Ben Adler Channels Dahlia Lithwick

Ben Adler on the GOP's Pledge in Newsweek.

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.

Ramesh Ponnuru correctly calls this line of thinking insane.

There’s nothing — nothing in the Constitution, nothing in Marbury v. Madison, nothing even in Cooper v. Aaron — that suggests that congressmen cannot consider the constitutionality of laws while voting on them. That they can do so, which one would have hoped would be a banal idea, does not even challenge judicial supremacy: The courts can still be the final arbiter of constitutionality. The Pledge provision in question is “extraconstitutional” only in the trivial sense that the Constitution neither requires nor forbids it.

Lithwick's equally dumb version of this train of thought here.

Estrada for DC Circuit; Today’s Radical Nominees

CFJ Executive Director Curt Levey on Miguel Estrada and the five radical nominees on today’s Judiciary Committee agenda:

Democrats have done a lot of complaining in recent weeks about the supposedly slow pace of judicial confirmations. As today’s Senate Judiciary Committee meeting vividly illustrates, President Obama has contributed to the slow pace by selecting a number of nominees whose views and records are far outside the American mainstream.

On today’s Judiciary agenda were five of Obama’s most controversial judicial nominees: Goodwin Liu (9th Circuit), Robert Chatigny (2nd Circuit), Louis Butler (W. District of WI), Edward Chen (N. District of CA), and Jack McConnell (District of RI). Four of the five were voted out of committee on party line votes, while a vote on Chatigny was postponed due to the loss of a quorum. The Committee for Justice has explicated the five nominees’ troubling records in previous e-mails, but for an excellent summary of all five nominees in one place see the recent release by Judiciary Committee Republicans.

Radical nominees are not the only reason why Democrats’ blaming of Senate Republicans for the slow pace of confirmations is misplaced. As CFJ noted last week, “those unhappy with the Obama confirmation rates should be pointing their fingers . . . at President Obama and the Democratic Senate leadership for making judicial nominations a low priority.” Moreover, as Judiciary Ranking Member Jeff Sessions pointed out on the Senate floor yesterday,

“Allegations of ‘unprecedented’ obstruction and delay have been bandied about by some of our colleagues and their allies in the press. But the reality is, Democrats’ systematic obstruction of judicial nominees during the Bush Administration was unprecedented then and it is unmatched now.”

Sen. Sessions went on to painstakingly detail Democratic obstruction nominee by nominee, discussing more than a dozen of Bush’s blocked circuit court nominees and noting that

“Perhaps the most disturbing story was that of [DC Circuit nominee] Miguel Estrada … He waited sixteen months just for a hearing … After almost two-and-a-half years in limbo and a protracted six-month-long filibuster battle, Mr. Estrada withdrew his name … To this day, I remain baffled as to why such a fine nominee was treated so poorly, his character assassinated, and his nomination ultimately blocked for no reason.”

What Sessions didn’t mention were the Democratic Judiciary Committee memos which revealed that the party’s opposition to Estrada was based on concern that he would eventually become the first Hispanic Supreme Court Justice. Understandably, obstruction of Estrada remains the deepest wound from the nomination battles of the Bush years. As Roll Call pointed out yesterday,

“Estrada’s failed nomination is a frequent GOP talking point when discussing the highly political confirmation process, and Sessions charged the Democrats’ work to kill his nomination and others during President George W. Bush’s tenure is the cause for so many lower court vacancies nationwide.”

Despite the high profile and importance of the circuit to which Estrada was nominated, President Obama has not tried to fill its two vacancies. Presumably, the White House has been unable to find acceptable DC Circuit nominees that it believes can win confirmation.

The good news is that the President has an opportunity to solve the DC Circuit problem with a dramatic gesture that would also go a long way to heal the Bush-era wounds that have left the judicial confirmation process highly politicized and the GOP in no mood to make confirmation easy for Obama’s nominees. The dramatic gesture we have in mind is the nomination of Miguel Estrada to one of the vacant DC Circuit seats.

By nominating Estrada, the President would ensure quick confirmation of an extraordinarily qualified nominee to fill what is arguably the most important judicial vacancy in the nation. Even more importantly, Obama would be sending a powerful, highly visible signal of bipartisanship that Senate Republicans would be unable to ignore either politically or personally.

If it sounds like a crazy idea, consider that George W. Bush did the same thing – three times in fact – to encourage bipartisanship. Among President Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton appointee to a lower court, and Roger Gregory, an unconfirmed Clinton nominee. Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth Circuit in 2008. All three nominees were quickly confirmed.

Skeptics on the right will undoubtedly say that Obama is too rigidly ideological to nominate a conservative to the circuit courts. Skeptics on the left will say that Obama would be foolish to do so. But consider what the President would gain. Though Obama would be “giving up” a circuit court seat, the resulting good will and political pressure for reciprocal gestures would virtually guarantee easier confirmation for at least several of his judicial nominees.

Even putting judges aside, Obama would gain politically by replacing his talk about bipartisanship with highly visible and indisputable evidence of bipartisanship. Finally, keep in mind that the Democrats’ original reason for blocking Estrada – fear that he would become the first Hispanic Supreme Court Justice – is gone now that Sonia Sotomayor is on the Court.

CFJ doesn’t speak for Mr. Estrada, but the conventional wisdom is that he has no desire to subject himself to a repeat of the character assassination that accompanied his original nomination. But he need not worry. With bipartisan support, the confirmation process would be more like a love fest this time around, especially in the wake of Estrada’s letter endorsing Elena Kagan’s Supreme Court nomination and Kagan’s glowing testimony about Estrada during her confirmation hearings this summer. Kagan testified that Estrada “is a great lawyer and a great human being” and is “qualified to sit as an appellate judge [and] as a Supreme Court Justice.”

At this summer’s hearings, Kagan seemed genuinely embarrassed that she had not spoken out in support of Estrada – her friend since they attend Harvard Law School together – when he was nominated by President Bush. We’re guessing that Justice Kagan is one Democrat who would be thrilled to see Estrada renominated and confirmed to the DC Circuit.

Dahlia Lithwick: Congress Shouldn't Consider the Constitutionality of Legislation

The left's premiere legal commentator drops a doozy today in her article on Christine O'Donnel at Slate.

O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional?

David Bernstein picks this apart at Volokh.

Short answer: Senators swear an oath to uphold the Constitution. Of course they are obligated to determine whether a bill they are considering is constitutional. Where did Lithwick get the idea that courts, and only courts, should be concerned with the constitutionality of legislation?

Somewhat longer answer: The Constitution doesn’t vest the authority to determine the constitutionality of legislation in any single branch of the government. In fact, not only does the Constitution not grant the judiciary the exclusive power to consider the constitutionality of legislation, it doesn’t speak of judicial review at all. I think that judicial review is implicit in the Constitution, for the reasons stated by Chief Justice Marshall in Marbury v. Madison. But there is no contradiction between allowing the Court to exercise its authority in its own sphere (i.e., when a lawsuit comes before the Court) while the other branches determine the constitutionality of legislation in their own spheres. At least since the late 1950s (Cooper v. Aaron), the Supreme Court has asserted that if an elected official defies a Supreme Court precedent, that official is violating his oath to uphold the Constitution. But even if we accept that it would be a dereliction of a Senator’s duty to vote for a law that he knew the Court would deem unconstitutional, I don’t know of any reason why a Senator should vote for a law that he deems unconstitutional, even if the Supreme Court would uphold such a law; no defiance is involved in such an instance, just an independent assessment of constitutionality. Regardless, it’s hardly the case, as Lithwick suggests, that a Senator should ignore constitutional issues, vote completely based on policy preference, and wait for the courts to sort things out.

Apparently still not thinking Lithwick follows up that bit of genius with the following.

In 2003, O'Donnell said of the Supreme Court that "it's kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system." So I do wonder a little whether she's claiming that her view of what's constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

I truly hope that Lithwick is smart enough to realize that having Congress also contemplate the constitutionality of legislation is a check and balance, on the Court.

Richard Cohen Paraphrases Justice Breyer

Cohen paraphrases Breyer in today's WaPo.

The Constitution is a wonderful document, quite miraculous actually, but only because it has been wisely adapted to changing times. To adhere to the very word of its every clause hardly is respectful to the Founding Fathers. They were revolutionaries who embraced change. That's how we got here.

Hey, when you have "unwavering values" who needs actual words.

More Breyer In The News

From a WaPo feature:

Breyer's new book, "Making Our Democracy Work," underlines their disagreement in a chapter called "The Basic Approach."

"The court should reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing," Breyer writes. "Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."

I have no idea what Justice Breyer considers to be the Constitution's "unwavering values" are, but they don't include political speech (Citizens United) or armed self-defense (McDonald), just to name a few recent examples. On the bright side, he realizes his own shortcomings.

Breyer, 72, said in an interview that he understands how that opens him to criticism of subjectivity, and that his approach lacks the simple message of originalism.

Breyer sells originalism short when he only cites its "simple message," but that is a post for another day. Besides, there are whole books dedicated to defending originalism. So how does Justice Breyer suggest going about interpteting the Constitution's "unwavering values"?

Judges should go about this, Breyer says, using "traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects."

Purposes and consequences? What does that even mean? How'd that work out for the ADA? How about the consequences of upholding much of the New Deal? That doesn't even get into looking at the stupidity of trying to figure out the law's purpose, which the Court, in the case of economic liberty, has said doesn't even matter. Breyer is right when he says that, "he understands how that opens him to criticism of subjectivity." The problem is that he answers that criticism by listing a bunch of subjective criteria to guide his decisions. I hope he continues his book tour. The public is getting a good look at the left's most prominent jurist. I have a feeling they won't like what they hear.

Justice Breyer in the News

Justice Breyer:

1. is not so sure the Constitution protects Koran burning.

2. believes Adams helped write the Constitution.

I'll leave it to others to connect the two stories...

UPDATE: Justice Breyer has apparently walked back his previous comments on Koran burning during an appearance on Larry King's show. Ann Althouse adds:

What scares me is the thought that, if Justice Breyer had heard cheers at the hint that he might protect the feelings of Muslims over the free speech of Rev. Jones, he would have gone the other way.

GOP Stalling Judges??

CFJ Executive Director Curt Levey on the pace of judicial confirmations:

Speaking about judicial nominations yesterday, Senate Judiciary Chairman Pat Leahy complained that “In my 36 years here in the Senate, I’ve never seen anything to match the delays we’ve seen in the last year and a half.” Leahy shouldn’t believe everything he reads in the papers.

During the past two weeks, various newspaper articles have left one with the impression that Senate Republicans have been master obstructionists when it comes to President Obama’s judicial nominees. Last week, the Associated Press claimed that a “determined Republican stall campaign in the Senate has sidetracked so many of [Obama’s judicial nominees] that he has put fewer people on the bench than any president since Richard Nixon.” Yesterday, Roll Call reported that only “42 of Obama’s 89 judicial picks … have been confirmed, setting a pace Democrats describe as painfully slow.” And a Los Angeles Times article had a similar theme two weeks ago.

The impression given is very misleading. In fact, the confirmation rate for Obama’s judicial nominees is similar to that for George W. Bush’s nominees, as various commentators have aptly explained (see here, here, here and here). Moreover, those unhappy with the Obama confirmation rates should be pointing their fingers not at the GOP – which is virtually powerless to stop a concerted Democratic effort to confirm nominees – but at President Obama and the Democratic Senate leadership for making judicial nominations a low priority. The Washington Post conceded in an editorial last week that “Responsibility starts with the president. Judicial nominations have not been high on Mr. Obama's to-do list.”

Nonetheless, the President blames Republicans and conjures up imagined filibusters. Last Friday, Obama claimed:

“We’ve got judges who are pending. We’ve got people who are waiting to help us on critical issues like homeland security. And it’s very hard when you’ve got a determined minority in the Senate that insists on a 60-vote filibuster on every single person that we’re trying to confirm.”

The truth is that not a single Obama judicial nominee has been blocked or even meaningfully delayed by a filibuster (last fall, there was a symbolic filibuster attempt against 7th Circuit nominee David Hamilton despite no chance of success). That stands in sharp contrast to the Bush years, during which Senate Democrats broke with two centuries of history by repeatedly using the filibuster to defeat or indefinitely delay judicial nominees with majority support. At least ten of Bush’s appeals court nominees met this fate during the 108th Congress.

Payback hasn’t been an option for Republicans because for much of Obama’s presidency, Senate Republicans lacked even the 41 votes necessary to contemplate a filibuster. And even now, with just 41 GOP votes in the Senate, no nominee short of Attila the Hun could be filibustered with Republican votes alone, given that several GOP senators are opposed to the filibustering of judicial nominees.

With statistics flying back and forth, one simple but important point is often lost: Given the numbers in the Senate since Obama took office, Senate Democrats have had the ability to confirm any nominee with majority support simply by making it a high enough priority to spend floor time on debate. The Los Angeles Times explains:

"‘Republicans can't stop Reid from bringing things to a vote, but what they can do is make the majority leader pick his priorities,’ [Curt] Levey said. He was referring to the option of invoking cloture, which allows the majority to call a vote but at the price of ceding the Senate floor for a maximum of 30 hours of debate, at the expense of other legislation sought by the administration."

Faced with the facts, Senate Democrats are forced to concede that they haven’t made judicial nominations a priority and have no plans to do so. Some months ago, Judiciary Committee member Sheldon Whitehouse “said moving nominees just hasn't been a priority and there's no indication when that will change” (quoting National Law Journal). Now, even with Democrats facing their last chance to use a considerable Senate majority to confirm judges, Roll Call reports that “adding nominations to the list of [fall Senate] priorities is unlikely, sources say.”