July 28, 2008

Obama Court is Conservative Nightmare

“Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.”
So begins the cover story in this week’s National Journal, which analyzes what an Obama and McCain Supreme Court would look like. We focus here on the article’s observation that Barack Obama “exudes determination to move the [Supreme] Court sharply to the left.” That warning has been heard before, but the stature and nonpartisan reputation of the article’s author, former New York Times Supreme Court reporter Stuart Taylor, gives the warning added credibility. Taylor – who called the Bush Administration’s handling of enemy combatants “a global scandal” and accused the High Court’s conservative bloc of "colorblind Constitution absolutism” – is no conservative.

The virtual certainty of an increased post-election Democratic majority in the Senate means that Obama is “far more likely [than McCain] to get the Senate to confirm just about anyone he chose,” says Taylor. As a result,
“The door would be open for Obama, if he were so inclined, to appoint the kind of crusading liberal that the Court has not seen since Justices William Brennan and Thurgood Marshall retired in 1990 and 1991 – or, for that matter, to appoint Hillary Rodham Clinton if she wanted the job.”
Taylor notes that Obama might “disappoint” some of his most fervent supporters by appointing a “moderate-liberal consensus-builder” to the Court. But that possibility rings hollow when Taylor reminds us that Obama cited former Chief Justice Earl Warren, the father of liberal judicial activism, “as a model for the kind of justice he would pick.” If we take Obama at his word, a likely pick would be Second Circuit Judge Sonia Sotomayor, who Taylor lists among “the most-talked-about prospects” for an Obama Supreme Court. A bright but ultra-liberal Hispanic woman, Sotomayor would allow Obama to check three boxes with a single pick. The mere mention of her name brings fear to in-the-know conservatives.

Were Sotomayor to replace 88-year-old liberal Justice John Paul Stevens, the Court’s shift to the left would be muted. However,
“[A] Scalia or Kennedy retirement would enable Obama to move the Court dramatically to the left, creating a solid liberal majority for the first time since Chief Justice Earl Warren retired in 1969.”
That very real possibility should frighten conservatives all the more when they consider that
1) by the end of an 8-year Obama presidency, Justices Scalia and Kennedy would be 80 years old, an age most men never reach, and
2) given the damage the Supreme Court has done to the rule of law since 1969, imagine what the Court would do if it regained a “solid liberal majority.”

In fact, not much imagination is necessary, because Taylor lays out the possible agenda of an Obama Supreme Court. For easy reference, we have transformed Taylor’s “conservative nightmare” scenario into a Top Ten List (while retaining his wording).

Top Ten Things to Expect from an Obama Supreme Court:
#10 – expanding and perpetuating the use of racial preferences
#9 – creating new constitutional rights to physician-assisted suicide and human cloning
#8 – expanding judicial oversight of military detentions and CIA interrogations
#7 – prohibiting tuition vouchers for religious schools
#6 – banning the death penalty
#5 – requiring taxpayers to fund essentially unlimited abortion rights
#4 – creating new constitutional rights to massive government welfare and medical care programs
#3 – stripping "under God" from the Pledge of Allegiance
#2 – eroding property rights
#1 – ordering all 50 states to bless gay marriage

Of course, this “conservative nightmare” is a “liberal dream” for Obama's most enthusiastic supporters. It’s no wonder that the issue of judicial appointments looms large in this year’s race for the White House.

July 18, 2008

Huge Election Issue: Judges

The unprecedented growth of the Judiciary's hand in influencing social policy is apparently gaining quite a bit of public attention.

"A total of 87 percent say a President's power to appoint Supreme Court justices is 'very important' or 'somewhat important' in their vote this November," according to yesterday's Quinnipiac poll.

"Looking at the U.S. Supreme Court and social issues, American voters narrowly disapprove 43 - 39 percent of the job the Court is doing, the lowest rating in five years of Quinnipiac University surveys on the Court and the first time the Court has received a negative score. Voters say 42 - 33 percent that the Supreme Court is moving in the wrong direction. While 33 percent of voters say the Court is "about right," 25 percent say it is too liberal and 31 percent say it is too conservative."

Judges Boycott & Suggestions for Sen. Reid

Yesterday marked the one-year anniversary of Bob Conrad’s nomination to the Fourth Circuit Yet Judiciary Chairman Leahy has not allowed Conrad even a hearing. Those judicial nominees who have had hearings and await committee votes fared no better yesterday. Leahy did not include any of them on the agenda for yesterday’s Judiciary Committee meeting. In protest, the Republican members of the committee boycotted the meeting. They cited Democrats’ use of "fancy footwork … [and] every stalling tactic in the book” to block nominees, including “claiming that they are ‘too qualified’ and by citing a mythical ‘Thurmond rule’ that they previously admitted doesn’t exist.” (Sens. Grassley & Brownback respectively).

But the most remarkable development of the day was Majority Leader Reid’s claim on the Senate floor that he “can’t ever remember going home” and hearing concern about the “judges problem.” Apparently, Sen. Reid doesn’t get around much. But we have a few suggestions about who he should talk to if he wants to more accurately assess voters’ concern with the judges issue.

Reid should start with the citizens of the Fourth Circuit, who have been suffering with the substantial delays in justice caused by a vacancy rate of up to 33%, with some seats left vacant for the entire length of the Bush Administration. The 21 GOP Congressmen in the Fourth Circuit have had to plead with the Senate to take action because “excessive vacancies may be taking a serious toll on the administration of justice.”

Next, Sen. Reid should talk to pollsters like Rasmussen, who found that GOP voters rank the appointment of Supreme Court justices as a more important presidential election issue than the war in Iraq, as well as the American Bar Association, which found that Americans, by an almost 2-to-1 margin, believe judicial activism “seems to have reached a crisis” (4 ABA Journal eReport 40, 9/30/05).

Reid should also chat with his predecessor, former Majority Leader Tom Daschle, whose narrow 2004 loss is widely blamed on his obstruction of President Bush’s judicial nominees, an issue emphasized by his opponent. Or Reid could chat about the 2002 Senate races with Karl Rove, who said:
"There's no doubt in my mind that we won races all throughout the country [on the judges issue]. We won the Senate race in South Carolina – judges; won the North Carolina race – judges; won the Georgia race – judges."
If Reid is still not convinced that voters care about judges, he should visit political analyst and professor Larry Sabato at the University of Virginia. Sabato found that the judges issue "was one of Bush's best issues in the campaigns of 2000 and 2004" (Congress Daily PM, 7/18/06). If he prefers to look ahead, Sen. Reid can consult his colleague Sen. Obama, whose campaign signaled the importance of the judges issue by instructing surrogates to remind voters of the difference between the judges he and McCain would appoint.

Finally, Sen. Reid should ask Democrats on the Judiciary Committee why they support the Federal Judgeship Act, which would add 50 federal judgeships. The purpose of the Act, in Chairman Leahy’s words, is to “meet the needs of circuits and districts overwhelmed by growing caseloads.” (emphasis added). If Americans don’t care about the delays in justice caused by a shortage of sitting judges, then why are Reid’s colleagues planning to waste taxpayers’ money on new judgeships?

Sen. Reid’s remarkable claim that his constituents don’t care about the “judges problem” came as part of his excuse for denying Republicans the floor time they wanted to discuss the pending vote on two New York district court nominees. Instead, Reid rushed their confirmation through before a debate could take place. Which leaves us wondering what Reid is so afraid of hearing. Perhaps it’s the latest figures from the nonpartisan Congressional Research Service, which show that Democratic obstruction has caused unprecedented delays in the judicial confirmation process. Relative to President Clinton, Bush’s circuit court nominee have waited 46% longer if confirmed, and more than twice as long if not confirmed.

July 14, 2008

There is No "Thurmond Rule"

The oral testimony and written statement of expert witness Denis Steven Rutkus, a federal judiciary specialist for the Congressional Research Service (CRS), confirmed Senator Specter's suspicions today regarding the so-called "Thurmond Rule" at the Senate Republicans Committee hearing. (Transcript available here).

The phrase was coined after the late Senator Strom Thurmond for his role in supposedly encouraging presidential candidate Ronald Reagan and Senate Republicans to stall on President Carter's remaining judicial nominees in the election year of 1980. However, as the CRS report points out, the "The Judiciary Committee continued to hold hearings and report judicial nominations during August and September ... The Senate in turn, in September, confirmed 12 judicial nominations (11 district, one circuit)." So even the initial utilization of "Thurmond Rule" by Senate Republicans during the 1980 election is questionable at best. And looking at how many judicial nominees have been confirmed in election years ever since then, Mr. Rutkus comments that we have not seen its effective application until now. As reported in Jurist, "the average time for the Senate to take final action on a successful district court nominee has almost tripled [nomination chart]."

Chairman Leahy, spurred on by interest groups like People for the American Way, has increasingly relied upon the "Thurmond Rule" as if it is a legitimate procedural mechanism to stall votes on well qualified and noncontroversial nominees to vacant emergency benches. To the contrary, Rutkus summarized his nonpartisan research by concluding, "There is no written rule regarding the slowing down of judicial confirmations in an election year."

Other witnesses at the hearing included Professor John McGinnis of Northwestern Law School, Former U.S. Attorney Roscoe C. Howard, and Assistant Executive Director of the North Carolina Bar Association David Bohm. All expressed deep concerns that the the use of the "Thurmond Rule"' to slow down the confirmation process during election years is resulting in unnecessary costs and delays, forum shopping, and loss of faith in the judicial system.

Senator Cornyn suggested that it is time for the Senate to move beyond these partisan maneuvers and enter a new chapter of responsible judicial confirmations: "These nominees [i.e. P. Keisler, B. Conrad, S. Mathews, R. Rosenstien, etc.] have not had the chance to be heard. And some of them have suffered personal attacks with no chance of rebuttal ... The judicial nomination process is broken ... No one can remember how the feud began but we should bring an end to it. Now is the perfect time to fix this, as we do not know who will be the president next year."

C-SPAN Alert and NY Times v. Reality

C-SPAN3 has announced a live broadcast of today’s Senate Republican Conference forum on the judicial confirmation process. Beginning at 2:00 pm today, Sen. Arlen Specter and seven of his Senate colleagues will investigate the politicization of the confirmation process and the legitimacy of the “Thurmond Rule,” as they question witnesses from the Congressional Research Service, Northwestern University Law School, and the North Carolina Bar Association. Watch the forum in Russell Senate Building room 385 or on C-SPAN3.

Speaking of judges, former New York Times Supreme Court reporter Stuart Taylor provided the paper with a much-needed reality check in his column yesterday, after a Times editorial claimed that the Supreme Court was “teetering on the brink” of “far-right” disaster in its just-ended term.

As Taylor points out, several of the “far-right” decisions the Times found so disturbing this term were written or joined by the Court’s liberal Justices. Apparently only Justice Ginsburg escaped the conservative Kool-Aid:
"A new wrinkle in this summer’s assessments is that the conservative cabal appears to have co-opted liberal Justices Stephen Breyer, David Souter, and John Paul Stevens."

As we noted following the Court’s Boumediene (Guantanamo) decision last month,

“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.”

Taylor goes even further and provides specific poll results with lopsided majorities in concluding that

“[On] six of the most contentious subjects that come before the justices on a securring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center.”
“The point,” Taylor says, “is that it’s misleading to brand as ‘far-right’ and ‘radical’ positions that in fact are more liberal than, or near the center of, mainstream public opinion.”

But what about the Times’s argument that “the court is just one justice away from solidifying a far-right majority that would do great damage?” That, of course, assumes that there are already four dangerously conservative justices on the Court. However, as Taylor points out,

“Roberts and Alito are ‘far-right’ and ‘radical’ (as Times columnist Frank Rich has called them) only to people who are themselves more than a little bit to the left on he public opinion spectrum.”

In the last paragraph of the Times editorial, we learn that the paper’s hysterics about the just-ended Supreme Court term are intended as a warning to voters “when they go to the polls in November.” If the Times editorial board actually believes that focusing on the 2007-08 term will scare Americans into voting Democratic, they should review the poll results in Taylor’s column and ask themselves whether the Court’s decisions last month expanding the rights of child rapists and foreign terror suspects has made Reagan Democrats and other swing voters hungry for a more liberal Supreme Court.

Finally, although the Times makes itself an easy target, it is somewhat unfair to focus just on that paper. As Taylor notes, hallucinations about right-wing bogeymen running the Court extend to a “sizable slice of the journalistic-academic-cosmopolitan world typified by The New York Times’ editorial page.”