Let the People Choose Their Judges

Former Michigan Supreme Court Chief Justice Clifford Taylor explains in a video interview why electing judges is a much better method of judicial selection than so-called “merit selection” panels, which virtually ensure the appointment of liberal judges. In a 2008 election, Taylor lost his seat on the Michigan Supreme Court as the result of dirty campaign tactics by his opponent. So his endorsement of judicial elections has tremendous credibility. Says Taylor,

“Elections may have some warts but they’re beauty queens compared to merit selection.”

Who’s to Blame for Judicial Vacancies?

On last night’s PBS NewsHour, Committee for Justice executive director Curt Levey discussed the politics of confirming President Obama's judicial nominees with Caroline Fredrickson, executive director of the American Constitution Society. Judy Woodruff hosted the discussion.

A transcript of the interview and streaming video are available on the NewsHour web site, and audio of the interview can be downloaded. Here are some excerpts:

CURT LEVEY: Caroline accurately pointed out that there are 20 pending [nominees] who have gotten out of committee. But that's only 20 out of 91 vacancies. And all but one of those 20 are just a matter of weeks or, at most, a couple of months, which is a very short time historically. I mean, there are many of Bush's nominees who waited literally years after they got out of committee. There were some nominees who were waiting throughout most of the eight years. So the fact that there's only one out of the 20 who's even been waiting three months I think tells you that things are going fast.
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CURT LEVEY: I don't think [the judicial vacancy rate] has much to do with anything the Republicans are doing. It has to do with a very slow nomination pace by the Obama administration. Obama is not making confirmations a priority, nor is Sen. Reid, the majority leader. Also, there's just been, let's face it, a general breakdown in courtesy in the Senate. And so all issues get affected, including judges. And there were also two Supreme Court vacancies in Obama's first two years, which, for about six months [bring other confirmations to a halt].
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CAROLINE FREDRICKSON: Thirty-seven of those vacancies represent judicial emergencies. And that is a term that's been defined by the Administrative Office of the Courts to represent an extremely high caseload. And what that means, what that translates into for ordinary Americans is an extremely long wait before their vital case can get heard.
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CURT LEVEY: I do agree that judicial emergencies should be given priority. But, again, let's remember that judicial emergency is not just defined by caseload. It's also defined by how long the vacancy has existed. And, again, that vacancy may have existed for a long time because Obama was very slow to appoint a nominee.

Obama Justice Dept: Moderates Need Not Apply

This month, Pajamas Media has run an excellent series of articles about the radical hiring practices of the Obama Justice Department’s Civil Rights Division, including the Voting Section (here & here), Education Section, Special Litigation Section, and Immigration Office.

The series, authored by Hans von Spakovsky, J. Christian Adams and Richard Pollock, has unarguably demonstrated that

“[E]very single one of the career attorneys hired since Obama took office has a fringe leftist ideological bent and nearly all have overtly partisan pasts. Every single one. … Acting Assistant Attorney General Loretta King rewrote hiring guidelines in 2009, resulting in hiring committee members being forced to toss any resume that did not describe a radical background.”

This from the same Democratic party that investigated and harassed the George W. Bush Administration for adding a little bit of ideological diversity to the Justice Department’s career attorney staff by hiring a handful of conservative lawyers.

Obama's Latest Assault on the Commerce Clause

From the Billings Gazette:

Tractors lumbering down country roads are as common as deer in rural Montana, but the federal government wants to place new driving regulations on farmers and ranchers.

"It's a huge deal for us," said John Youngberg of the Montana Farm Bureau. After years of allowing state governments to waive commercial driver's license requirements for farmers hauling crops or driving farm equipment on public roads, the Federal Motor Carrier Safety Administration is poised to do away with the exceptions.

Regulators are suggesting that all wheat shipments be considered interstate, even when farmers making short hauls to local grain elevators aren't crossing state lines. The change would make commercial driver's licenses — and all the log books and medical requirements that go with them — a necessity for farmers. Some might not qualify. ...

FMCSA argues that because grain will ultimately be shipped out of state, it should be regulated as an interstate product at every transportation step. Treated as a product destined to cross state lines, grain becomes federally regulated under the commerce clause of the U.S. Constitution.

Judicial Diversity, S&P and BB Amendment

Statement of CFJ Executive Director Curt Levey:

This weekend brought two reminders of the looming battle over a balanced budget amendment: Standard & Poor’s downgrade of the U.S. credit rating and the passing of former Oregon Senator Mark Hatfield.

In announcing the downgrade, S&P cited the weakened “effectiveness, stability, and predictability of American policymaking and political institutions” and the “the difficulties in bridging the gulf between the political parties over fiscal policy.” A balanced budget amendment (BBA) would go a long way to addressing these problems. A constitutional amendment is, by design, far more stable and predictable than legislation. And getting the two-thirds vote in the Senate and House needed to pass a BBA would be a dramatic demonstration of “bridging the gulf between the political parties.”

A BBA is not a perfect solution to our nation’s debt problems. In particular, the amendment must be carefully crafted to address concerns about the role of the courts in enforcement. But what is the alternative? Does anyone seriously believe that legislation alone will get us within a hundred miles of a balanced budget, no less do it in a stable and predictable way?

If today’s obituaries for liberal Republican Senator Mark Hatfield are any indication, he will be remembered for casting the vote which defeated a balanced budget amendment in 1995. The amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin, but failing in the Senate by just one vote when Hatfield became the lone Republican to vote no.

Getting a BBA approved by two-thirds of each house is a steep obstacle. But the closeness of the 1995 vote – at a time when concerns about the ballooning national debt had not yet reached today’s levels – reminds us that it’s doable. All Republicans will likely be on board this time. And as a New York Times article noted last week, “for Democrats seeking to redefine themselves as careful fiscal stewards on the cusp of the 2012 campaign, the idea of a balanced budget amendment free of hard-line provisions is not an impossible sell.”

For our discussion of why last week’s debt deal provides an incentive for Congress to pass a BBA, see here.

It’s not often that we cite the New York Times twice in one day, but yesterday’s Times had a balanced article on the diversity of President Obama’s judicial nominees. In it, I touched upon several issues – non-discriminatory methods of achieving diversity, the high proportion of African-American nominees (relative to their proportion in the population and bar), and the mathematical reality that the weights given to race and other selection criteria for nominees can’t add up to more than 100 percent:

“Diversity is a good thing, but how do you achieve it — by quotas?” [Levey] said. “Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?”
“The more you focus on race and gender,” Mr. Levey added, “the less you’re going to focus on other traditional qualifications — that’s simply the math of it.”
Besides, he said, “If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”

In the article, I also commented on Democrats’ allegations that Senate Republicans have orchestrated a slowdown in the confirmation of noncontroversial judicial nominees:

Mr. Levey said that while his group and others had mounted resistance to several Obama nominees, including Goodwin Liu, a nominee to the United States Court of Appeals for the Ninth Circuit who withdrew after a Senate filibuster, there was no overarching campaign to slow the process.
“If there is a plan to delay these noncontroversial nominees, nobody has told me about it,” he said. He instead attributed the pace of confirmations to “the general lack of cooperation on all issues” in Congress.

Debt Deal Boosts BB Amendment

CFJ Executive Director Curt Levey on the Balanced Budget Amendment provisions of the debt deal:

As long-time advocates for a constitutional approach to limiting federal spending – the only type of budget reform capable of binding future Congresses – we are disappointed that the budget agreement worked out yesterday does not contain the Boehner bill’s requirement that a balanced budget amendment (BBA) be approved by the Senate and House and sent to the states. While we take no position on support for the agreement (the Budget Control Act of 2011 or BCA), we did find a bit of good news for BBA supporters in the bill. It contains not just a requirement that both houses of Congress vote on a BBA – the sole focus of most press reports – but also an incentive for Congress to approve a BBA.

To understand the incentive, it is necessary to clarify some confusion about the relationship between 1) the bill’s BBA provisions – providing for a debt limit increase of $1.5 trillion this winter if the BBA is approved by Congress; 2) the spending cuts of up to $1.5 trillion to be recommended by a special Joint Committee – resulting in a debt limit increase of up to $1.5 trillion if the cuts are approved by Congress; and 3) the $1.2 trillion in across-the board spending cuts triggered automatically if #2 fails – resulting in a debt limit increase of $1.2 trillion this winter. Reliable sources on the Hill have confirmed that, while Congressional approval of a BBA is a substitute for the Joint Committee cuts in the sense of enabling the $1.5 trillion debt limit increase, that substitution would not eliminate the automatically triggered cuts.

Some BBA supporters would have preferred that passage of a balanced budget amendment eliminate the triggered cuts, in order to give Democrats the maximum incentive for coming around to support the amendment. Nonetheless, the BCA was specifically designed to incentivize Congress to choose action – approved cuts or passage of the BBA. For example, either option provides the extra $300 billion in debt limit hikes necessary to see the Administration through the election if the economy and thus revenues continue to falter.

While the vast majority of Congressional Republicans need no incentive to vote for a BBA, most Democrats currently oppose the amendment. The hope for BBA supporters is that moderate Democrats can be turned around through a combination of public pressure – numerous surveys show that a large majority of American support a BBA – and a preference for wishful thinking – specifically the hope that the BBA won’t get the required approval of 38 states – over immediate, hard choices about what cuts to make.

The requirement that constitutional amendments be approved by two-thirds of each house is a steep obstacle, but it’s hardly an insurmountable one. In 1995, a balanced budget amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin and failing in the Senate by just one vote.

Interestingly, a united GOP could, intentionally or not, increase the probability of Democrats opting for a BBA by cutting off the other option for Congressional action – that is, by blocking approval of the $1.5 trillion in cuts in the Joint Committee or in the House. Whether the increased odds of BBA passage are worth the loss of the Joint Committee cuts depends on what sort of BBA gets out of Congress. The BCA does not address the details of a balanced budget amendment. But we will: a good balanced budget amendment is one that would cap federal spending at about 18% of GDP, require super-majorities in Congress for tax increases, and mandate a balanced budget fairly quickly, say five years after ratification.

The BCA gives supporters of a balanced budget amendment at least two months – a BBA vote is mandated sometime between this October and December – to translate broad public support for a BBA into the sort of political momentum that would make it difficult for moderate Democrats to vote against the amendment. Regrettably, the BBA did not take center stage in this summer’s debt ceiling debate until shortly before the House voted on it as part of the Cut, Cap & Balance bill. As a result, the momentum-building process for the BBA got a late start. The time between now and October gives BBA supporters plenty of time to erase the disadvantages of a late start.

In sum, while the BBA provisions in the Budget Control Act fall far short of our legislative ideal – a requirement for Congressional approval of a BBA with both spending caps and a super-majority requirement for tax increases – they are better than what’s been described in most press reports and offer some modest hope to BBA supporters.

Finally, we note that while constitutional budget reform is likely the most reliable approach, some permanent quasi-structural reform has already been achieved this summer with the establishment of a new normal for debt ceiling increases. Until now, the debt ceiling increases that enabled and fueled today’s out-of-control budget deficits were essentially automatic – devoid of debate and largely unopposed. We suspect that will never be the case again, thus ensuring a dramatically different budget playing field in the years to come.