the reality is that if this tradition is broken of 15, 16, 17 judges in the last two years of an administration, then, clearly, we're going to devolve into a situation where, for political purposes, the party in power decides not to … even having votes on the nominees of the President. And that is a very, very bad thing."

“Peter Keisler, who has been pending the longest. He's been pending for almost two years. In fact he was nominated to the District of Columbia circuit court in June of 2006 and received a hearing in August of that year. He is widely regarded as well-qualified, fair-minded, and has received support from all over the political spectrum. … The American Bar Association has rated him unanimously well-qualified. You cannot get a higher rating than that. The Washington Post – no particular friend of this administration – editorialized in favor of Keisler describing him as a highly qualified nominee who certainly warrants confirmation.”

Another Good Article Speculating McCain's Judicial Picks

The Huffington Post printed an article yesterday afternoon again putting to rest the notion that McCain's so-called history of being a "maverick" will not translate to less conservative judicial appointments.

What is the hold-up for Keisler?

Ed Whelan, in his "Bench Memo" on the National Review Online wrote an article yesterday commenting on the numerous recommendations Keisler has received, including from Independents and Democrats. After quoting many of the complimentary letters, Whelan wonders, "Why are Pat Leahy and his fellow Democrats on the committee obstructing this nomination?"

Scalia Speaks to the Changes in the Confirmation Process

Supreme Court Justice Scalia says the process for confirming judicial nominees has changed and over at the Committee for Justice I'm sure everyone agrees. The Providence Journal has more on the Justice's speech to the students of Roger Williams University School of Law yesterday here.

Charlton Heston Democrats?

As you probably know, Academy Award-winning actor and Hollywood activist Charlton Heston passed away on Saturday. What you may not know is that for the majority of his life he probably considered himself something of a liberal, or at least a Democrat. Though his may be one of the first names one thinks of when trying to list known Hollywood conservatives, he spent the 1950's and '60's campaigning for and marching with the likes of Adlai Stevenson, John F. Kennedy and Martin Luther King. He was even asked to run for the U.S. Senate by the Democratic Party in 1969. In more recent years Heston was a defender of the National Endowment for the Arts.

So, when exactly was it then that Charlton Heston became a Republican? Was it during the Vietnam War? Or when his friend Ronald Reagan was elected? Perhaps after one too many Democrats voted for one too many gun control proposals? Nope. According to the New York Times:

“He became a Republican after Democrats in the Senate blocked the confirmation of Judge Robert Bork, a conservative, to the Supreme Court in 1987. Mr. Heston had supported the nomination and was critical of the Reagan White House for misreading the depth of the liberal opposition.”

There are still a lot of people on both sides of the aisle and in the press who don’t believe the judiciary is something that people care about, much less vote on. But the fact is that there are millions of people out there like the late Charlton Heston for whom this question is paramount. They vote on it because they are smart enough to realize that it is a subject that touches on at least one, if not many, of the issues they deeply care about from abortion to gun control; from property rights to how we fight terrorism. They realize that whatever may be accomplished through democratic action by conservatives and libertarians can be undermined or even reversed by an activist judiciary seeking to impose its own policy agenda on a people who have rejected their political views at the ballot box again and again.

The only way McCain and other Republicans can win this election cycle is to find those “Charlton Heston Democrats” out there and turn them into Republican voters in November.

Today’s Dramatic Showdown over Judges

This morning’s meeting of the Senate Judiciary Committee was dominated by a dramatic showdown over Chairman Patrick Leahy’s refusal to schedule hearings for most of the President’s U.S. Court of Appeals nominees. The showdown came on the heels of yesterday’s Wall Street Journal editorial describing Sen. Arlen Specter’s “plans ‘to close the Senate down’ … to prod Democrats to [move] President Bush's appeals-court nominees.”

This morning’s dust-up over judges raged for more than 30 minutes and clearly got under Sen. Leahy’s skin. The Chairman lurched from being defensive to trying to change the subject, but Specter, the ranking Republican, insisted that all 8 of the GOP senators present be allowed to address the obstruction of Bush’s judicial nominees.

One of the most memorable moments came when Sen. Tom Coburn pressed Leahy about when he would allow a hearing for Fourth Circuit nominee Judge Robert Conrad. Conrad meets Leahy’s requirement for home state senator support and is needed to fill a vacancy declared a judicial emergency. Leahy refused to answer Coburn, instead accusing Judge Conrad of making "anti-Catholic comments." Coburn responded that Leahy’s charges were all the more reason to schedule a hearing during which Conrad could be questioned.

The dramatic confrontation bore immediate fruit, as Fifth Circuit nominee Catharina Haynes was voted out of committee. Leahy had been expected to comply with People for the American Way’s demand, in a March 31 letter, that the Committee “not proceed” with her nomination.

Perhaps the most ominous words came from Sen. Sam Brownback when he said "I think we all know where this is headed" – an obvious reference to the bitter and prolonged Senate showdown and shutdown over judges that only Sen. Leahy can head off. Earlier in the week, Senate Republican Leader Mitch McConnell warned that “Republicans will be forced to consider other options” if the obstruction of judicial nominees continues.

Which brings us back to yesterday’s Wall Street Journal editorial, which described Sen. Specter’s plan for “a series of procedural stalls that would make it next to impossible for the Senate to get anything done.” The Journal noted the potential impact of the judges showdown on the presidential and Senate races:

“Mr. Specter's plan … has the advantage of getting the issue of judicial confirmations back in front of the public in an election year. It also offers Senator John McCain an opportunity to show some leadership on an issue popular both with conservatives and independents. … As for Barack Obama, this would be a chance to show his ‘post-partisan’ campaign riffs are more than rhetoric.”

The Journal also addressed the nomination of Peter Keisler, who has not been allowed a vote in the Judiciary Committee in the 20 months since his hearing:

“Among those waiting for a vote is Peter Keisler, Mr. Bush's highly regarded nominee for the D.C. Circuit Court of Appeals. … He is widely seen as Supreme Court material, presumably the reason Mr. Leahy hopes his nomination will go the way of Miguel Estrada, a legal star blocked by a Democratic filibuster in Mr. Bush's first term.”

The comparison to Miguel Estrada is an interesting one. Estrada was blocked not only because he is “Supreme Court material,” but also because he is Hispanic. Democrats fear the nomination of a conservative Hispanic to the Supreme Court, because blocking a Hispanic nominee would anger a core Democratic constituency. Is the fact that Keisler is Jewish similarly contributing to his obstruction by Democrats? There is no way to know. But it’s worth noting that, of the nine appeals court nominees currently being obstructed, three are Jewish.

Senate Judiciary Committee Under Fire Again

The Senate Judiciary Committee comes under fire again this week, yesterday it was by Senator Orrin Hatch and today, in an article in the Wall Street Journal. The article describes the current situation with the Senate Judiciary Committee and chairman Patrick Leahy’s role in holding up judicial nominees. The WSJ interviewed ranking member Arlen Specter and describes him as “spitting mad” about what Leahy is doing and discusses his intentions of following through with his prior threat to “shut down the Senate” until President Bush’s nominees get hearings.

Leahy, Clinton & Obama Lead Obstruction of Nominees

In Monday’s National Review Online – as well as in a floor speech today – Sen. Orrin Hatch took Senate Judiciary Chairman Pat Leahy to task for his hypocrisy on the issue of judicial nominations. Instances cited in the NRO piece include

“[Leahy] claims that he is not responsible when Bush nominees lacking support from their home-state senators do not get hearings. When he follows this policy, he blames it on senatorial courtesy. When Republicans follow this policy, he calls it a pocket filibuster.”

“Democrats also cite the so-called Thurmond Rule, supposedly to justify grinding the confirmation process to an early halt in this presidential-election year. (The Thurmond Rule is neither a rule nor attributable to the late Sen. Strom Thurmond.) ... As [Leahy] put it in July 2000: ‘We cannot afford to follow the Thurmond Rule and stop acting on these nominees now in anticipation of the presidential election in November.’”

“When Democrats were in the minority during President Clinton’s last year in office, they repeatedly insisted that 1992 provided the proper yardstick for measuring confirmation progress. [Leahy] said so in at least six different speeches between March and November of 2000. … Today, all Democrats have to do is meet their own standard. They are failing to do so.”

Sen. Hatch also made a telling personal comparison:

“I have voted against only five of the more than 1,500 nominees to life-tenured judicial positions that the full Senate has considered since I was first elected [in 1976]. Some Democratic senators … have voted against more than three times as many nominees of the current president alone.” (emphasis added)

Among the senators who have voted against more than three times as many nominees in just the last seven years, the worst offenders are presidential contender Hillary Clinton and Sen. Tom Harkin of Iowa (yes, both are worse than Sen. Kennedy). Clinton and Harkin have vetoed President Bush’s judicial nominees 19 times. And that doesn’t include the numerous times they voted to sustain the unprecedented filibusters of Bush’s judicial nominees – that is, to prevent the nominees from even getting an up-or-down vote by the full Senate.

Barack Obama trails Sen. Clinton in the obstruction game only because he wasn’t elected until November 2004. But once elected, Obama gave Clinton a run for her money, racking up eight vetoes of judicial nominees, compared to Clinton’s nine during the same period. Again, votes to sustain a filibuster are not included. But it’s worth noting that both Clinton and Obama joined John Kerry in his failed attempt to filibuster Supreme Court Justice Samuel Alito.

As part of his remarks on judicial nominations today, Sen. Hatch put a February 13, 2008 letter from a coalition of about 60 organizations in the record. The letter can be found here.