Keisler Praised by IG, Obstructed by Dems

Has Judiciary Chairman Patrick Leahy no shame when it comes to judicial nominees? We’ll find out in the coming months by watching whether he continues to deny a committee vote to D.C. Circuit nominee Peter Keisler, a former Assistant Attorney General at the Justice Department. Never mind that Keisler was nominated to the D.C. Circuit two years ago and testified to rave reviews at his Judiciary Committee hearing in August 2006. Sadly, we’ve become all too accustomed to such outrageous delays since Senate Democrats announced plans to block judicial nominees for purely ideological reasons back in 2001.

The real test for whether the shame center in Leahy’s brain is still functioning is whether Leahy continues to block Keisler now that the former Assistant Attorney General has been praised by the DOJ Inspector General’s report for standing up to the very politicization of the Department that Leahy has spent the last year denouncing. Stay tuned as we wait to see whether Sen. Leahy will sink to a new low. For now, here are some thoughts on Peter Keisler and the IG’s report from Sen. Jon Kyl at today’s Judiciary Committee meeting and Collin Levy in today’s edition of WSJ.com's Political Diary.

Senator Kyl (seconded by Sen. Specter):

“According to the [Inspector General’s] report I’m quoting, ‘a few DOJ political employees objected to the apparent use of political or ideological considerations in the hiring process, such as Assistant Attorney’s General Peter Keisler and Aileen O’Connor, and they should be credited for raising their concerns.’ I note this with some bit of irony because … one of the things that [Keisler] said in questioning this [hiring] practice and procedure was that … it must be motivated by politics … It seems to me that one could characterize opposition to Peter Keisler in the same way, and given the fact that his nomination has been pending now for almost 2 years, and there is still plenty of time to confirm his nomination, I would hope that my colleagues who have heretofore opposed that would reconsider in the light of the IG report”

Collin Levy, Political Diary:

“Democrats are happily trumpeting the recent report from the Justice Department's Inspector General over alleged political interference in hiring decisions by the Bush Administration. … In the report, Mr. Keisler comes across as a model of even-handedness. … In particular, Mr. Keisler defended the qualifications of a Harvard law school grad whose resume listed a job with Planned Parenthood. Mmmm, that doesn't sound like the right-wing zealotry that Senate Democrats claim to detect … Senate Democrats routinely criticize politicization of the Judiciary. In Mr. Keisler, though, they've spent two years punishing a man who actually fought politicization even when the spotlight was elsewhere.”

Obama Disagrees with The Supreme Court

No love for poor old Justice Anthony Kennedy. First, John McCain calls his him out for writing one of the worst opinions in American history, and now this:

Bloomberg: "The rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution,'' Obama said at a press conference in Chicago.

But wait ... Justice Kennedy says that capital punishment for the brutal rape of children does violate our Constitution. Is this the same Constitution we are talking about here .. the same Constitution Obama and Kennedy agreed on in Boumidiene two weeks ago? Maybe Obama needs to illuminate us about WHY he thinks this Supreme Court decision is the wrong way of interpreting our Constitution. Is it wrong because of Obama's own values or is it wrong because Obama believes Kennedy used a poor standard of interpreting what does and does not qualify as a constitutional violation? Many questions for the young Senator from Illinois. We look forward to the debates.

Obama, McCain, and Today’s Rape Decision

We won’t waste much time explaining why today’s 5-4 Supreme Court decision prohibiting the death penalty for rape – including the aggravated rape of an 8-year-old at issue in this case – is a classic example of judicial activism. Justice Kennedy’s resort to lofty but vacuous language in the majority opinion is enough to demonstrate that even Kennedy knew he was playing moralist and policy maker rather than objective interpreter of the Constitution. For example, in today’s aptly named Kennedy v. Louisiana, Justice Kennedy opined that “

“Evolving standards of decency must embrace and express respect for the dignity of the person … When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

John McCain immediately denounced the decision, but Sen. Obama has so far been quiet. Now, we express no opinion on whether allowing the death penalty for rape is good policy, but we have a very definite opinion on whether judges should serve as the nation’s self-appointed moral arbiters. Thus, we are, to say the least, concerned by Obama’s belief that difficult cases

“can only be determined on the basis of 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. … [I]n those difficult cases, the critical ingredient is supplied by what is in the judge's heart.”

If Sen. Obama’s conception of “empathy” for criminal defendants includes leniency for child rapists, then Americans will not be happy with the judges he appoints if elected president. On the other hand, if Obama believes that Justice Kennedy went too far today in following his heart rather then the text or original understanding of the Sixth amendment – banning “cruel and unusual punishments” – then today’s decision is the perfect opportunity for him to say so.

More generally, Sen. Obama complains that the Supreme Court has become too conservative and promises to appoint justices that share his heart-based judicial philosophy. That leads to an obvious question for the senator:

If a Court that grants habeas corpus rights to enemy combatants for the first time in history, and places more importance on elite opinion than the considered judgment of Louisianans about how to best protect their children, is too conservative, then what precisely do you hope a more liberal Supreme Court under President Obama would do?

Update (June 25): At a press conference late today, Sen. Obama commented on the Kennedy v. Louisiana decision in reaction to a reporter’s question:

“[I]f a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that that does not violate our constitution. Now, I think had the Supreme Court said we want to constrain the ability of the states to do this to make sure that it’s done in a careful and appropriate way, that would have been one thing. But it basically had a blanket prohibition and I disagreed with that decision.”

Obama & Affirmative Action Anniversary

Today marks the fifth anniversary of the Supreme Court’s 2003 landmark decision in Grutter v. Bollinger – involving race-based admissions at the University of Michigan – which held that the educational benefits of diversity can justify racial preferences in admissions, while also declaring that racial preferences should end within 25 years (by 2028).

We hope that journalists will take this opportunity to ask the presidential and Congressional candidates where they stand on the public and private use of racial preferences in education, employment, and contracting, and what they would do to facilitate the end of preferences by 2028. After all, it is the President and U.S. Senate that, by shaping the Supreme Court, will largely determine the future of affirmative action. And it is the President and Congress that, for example, mandate racial preferences in federal contracting, and could modify Title VI of the 1964 Civil Rights Act to make it even clearer to the courts that the “no” in "No person … shall … be subjected to discrimination” means no.

We’re particularly interested in hearing Barack Obama’s answers to the questions above, both because he has campaigned on transcending racial divisions and because he finds himself in the “Nixon goes to China” position of being the person best situated to end racial preferences. To his credit, Mr. Obama acknowledged in his Philadelphia speech that “anger exists within segments of the white community” over preferences for minorities, and that dismissing the anger “as misguided or even racist … widens the racial divide.” Now, it’s time for Obama to explain how he would address the “legitimate concerns” that he concedes are behind the white resentment.

Just as importantly, we would like to know what Mr. Obama’s preferred judicial philosophy means for the future federal court decisions that may well determine the fate of racial preferences. What we do know is that Obama has been unabashed about the type of judges he would appoint:

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

We would have preferred to hear Obama state that he would select judges who will objectively interpret the law. But that said, we wonder how his activist judicial philosophy would be applied to future affirmative action cases. Does understanding what it's like to be African-American imply that racial preferences should be upheld? Or does understanding what it's like to be poor mean that it’s wrong to give affluent minorities job and admissions preferences over poor whites? Alas, that is the problem with an activist judicial philosophy – it grants nearly absolute discretion to judges.

The current state of the law concerning race-based admissions is just one example of the legal morass that results when activist judges stray far from the text of the constitution and statutes they are supposed to be interpreting. Neither critics nor supporters of affirmative action can claim to understand the applicable legal standard in the wake of Grutter and its companion case Gratz v. Bollinger. It’s a standard that permits universities to seek a “critical mass” of minorities, but absolutely forbids quotas. It permits schools to use large racial preferences, but only if they’re disguised as part of a broad-based search for intellectual diversity.

That’s not to say that, objectively, the meaning of the Constitution’s Equal Protection Clause – the focus of Grutter – is crystal clear. One can make an argument, albeit an abandoned one, that the Clause is intended to protect only African Americans (see the legislative history of the 14th Amendment). On the other hand, one can easily argue that “equal” means equal with no ifs, ands, or buts. What one can’t plausibly argue – at least not without a lot of intellectual dishonesty – is that the Equal Protection Clause applies in full force to all racial minorities, somewhat less to Caucasians, and virtually not at all if it will negatively impact diversity in higher education. Nonetheless, that’s exactly what the Supreme Court has said, and we’re stuck with the resulting morass for the foreseeable future. Wouldn’t we all be better off if judges would stick to the law and leave policy making to legislators?

Judge Conrad and Leahy the Lapdog

Anyone attending yesterday’s press conference for Fourth Circuit nominee Bob Conrad – sponsored by Sen. Specter and attended by Sens. Dole, Burr, Hatch, and Sessions – must have walked away shaking their head over Senator Leahy’s refusal to give Judge Conrad a hearing. Not only is Conrad exceptionally qualified – he received the ABA’s highest rating and was overwhelmingly confirmed by the Senate when nominated to be a district court judge and a U.S. Attorney – but he also has clearly demonstrated the compassion that Democrats say they want in a judge. Witness one of the speakers at yesterday’s press conference, a former gang member who said Judge Conrad “could have given me a life sentence. Instead he came to meet my mother and father." Conrad helped the young man attend college and find a job.

So why is Sen. Leahy refusing to give Judge Conrad a hearing? Leahy has charged that Conrad is “anti-Catholic,” but that’s all the more reason to hold a hearing in which Conrad can be confronted with the charge. Perhaps Leahy fears that he will look foolish if forced to repeat the charge. After all, as Quin Hillyer pointed out in the American Spectator yesterday, the charge is preposterous:

"[T]he nominee himself is Catholic, and … the incident to which the chairman referred involved the nominee writing a letter to the editor defending a traditional Catholic priest from insults leveled at the priest by a progressive Catholic nun. How a defense of a Catholic priest can be characterized as being 'anti-Catholic' is beyond me."

To understand why Leahy is blocking this terrific nominee, one need only look to the collection of ultra-liberal organizations that call the shots on which Bush nominees Senate Democrats will block. Richard Burr, one of Judge Conrad’s home state senators, summarized the problem in an interview with Media General:

"Burr, in an interview, said he believed Leahy was acquiescing to groups like [People for the American Way]. ‘Clearly, these outside groups have told Sen. Leahy, don't do this,’ he said.”

Curt Levey, the Committee for Justice’s Executive Director, made the same point in more detail when addressing yesterday’s press conference. Here are his remarks:

“Others here have already eloquently described why Judge Conrad is a great nominee, so I won’t try to match their eloquence on that point. It suffices to say that if Bob wasn’t such a solid nominee, Senate Democrats wouldn’t be blocking him. They don’t fear the mediocre nominees.

“And groups on the Left – like People for the American Way (PFAW), the ACLU, and the Alliance for Justice – who favor judicial activism wouldn’t be campaigning against Judge Conrad if they weren’t certain that he’ll refuse to be an activist judge and will refuse to rule for the most politically correct party when the law requires otherwise.

“Don’t doubt for a second that it’s the groups on the Left who are behind the obstruction of Conrad and George Bush’s other judicial nominees. All you need do is look at the Democratic Judiciary Committee memos disclosed in November 2003 that made it quite clear that organizations like PFAW were calling the shots on which judicial nominees Democratic senators would obstruct.

“These organizations accuse Judge Conrad of being out of the mainstream, but let me remind you of what these groups consider mainstream. These are the same groups that argue that anti-polygamy laws are unconstitutional. These are the same organizations that are fighting to delete ‘under God’ from the Pledge of Allegiance and to strike down laws protecting children from Internet pornography. These same groups are campaigning to give drivers licenses to illegal aliens, while fighting against the deportation of aliens convicted of crimes and virtually every aspect of the War on Terror.

“No wonder these groups love judicial activism. Their agenda is far too unpopular to be enacted any other way, as we saw most recently with the gay marriage decision in California and the U.S. Supreme Court’s Gitmo decision.

“Those of us here today worry about the high vacancy rate and judicial emergencies on the Fourth Circuit. But, as John McCain said last month, for the people opposing Bob Conrad, the only judicial emergency is the possible confirmation of a judge who
doesn't meet their own narrow test of ideology.

“When nominees like Judge Conrad fail that test, the charge by opponents is always the same. The nominee is accused of being insensitive to women, minorities, and civil rights in general. In this case, Sen. Leahy also threw in the anti-Catholic charge.

“But if there’s any bigotry here, it’s on the part of Senate Democrats and their allies on the Left. I’m talking about their consistent bias against white male nominees from the South, like Judge Conrad. Except for the two instances in which a Democratic senator picked the nominee, every time President Bush nominated a southern white male to the appeals courts – 11 times in all -- Senate Democrats tried to obstruct the
nomination. And each time they’ve subjected the nominee to the same personal attacks that exploit the worst stereotypes about southerners.

“For a party that’s supposedly trying to win over Reagan Democrats and outherners, this blatant bigotry against southern white men doesn’t seem like a great strategy. But I guess we’ll see what the voters have to say about that.”

For a further discussion of the agendas of the groups opposing Judge Conrad, see here.

See also:
Sens. Burr and Dole on Judge Conrad.
Sen. Hatch on Judge Conrad.

338 Days and Still Waiting...

Senator Specter (PN) held a press conference this afternoon in support of Bob Conrad, Fourth Circuit Court of Appeals nominee who has been waiting nearly a year just to have a hearing on his nomination.

Joined by Conrad's home state senators Elizabeth Dole (NC) and Richard Burr (NC), as well as Orrin Hatch (UT) and Jeff Sessions (AL), who sit on the Senate Judiciary Committee, Specter recited Conrad's undeniably superb record, endorsements, and qualifications in calling for his expedient confirmation.

The American Bar Association has unanimously voted Conrad "Well Qualified" - their highest possible rating. Magnanimous letters of support have also been submitted from the President of his alma mater at Clemson University, North Carolina Bar Association, Chairman of the South Carolina Democratic Party, and President of the Catholic League for Religious and Civil Rights (the latter debunks claims that any anti-Catholic statements were ever made by Conrad, who is himself a devout Catholic, and shows such claims to be nothing more than political cheap shots at man with a spotless record).

Also in attendance were several people whose lives Conrad has personally touched. His former supervisor at the United States Attorney's Office stated that, "[Conrad's] mantra was the pursuit of excellence. He lived life as we hope most judges would." A second grade Massachusetts schoolteacher shared fond memories of how Coach Conrad inspired her and twenty other young women on her youth basketball team to develop strong character on and off the court. Most poignant was a gentleman who had been a member of a street gang in his teenage years. Conrad's love for basketball and his willingness to see potential in the troubled young man turned out to be an extraordinary blessing. "I came to Judge Conrad on his docket ... He could have given me a life sentence. Instead he came to meet my mother and father." Conrad helped the young main gain tuition assistance to attend college and even arranged several job opportunities for him. Today, he is an employed and eloquent family man who is involved with community outreach. "I want to thank [Bob Conrad] for taking that time."

It should be noted that Republicans and Democrats alike have praised Conrad's experience, fairness, and sound decision making. Former Clinton Administration Attorney General Janet Reno previously remarked, "I am impressed with his judgment ... and his knowledge of law. He is an excellent prosecutor." Senator Dole stressed that she has great admiration and respect for Judge Conrad and that "it is appalling that a person of his quality has not been given a fair hearing ... This is a judicial emergency seat [in the Fourth Circuit which counts four vacant benches and an extraordinarily burdened caseload] ... It is an incredible injustice to him."

“No individual should have their life on hold for 338 days like Bob Conrad,” said Sen. Richard Burr, R-N.C., at a press conference. “It’s time to lay politics aside and fill this very important vacancy.”

Senators Leahy (VT), Whitehouse (RI), and Feinstein (CA) have recently scolded the Senate Minority for undermining the integrity and character of their hearings with obstructive interruptions. Interesting to point out that these are among the same group of Senators who have thus far prevented a hearing for such an uncontroversial man of proven integrity and character as Bob Conrad.

Tit for Tat

That is the name of the game in today's U.S. Senate. Two Sixth-Circuit Court nominees - White and Kethledge - and one District Court nominee - Murphy - were advanced by the Senate Judiciary Committee last Thursday afternoon. But not until a few jabs were thrown.

TIT: Following opening remarks by Chairman Leahy (D-VT) and ranking member Specter (R-PA), the dialogue spiraled into an unbridled display of finger-pointing. Senator Durbin (D-IL) launched a storm of bickering about who is to blame for the recent stalling and gridlock. He began by denouncing the heightened use of filibusters. “75 filibusters this session alone (and with months to go) by the Minority has led to a breakdown.” After throwing the first punch, he regressed into a "why cant we all just get along and do our jobs" appeal that encouraged moving ahead through the use of amendments and holding more productive debates. Senators Whitehouse (D-RI) and Feinstein (D-CA) added that the recent objections and use of procedural mechanisms such as the two hour rule by Minority Leader Mitch McConnell (R-KY) and company are shamefully hurting the integrity and character of Senate hearings. "My hearing was stopped dead in its tracks. This just isn't right ... i want to appeal to the other side to cease and desist," said a very peeved Senator Feinstein. At one point, Chairman Leahy even threatened to hold "these hearings on Saturdays" if the obstructions continue.

TAT: Senator Kyl (R-AZ) responded, "there have been many shots fired and it is easy to pick one and blame the other side for starting all of this ... and it is easy for the Majority to talk about the objections and stalling of bills, but let's begin by talking about [stalled judicial] confirmations." Senator Sessions (R-AL) added that nominees Keisler and Conrad are unanimously well qualified and "have been waiting much longer [than White] ... we are not even close to the average 15 to 17 confirmations." Senator Hatch (R-UT) defended the use of the two hour rule and other objections as tools the Minority rightfully has at its disposal to employ them if it has to.

And so they sparred back and forth for over an hour, until Senator Biden (D-DE) offered to, in his own words, "Inject a bit of reality into all of this." This reality is that we are in a presidential election year and there is a good reason for a party who sees they could win the election to hold out on confirmations, he explained. "These are lifetime appointments. The president’s preference is young judges in their 40s with a streak of conservative records … The idea that the president is going to get every single one of his nominations … It's just not going to happen, it never happens … There are 98 other senators here [besides the Chairman and ranking member] ... the President should realize that and be more useful with who he nominates." So basically, a president should not hope for his judicial nominees to be confirmed in his final year in office. It therefore should not be a surprise to Senator Biden if Republican Senators were to by chance remember such justifications in a potential Obama administration four years from now. Is Senator Biden short sighted or is he right that this is just the way it is?

Within the final half hour of the meeting, they settled down to debate and vote on the three candidates, who all passed and now stand for confirmation on the Senate floor. The delay tactics are set to continue as there is still a long way to go for approving a reasonable number of judicial nominees. Surely, the Majority knows exactly why the Minority is employing frustrating procedural tactics by now and one has to wonder what all that bickering and finger pointing is worth. It begs the question: Why can't they skip the foreplay and get down to business, debate the nominees' records, vote, and go home early?

Reagan Democrats and Enemy Combatants

By now, you’ve likely heard plenty of analysis of whether yesterday’s Boumediene decision by the Supreme Court – striking down the heart of the Military Commissions Act of 2006 (MCA) and bestowing the right of habeas corpus on terror suspects held at Gitmo – was correctly reasoned. So take a break from that debate and consider a few related questions about judicial activism, the impact of Boumediene on the election, and the mystery of the missing conservative Supreme Court:

1) The Supreme Court showed little deference to Congress, which enacted the MCA by large majorities in both houses. So why aren’t liberal politicians, pundits, and law professors denouncing the decision as a case of judicial activism? After all, these are the same folks who have spent the last decade trying to redefine judicial activism by pointing to the Rehnquist / Roberts Court’s occasional lack of deference to legislative enactments, while eschewing the classic definition – that is, the elevation of a judge’s policy preferences above objective interpretation of statutory and constitutional law. The truth is that liberals’ newfound championing of judicial deference is short on sincerity. Instead, it’s a tactic based on discarding the honest but failed defense of the philosophy behind decades of liberal judicial activism in favor of a “so do you” argument. For more on this change in tactics, see here.

2) What happened to the “far right” Supreme Court that has been the subject of so much media attention and liberal hand-wringing of late? The truth is it never existed. While it’s certainly true that the Court has drifted right of the New York Times, the nation’s law faculty, and the typical elite cocktail party, the dirty little secret is that the Court is decidedly centrist when compared to the American people. The hysteria about the Court’s “right wing assault” on abortion, desegregation, and the separation of church and state has obscured the fact that large majorities of the public oppose partial-birth abortion and racial preferences and favor some role for religion in the public sphere. Had the Court ruled against enemy combatants yesterday, the decision would surely have been reported as further evidence of the Court’s “lurch to the right,” despite the fact that – outside the chattering classes – the American people express little support for expanding the rights of foreign terror suspects.

3) How will the Supreme Court issue play out in the upcoming election? In recent weeks, pundits have buzzed about how Democrats will use the prospect of several Supreme Court vacancies to scare Hillary Clinton’s supporters into the Obama camp. We’ll see how many women fall for the long-running “one vote away from back ally abortions” routine. But what’s clear is that recent events – particularly yesterday’s Boumediene decision and last month’s gay marriage edict from California’s highest court – have teed up the Supreme Court issue nicely for the GOP. Everyone seems to agree that the key to the presidential contest is winning the hearts and minds of Reagan Democrats. And there’s little doubt where that group stands on judicially-mandated gay marriage, expanded civil liberties for the guests at Gitmo, and the like. Given Obama’s pronouncements about the type of judges he would appoint, no exaggeration is necessary to raise the concerns of these swing voters about the prospects of an Obama-sculpted Supreme Court.

Judges Battle: Now, November and in ‘09

No sooner did the Senate return from its Memorial Day recess last week, than the battle over judges re-erupted. It made for an interesting week, so let’s recap then take a look ahead.

Tuesday, the Wall Street Journal decried Senate Democrats’ obstruction of judicial nominees as “unprecedented in its stinginess,” and noted that “[w]e'll soon see if Republicans will take this lying down.” The answer came the next day, when GOP Senate Leader Mitch McConnell forced Senate clerks to read aloud the entire 491-page substitute amendment to the climate change bill. Kudos to Sen. McConnell, who explained that the tactic was intended “to give [Democrats] time to contemplate and consider the importance of keeping your word in this body.”

McConnell was referring to Majority Leader Harry 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 by an opposition Senate in a president’s final two years. In fact, McConnell noted, judicial confirmations are proceeding at a historically slow pace:

"If you look at judicial confirmations in a presidential year, you have to go back to 1848, … Zachary Taylor, to find the last time the pace has been this slow."

Of course, what Senate Democrats have mind is 2009 rather than 1848, as Sen. John Cornyn explained last week:

"It is becoming increasingly clear that the majority party is … attempting to run out the clock in hopes of a Democratic President appointing hard left, judicial activists in 2009. We will not let this happen." (emphasis added)

But Democrats should not count their judicial activists before they’re confirmed. As noted by the Washington Times, Sen. McConnell “issued the starkest threat to date that Republicans will retaliate next year if a Democrat wins the White House.” Specifically, McConnell said

"It strikes me it's to their advantage to defuse this issue, because around here, what goes around comes around. That's happening today. It could happen next year. Surely, they're not so shortsighted as to think, 'Goodness, just a few months from now we could be processing nominees that we like.'"

Moreover, a fight over judges may be just what the GOP needs to avert an Obama presidency:

"[T]here are few better political fights for Republicans than over judicial nominations. A new Rasmussen study shows that the type of Supreme Court Justices a residential candidate would appoint outranks even the war as a priority among GOP voters." – Wall Street Journal, June 3

Some conservative leaders have said [the judges issue is] reason enough for them to overcome their misgivings and support presumptive Republican presidential nominee Sen. John McCain, who has promised to nominate conservative judges. - Washington Times, June 5

However, with the ideological balance of the all-important Fourth Circuit on the line, along with other critical vacancies, there are more immediate concerns than November’s election. Of greatest concern is confirming one or more of the Big Three nominees: Bob Conrad (4th Cir.), Steve Matthews (4th Cir.), and Peter Keisler (DC Cir.). The key will be whether GOP senators remain resolute, and so far the signs are good. When Wednesday’s slowdown produced only a little movement on Reid’s part – specifically, an agreement to hold confirmation votes for three district court nominees – Sen. McConnell continued to press Democrats by refusing to give consent for Senate committees to meet while the Senate was in session Thursday. McConnell promised to keep up the fight until Democrats back down from their obstruction of judicial nominees, saying

"Republican [senators] will continue to make the point that judicial nominations need to be treated fairly, and that commitments in this body need to be kept, and we will use the tools available to the minority to do so until that proves to be the case. This is not over I assure you."

Sen. McConnell can’t do it alone, but fortunately, his GOP colleagues are behind him:

One thing is clear: McConnell has the support of a majority of his caucus over the issue of nominees, according to numerous GOP aides. Republicans feel this is a strong campaign issue for them that always rouses the party base. – FoxNews.com, June 5

As McConnell noted, there is only one solution to the rising tensions over judicial confirmations: “Seven by the end of this year." Seven additional appeals court confirmations would yield a total of 15 in the 110th Congress, short of the 17 promised by Sen. Reid but equal to the number in President’s Clinton final two years.

As the Wall Street Journal explained, Republicans had hoped the ‘three by Memorial Day’ agreement with Reid would get us to at least 12 appeals court confirmations in the 110th:

"Republicans thought their deal with Mr. Reid was for two nominees in addition to the Michigan pair [who were part of another deal] – but with the Majority Leader, you have to read the fine print of any handshake."

As it turns out, Reid didn’t even abide by the deal’s bold type. Neither the Michigan pair – Helene White and Ray Kethledge – nor the other nominees Republicans had in mind –Conrad, Matthews, and Keisler – were confirmed by Memorial Day, so appeals court confirmations remain at eight.

McConnell Keeps His Promise

Despite the cynics who doubted there would be any real repercussion made in response to Harry Reid's broken promise to confirm three federal circuit judges by Memorial Day, Senate Minority Leader Mitch McConnell proved that he is a man of his word. Leading the chorus of Senate Republicans, McConnell stalled the Climate Change Bill on the Senate floor on Wednesday; objecting to Reid's motion to dispense with the reading of the 540-page Bill. McConnell continued to deliver this morning, bringing a successful vote to filibuster the Lieberman-Warner Climate Securities Act (S. 3036) by a vote of 48 to 36 (60 votes for cloture is necessary to limit debate).

Senator Specter reaffirms his commitment to bring a Senate vote on the pending confirmations.

Senator Cornyn vows to hold the Democratic majority accountable until there is a vote on the pending nominees.

Senator McConnell cautions Democrats that his procedural tactics will not cease until they make good on their promise to address the pressing issue of judicial confirmations.

Professor Jonathan Adler of Case Western University Law School, writes:

The Senate has confirmed President Bush's appellate judicial nominees at an amazingly slow rate ... While I do not expect Republican Senators to filibuster or otherwise obstruct a President Obama's nominees — and I will not support such efforts — such tactics appear increasingly likely. This is unfortunate. What we need at this point is not more nominations conflict, but a gradual de-politicization of the nomination process so that Presidents of either party can select the most qualified nominees who share their jurisprudential vision. I believe the Senate should have rapidly confirmed President Bush's nominees, and I hope (even if in vain) that the Senate will do the same for President Obama or McCain.

The unparalleled delaying of judicial confirmations is not only contributing to further politicization of the most non political branch of our government, but causing a breakdown of bipartisan cooperation which leads only to a waste of taxpayer dollars.

So Now It’s Down to Two

Though we don’t know who their running mates are going to be we do know that it’s going to be McCain vs. Obama.

I know that there are many conservatives and libertarians out there who have reservations about McCain. McCain and the GOP’s base have had their differences in the past. Conservatives and libertarians won’t always be happy with a McCain administration just as they haven’t always been happy with the Bush administration.

I know this not just because of what I read, but who I am and what I believe. I’m one of those on the Right who thinks that McCain is sometimes wrong.

But I also appreciate the reality of the situation. Currently, several federal appellate courts are narrowly balanced between judges who believe the judiciary should be “the least dangerous branch” of the government and those who think it should be the most active. Nowhere is this division more evident than on the U.S. Supreme Court where the outcome of cases often depend on which side the unpredictable Justice Kennedy joins.

With John Paul Stevens approaching 90 and 5 of the remaining 8 justices born sometime during the FDR administration, the next president will most likely have the chance to significantly restructure the Court. Who do you want that be? With all due respect to Bob Barr and Ralph Nader your choices are A) Barack Obama, and B) John McCain.

It’s time to make a choice.