Reid Bows to Far Left as Rs Rank Judges Issue #1

This week brought two more reminders of the importance of the judges issue to GOP voters:

“When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq.” – Rasmussen Reports

“Item No.1 on the list of complaints from … conservative leaders is Mr. Bush’s failure to compel the Senate to vote on the federal judges he has nominated.” – Gerald Seib, Wall Street Journal

The Rasmussen survey also found that “by a 69% to 20% margin, voters [of all stripes] believe that judges should interpret the law as it is written,” and that only 11% of voters trust judges over voters or elected officials “to decide important decisions facing the country.” These findings help to explain why the judges issue has worked to Republicans’ advantage over the last decade. California Supreme Court, are you listening?

In truth, the responsibility for “compelling” Senate Democrats to allow up-or-down votes on the President’s judicial nominees lies primarily with GOP senators. And they undoubtedly have the Rasmussen survey results in the back of their minds as they consider their reaction to Majority Leader Reid’s broken promise to confirm three appeals court nominees before the Memorial Day recess, as well as Reid’s sure-to-be-broken earlier promises to meet the historical average (17) for appeals court confirmations in a president’s final two years. With just a couple of months left in the confirmation window, Reid is less than halfway to meeting that average.

The time for getting contested judicial nominees confirmed is running out, and GOP senators appear determined to make Reid pay a price for reneging on his word when the Senate reconvenes:

“I fear that the Majority Leader’s unwillingness to confirm judges will have negative consequences not only for our federal judiciary, but the Senate’s broader agenda.” – Sen. John Cornyn (5/22/08)

“A good GOP Senate source reports today that Minority Leader Mitch McConnell addressed the entire Republican Conference … about the judge-fight issue. McConnell is said to have been very insistent that he would not let Majority Leader Reid's broken promise go unpunished … He would not tell the Conference exactly what action he was planning, but he did say it would be very firm, and that all concerned would know it when we see it.” – Quin Hillyer (5/21/08)

Sen. McConnell also explained yesterday that Reid has failed to live up to the standard of commitment set by then-Majority Leader Trent Lott (R – Miss.), who made good on his promise to provide up-or-down confirmation votes for President Clinton’s controversial, ultra-liberal 9th Circuit nominees Richard Paez and Marsha Berzon:

“Lott committed to proceed to the Paez and Berzon nominations by March 15 [2000], which was, of course, a Presidential election year, just as this year is. … Given that many in our Conference and over 300 groups opposed these nominations, it would have been easier in many respects for Majority Leader Lott [to] have taken a hands-off approach, shrugged his shoulders, and put the onus on [Judiciary] Chairman Hatch to make good on the Majority Leader’s own commitment. … But Senator Lott understood that commitments in this body are not to be taken lightly, especially when they are made by the Majority Leader. So … Lott filed cloture on [the nominations]. … Judges Paez and Berzon were confirmed … Unfortunately, a similar commitment made to my Conference was not honored today.”

While Sen. Lott overcame numerous obstacles to get Paez and Berzon confirmed, Sen. Reid has looked for excuses to renege on his pledge. As evidence of having “tried” to meet his commitment, Reid points to Democrats’ failed attempt to rush liberal 6th Circuit nominee Helene White – nominated last month – through the Judiciary Committee and past nominees who have been waiting for up to two years and “could easily have been picked and confirmed” (quoting McConnell). The attempt failed because White’s ABA rating could not be completed in record time.

GOP senators are understandably angry that Sen. Reid broke the golden rule of senatorial honor by reneging on his commitment. But perhaps Reid should be pitied instead for being too weak to stand up to People for the American Way (PFAW), the Alliance for Justice, and the other groups on the Left who have their knives out for the three nominees who logically should have been confirmed before Memorial Day: Bob Conrad, Steve Matthews, and Peter Keisler. As Democratic Judiciary Committee memos disclosed in November 2003 showed, these groups often call the shots when it comes to which judicial nominees Democratic senators will block.

Groups on the Left have been demanding payback from Reid since he allowed the confirmation of 5th Circuit nominee Leslie Southwick last fall against their wishes, and have excoriated Senate Democrats for “caving” by confirming two – just two – appeals court nominees this year, both uncontroversial. One has to assume that Sen. Reid would have preferred to save face by keeping his Memorial Day pledge, but simply lacks the political muscle to say no to PFAW and company.

Despite the bitter battle over judges, the Memorial Day holiday is a good time to put this all in perspective by noting the battles with cancer of two of the Judiciary Committee’s lions, Senators Kennedy and Specter. Despite being in the middle of another round of chemotherapy, Sen. Specter continues to be an eloquent voice for the importance of getting judges confirmed. And, having locked horns with Sen. Kennedy over the judges issue on various occasions, we know what a tough fighter he is. Here’s hoping he can fight his cancer with the same resolve.

Gay Marriage Decision Should be Election Issue

Committee for Justice executive director Curt Levey commented on today’s decision by the California Supreme Court, which held that a popularly enacted state ban on gay marriage violates the California constitution.

“Today’s decision invalidating the gay marriage ban enacted by California voters is a quintessential example of judicial activism that should disturb all Americans, while reminding them of what’s at stake this November when they go to the polls to elect the politicians who appoint and confirm state and federal judges. The California decision also serves to remind Americans that the threat posed by judges who defy the constitutional limits on their authority is hardly limited to the federal courts. Indeed, as the U.S. Supreme Court has become less hospitable to the advocates of judicial activism, they have increasingly turned to state courts to enact the political agendas they have been unable to implement democratically.

“Today’s overreach by the California Supreme Court is classic judicial activism in that the court’s holding bears no resemblance to the constitutional text it purports to interpret. In the lofty but vacuous language typical of judicial activism, the court discovered a right to have one’s 'family relationship accorded dignity and respect equal to that accorded other officially recognized families.' Whatever one thinks of this new right – which would seemingly apply to polygamous families as well – it is nowhere to be found in the California Constitution.

“As is so often the case with judicial activism, today’s decision is a triumph for the ultra-liberal groups committed to using activist courts to achieve political agendas that are too far out of the mainstream to be enacted through democratic means such as legislation and ballot initiatives. In this case, not only were California’s liberal voters unwilling to enact the agenda of gay rights groups, but Californians explicitly voted to ban gay marriage by an overwhelming 61% margin in 2000. However, four Justices of the California Supreme Court think they know better. Talk about being elitist!

“This blatant act of judicial activism should disturb all Californians – indeed all Americans – regardless of whether they favor or oppose gay marriage as a matter of policy. After all, a court powerful enough to invent new constitutional rights is a court powerful enough to take away any constitutional right. Barack Obama ought to keep that in mind before he opines again that a judge should 'bring in his or her own perspectives, his ethics, his or her moral bearings.' At very least, he should explain to voters why his view is not a prescription for limitless judicial power.

“California voters might have an opportunity in November to re-enact the gay marriage ban as a constitutional amendment, effectively overriding today’s decision. But on the federal level and in many states, voters have but one recourse for fighting judicial activism and that’s electing presidents, governors, Congressmen, and state legislators – or in some states, judges themselves – who don’t believe that a judge’s 'moral bearings' should trump those of the people.

“Finally, keep in mind that my criticism of today’s decision is not based on policy arguments for or against gay marriage, nor on any notion that invalidating democratically enacted laws to protect legitimate constitutional rights is judicial activism. Instead, my criticism is based on the knowledge that the California constitution does not permit the state’s courts to invent new constitutional rights, no matter how wonderful the new rights might be.”

For a further discussion of how judicial activism is used to achieve unpopular political agendas, see here

McCain’s Speech on Judges

John McCain’s speech today on the judges issue was one of the best we’ve heard. It will reassure any conservatives who still have concerns about the type of judges McCain would nominate. McCain focused eloquently on the evils of judicial activism and the need for judicial restraint. But he covered many other important points as well, which we highlight below, along with our thoughts…

McCain clearly laid out the vast difference between his understanding of the proper role of the courts and the far more activist role favored by his potential Democratic opponents.

“My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power.”

“Senators Obama and Clinton … don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.”

“[A] justice of the court, as Senator Obama explained it – and I quote – should share ‘one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.’ These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them.”

McCain mentioned his involvement in the bipartisan Gang of 14 agreement and made it clear that, on the judges issue, he is the candidate with a proven record of bipartisanship.

“Senator Obama in particular likes to talk up his background … as someone who can work across the aisle to get things done. But when Judge Roberts was nominated,… [h]e went right along with the partisan crowd.”

With several Supreme Court vacancies looming, the judges issue is certain to be a big one in the upcoming presidential and Senate elections. If the 2002 and 2004 elections are any indication, it will be a winning issue for Republicans, because a solid majority of Americans oppose judicial activism generally and the specific activist Supreme Court decisions cited by McCain today.

“Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election.”

McCain explained the inherently anti-democratic nature of judicial activism, which explains its appeal to the liberal intellectual elite. The large numbers of “bitter” Americans who embrace religion, guns, and the like makes it impossible for the liberal elite to enact their policy agenda democratically. Instead, they depend on the courts to enact their agenda and that’s why they are so fierce in demanding that Democratic senators apply an ideological litmus test.

“Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige.”

“[B]y Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.”

Republicans, on the other hand, have never believed in applying an ideological litmus test to judicial nominees.

“[W]hen President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.”

McCain called out Senate Democrats on the real motive behind their personal attacks on the President Bush’s judicial nominees.

“We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered … We have seen disagreements redefined as disqualifications … Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution.”

McCain also called out Senate Democrats on their excuses for not holding hearings for judicial nominees.

“As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations -- to meeting a basic Senate duty under our Constitution. … But when a judicial nominee arrives to the Senate … then he or she had better settle in, because the Senate majority has other business and other priorities.”

McCain pointed out that Senate Democrats are putting ideology above the needs of the people living in 4th Circuit states, who face diminished access to justice due to the vacancy crisis on that circuit.

“[A]t this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a 'judicial emergency' has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.”

The increasingly partisan and contentious nature of judicial confirmations is a direct result of the judicial activism that has turned the federal courts into ideological battlegrounds.

“The sum effect of these capricious rulings has been … to turn Senate confirmation hearings into a gauntlet of abuse.”

“The surest way to restore fairness to the confirmation process is to restore humility to the federal courts.”

McCain promised that, under his presidency, there will no more Souters or other disasters resulting from the temptation to pick stealth nominees.

“[I]n the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough. I will not seek the confidence of the American people in my nominees until my own confidence is complete – until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution. I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.”

Given that property rights have become unfashionable in recent decades, we’re happy to see that McCain has not lost sight of their importance.

“There is hardly a clearer principle in all the Constitution than the right of private property.”

Leahy Disregards People of VA, MD, NC, SC & WV

A battle over judicial nominees is raging in the Senate, but yesterday the focus was on the House. All 21 GOP House members from Fourth Circuit states sent a letter to Senate Judiciary Chairman Pat Leahy decrying his committee’s “inexcusable” obstruction of 4th Circuit nominees, which is “negatively affect[ing] the lives of the people of Virginia, Maryland, West Virginia, North Carolina, and South Carolina.” The obstruction, the Congressmen explain, “has permitted the vacancy rate in the Fourth Circuit to reach an unacceptable 33 percent,” which

“hurt[s] average people hoping for courts to resolve their disputes, small businesses trying to get by in our uncertain economy, and crime victims seeking justice. … [T]hey see their cases delayed because there are not enough judges to handle the caseload on the Fourth Circuit.”

The Washington Post made a similar point last December when it editorialized 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.”

The Congressmen’s letter notes that three of the five 4th Circuit vacancies have already been declared “judicial emergencies,” and two of the vacancies – North Carolina and Maryland seats that have been unfilled since the beginning of the Bush presidency – are the first and third longest running vacancies in the nation. Yet Sen. Leahy refuses to even hold hearings for the Maryland and North Carolina nominees, Rod Rosenstein and U.S District Court Judge Robert Conrad. Ditto for South Carolina nominee Steve Matthews.

The Congressmen add that the “Senate’s inaction on Fourth Circuit nominations is particularly egregious given the exceptional individuals President Bush has nominated.” They note that one of the nominees, Judge Conrad, was confirmed by a voice vote in the Senate just three years ago.

The 4th Circuit Congressmen conclude:

“At a time when excessive vacancies may be taking a serious toll on the administration of justice in the Fourth Circuit, … [t]he Senate should fulfill its constitutional role and promptly give all four nominees a hearing and a fair up-or-down vote.”

They note that the Washington Post has said the same, repeatedly calling on the Senate to “expeditiously process the nominees to the U.S. Court of Appeals for the 4th Circuit.”

It’s no secret why Senate Democrats are playing politics with the Fourth Circuit. They want to leave the vacancies unfilled in the hopes that a Democratic president can fill them. But history indicates that, even under the rosiest scenario, the first of the next president’s Fourth Circuit nominees would be confirmed no earlier than the last few months of 2009. In other words, if Senate Democrats continue to put politics above the administration of justice in the 4th Circuit, the residents of Maryland, Virginia, West Virginia, North Carolina and South Carolina will go at least another 18 months without an adequately staffed appeals court. As the Congressmen’s letter to Leahy says, “[t]he people served by the Fourth Circuit deserve better.”

A copy of the letter is available on request.