June 29, 2006

Congrats to Peter Keisler!

We here at CFJ congratulate Peter Keisler for his appointment to the DC Circuit Court of Appeals.

Here is some info on Mr. Keisler:

Peter Keisler was sworn in as the Civil Division's Assistant Attorney General on July 1, 2003. Prior to that, he served as Principal Deputy Associate Attorney General and Acting Associate Attorney General. He joined the Department on June 24, 2002.

Prior to joining the Department of Justice, Mr. Keisler was a partner in the Washington, D.C. office of Sidley Austin Brown & Wood (formerly Sidley & Austin). He specialized in general and appellate litigation and telecommunications law, and has argued before the United States Supreme Court and numerous federal Courts of Appeals. He also served as Associate Counsel to the President during the Reagan Administration, and as a law clerk to Justice Anthony M. Kennedy of the United States Supreme Court and Judge Robert H. Bork of the United States Court of Appeals for the District of Columbia Circuit.

Mr. Keisler graduated magna cum laude from Yale College in 1981, and earned his law degree from the Yale Law School in 1985. He and his wife, Susan, have three children: Sydelle, Alexander, and Philip.

Peter D. Keisler
: October 13, 1960 Hempstead, New York
Legal Residence: Maryland
Marital Status: Married Susan Keisler, three children
Education: 1977 - 1981 Yale College B.A. degree magna cum laude, 1982 - 1985 Yale Law School J.D. degree
Bar: 1985 Pennsylvania, 1989 District of Columbia
Experience: 1985 - 1986 The Honorable Robert H. Bork, United States Court of Appeals, District of Columbia Circuit, Law Clerk
1986 - 1988 Executive Office of the President, Office of the Counsel to the President, Assistant Counsel (1986 - 1987), Associate Counsel to the President (1987 - 1988)
1988 - 1989 The Honorable Anthony M. Kennedy, Supreme Court of the United States, Law Clerk
1989 - 2002 Sidley Austin LLP, Associate (1989 - 1993), Partner (1993 - 2002)
2002 - Present United States Department of Justice, Acting Associate Attorney General (2002 - 2003), Principal Deputy Associate Attorney General (2002 - 2003), Assistant Attorney General, Civil Division (2003 - Present)

June 28, 2006

New Judicial Nominees for June 28, 2006


Office of the Press Secretary
(St. Louis, Missouri)
For Immediate Release June 28, 2006


John Preston Bailey, of West Virginia, to be United States District Judge for the Northern District of West Virginia, vice Frederick P. Stamp, Jr., retiring.

Mary O. Donohue, of New York, to be United States District Judge for the Northern District of New York, vice Frederick J. Scullin, Jr., retired.

John Alfred Jarvey, of Iowa, to be United States District Judge for the Southern District of Iowa, vice Ronald E. Longstaff, retiring.

Robert James Jonker, of Michigan, to be United States District Judge for the Western District of Michigan, vice Gordon J. Quist, retired.

Kent A. Jordan, of Delaware, to be United States Circuit Judge for the Third Circuit, vice Jane R. Roth, retired.

Raymond M. Kethledge, of Michigan, to be United States Circuit Judge for the Sixth Circuit, vice James L. Ryan, retired.

Debra Ann Livingston, of New York, to be United States Circuit Judge for the Second Circuit, vice John M. Walker, Jr., retiring.

Paul Lewis Maloney, of Michigan, to be United States District Judge for the Western District of Michigan, vice Richard Alan Enslen, retired.

Stephen Joseph Murphy, III, of Michigan, to be United States Circuit Judge for the Sixth Circuit, vice Susan Bieke Neilson, deceased.

Janet T. Neff, of Michigan, to be United States District Judge for the Western District of Michigan, vice David W. McKeague, elevated.

# # #

June 26, 2006

CCA Nominee Web Round-up

Terrence Boyle:

Sens. Dole and Burr have sent out a letter in support of Judge Boyle's nomination.

William "Jim" Haynes:

William Watkins has an excellent op-ed supporting Haynes in today's Greenville News which delves into Haynes' South Carolina ties, including his relation to a signer of the Declaration of Independence.

The Charlotte Observer has a piece on how conservatives in South Carolina view their homestate Senators somewhat differently. Hmm, I wonder if this has anything to do with the Haynes nomination.

Finally, Sen. Jon Kyl (R-Ariz.) spoke to Hugh Hewitt this Sunday about several different topics including judicial nominations and a possible opening on SCOTUS.

Hat tips: ConfirmThem

President Bush Defends Americans' Property Rights

On the one-year anniversary of the infamous Kelo decision, President Bush boldly moved to defend the property rights of all Americans with this executive order.

Here is Senator Cornyn's reaction to the President's order:

Executive Order signed by the President is an important step, Cornyn says

WASHINGTON— U.S. Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee, said that an Executive Order signed by President Bush Friday sends an important signal to all federal agencies about the need to protect private property. The order was signed on the one-year anniversary of the Supreme Court’s controversial Kelo decision. Cornyn, the author of the bipartisan Protection of Homes, Small Businesses, and Private Property Act (S. 1313), said the action was welcome, but “Congress must act soon.”

“The protection of homes and small businesses and other private property against government seizure or unreasonable government interference is a fundamental principle of American life and a distinctive aspect of our form of government,” Cornyn said. “The Supreme Court’s decision last year represented a radical departure from the decisions handed down interpreting that constitutional provision over the last 200 years, and the President’s action was an important step toward righting that wrong. But Congress must act soon.”

Cornyn, the first to file legislation on the issue after the Court’s ruling last year, said the Executive Order was similar to a portion of his legislation, but Congressional action is still required to protect property rights against federally funded abuses by local governments. The Cornyn legislation not only prevents federal takings for non-public use, but also prevents any federal funds from being used on projects where local governments have taken property for private use.

The Executive Order directs the Attorney General to issue instructions to the heads of agencies to implement this policy and to monitor the takings of private property by the agencies for compliance with the policy. Nothing in the order prohibits a taking of private property by the Federal Government legitimate public use, including for public ownership or exclusive use of the property, such as for a public medical facility, roadway, park, governmental office building or military reservation; conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right; or meeting military, law enforcement, public safety or public health emergencies.

Cornyn is the author of the Protection of Homes, Small Businesses, and Private Property Act (S. 1313). The Cornyn legislation would clarify government's exercise of its power of eminent domain to be limited only for public use. The bipartisan bill now has 31 Senate co-sponsors. More information can be found here: http://cornyn.senate.gov/record.cfm?id=239637

June 23, 2006

ABA’s Arrogance Comes Home to Roost

The Justice Department asked a federal court today to hold the American Bar Association in contempt for violating various provisions of a 1996 consent decree that prohibited the ABA from misusing the law school accreditation process. Although I don’t have any more information than what’s contained in a DOJ press release, that’s enough to make me wonder whether the ABA may have finally gone too far in pushing its diversity agenda. Let me explain.

Earlier this year, the ABA council charged with accrediting law schools amended its standard on diversity to virtually require that law schools engage in racial preferences in hiring and admissions. Professor David Bernstein has a good article on the changes, but it’s worth repeating the most arrogant provision. A binding interpretation of the amended standard states that "the requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with [the diversity standard]." In other words, the ABA is saying to schools in states that ban racial preferences – most famously California and Florida – “don’t give us that ‘but it’s against the law’ excuse.”

Critics of racial preferences have called attention to the ABA’s new diversity standard, and folks at DOJ may have been listening. Today’s DOJ press release explains that the ABA violated six provisions of the consent decree, including one that requires the ABA to “provide proposed changes to accreditation standards to the United States for review before such changes are acted on by the ABA's [accrediting council].” I don’t know whether the new diversity standard is among those the ABA failed to submit for review. But I’m willing to bet that, at very least, the controversy over the standard caused folks at DOJ to take a closer look at the ABA’s accreditation standards in general. And when you take a closer look, you never know what violations you might find.

Hat tip to Daniel Freedman for the DOJ press release.

Senator Cornyn Stands Up for Property Rights on Kelo Anniversary

Here are Sen. Cornyn's (R-TX) remarks today on the Senate floor:

The Kelo Decision June 23, 2006

The main reason I wanted to come to the floor today was to talk about the important issue of private property rights. Today marks the 1-year anniversary of one of the most controversial decisions ever handed down by the U.S. Supreme Court, and that is the case of Kelo v. the City of New London. In that decision, the Court held by a 5-to-4 vote that the government may seize private property, whether it be a home or small business or other private property, for the purpose -- not of public good but, rather, to transfer that same property to another private owner simply because the transfer would create an increased economic benefit to that community.

What made this such a profoundly alarming decision was that it represented a radical departure both from what the Constitution says -- that the power of government to condemn private property should be used only for public use -- and it represented a radical departure from the decisions handed down interpreting that constitutional provision over the last 200 years.

After all, protection of homes and small businesses and other private property against government seizure or unreasonable government interference is a fundamental principle of American life and really a distinctive aspect of our form of government. Indeed, private property rights rank among the most important rights outlined by the Founding Fathers when this country was created. Thomas Jefferson wrote that the protection of such rights is:

...the first principle of association, "the guarantee to every one of a free exercise of his industry, and the fruits acquired by it."

These protections were enshrined in the fifth amendment to the U.S. Constitution which specifically provides that private property shall not "be taken for public use without just compensation." The fifth amendment thus provides an essential guarantee of liberty against the abuse of power by eminent domain by permitting the government to seize private property only for "public use" and only upon paying just compensation.

The Court's decision in Kelo was sharply criticized by Justice Sandra Day O'Connor in her dissent, in which she wrote:

[The Court] effectively [has]...deleted the words "for public use" from the Takings Clause of the fifth amendment and thereby "refuse[d] to enforce properly the Federal Constitution."

Under the Court's decision in Kelo, Justice O'Connor warns:

...the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

She further warns that, under Kelo, under the Supreme Court's decision just 1 year ago "any property may now be taken for the benefit of another private party, and she said, "the fallout from this decision will not be random." Indeed, as noted in a friend-of-the-court brief filed by the National Association for the Advancement of Colored People and the AARP and other organizations:

[a]bsent a true public use requirement, the takings power will be employed more frequently. The takings that result will disproportionately affect and harm the economically disadvantaged and, in particular, racial and ethnic minorities and the elderly.

Again, that is the brief of the National Association for the Advancement of Colored People and AARP and others.

Suffice it to say that the Kelo decision was a disappointment. What I find particularly troubling is that the Kelo case is just one of many examples of the abuse of the power of eminent domain throughout our Nation. Its use for private development is now widespread. The Institute for Justice has documented more than 10,000 properties either seized or threatened with condemnation for private development during the 5-year period between 1998 and 2002. Despite the fact that so many abuses of that power were already occurring, the Kelo decision is particularly alarming, and local governments, the condemning authorities most often, have become further emboldened to take property for private development.

As this pattern has continued elsewhere, courts very quickly used this decision to reject challenges by owners to the taking of their property for other private parties. In 2005, for example, a court in Missouri relied upon Kelo in reluctantly upholding the taking of a home so that a shopping mall can be built. As the judge commented:

The United States Supreme Court has denied the Alamo reinforcements. Perhaps the people will clip the wings of eminent domain in Missouri, but today in Missouri it soars and devours.

I firmly believe legislative action is appropriate and necessary, and I am not alone in that belief. Several State legislatures have taken immediate action. Indeed, my home State of Texas passed legislation that was signed into law by the Governor last summer that protects private property from seizure for purposes of economic development. But it is also necessary and appropriate that Congress take action consistent with our authority under the Constitution to restore the vital protections of the fifth amendment. That is why the week after the Court handed down its decision I introduced S. 1313 entitled "the Protection of Homes, Small Businesses, and Private Property Act of 2005." I am delighted that other Senators have joined in that in broad and bipartisan support, including the immediate support shortly after it was filed of the Senator from Florida, Mr. Bill Nelson.

Today I am happy to report that a total of 31 of our colleagues have joined me as cosponsors of this important bill. This bill would ensure that the power of eminent domain is exercised only for public uses, consistent with and guaranteed by the fifth amendment of the Constitution. Most important, though, it would make sure the power of eminent domain would not simply be used to further private economic development interests.

The act would apply the standard to two areas of government action which are clearly within Congress's authority to regulate: No. 1, all exercises of the power of eminent domain by the Federal Government itself; and No. 2, all exercises of the power of eminent domain by State and local governments using Federal funds.

While we work to protect private property rights, we are mindful that the language we craft could have far-reaching implications. There is no question that where appropriate, eminent domain can play an important role in ensuring that true public uses are preserved. But now, just 1 year after the Supreme Court shut the door on Suzette Kelo and her fellow homeowners in New London, CT, it is imperative that Congress act soon to ensure that private property remains free from the long arm of government so that no American will have to worry about the Federal Government being involved in taking their private property for private development.

Chairman Specter of the Senate Judiciary Committee, on which I am proud to serve, is working with me on legislation that I hope he will choose to move soon through the committee. I look forward to working with him and my other colleagues to develop a solution that reaffirms our commitment to the protection of private property rights, one that will help stem the tide of egregious abuses of private property rights that we have seen throughout the Nation by the illegitimate use of the power of eminent domain.

I yield the floor.

Is the UK's Present America's Future?

Below Curt Levey delivers the bad news (nearly 6,000 properties taken with or threatened by eminent domain for private use in the last year) and the good news (democratically elected bodies on the state and federal level can, and in some cases, have already done something about it) on the one-year anniversary of Kelo.

In a rather frightening article for TCS Daily, Tim Worstall reports on the absymal state of property rights in the UK. Is this where we're headed if Congress and state legislatures don't protect the public from eminent domain abuse?

A Sad Anniversary

Today marks the one-year anniversary of one of the worst Supreme Court decisions of recent decades, Kelo v. New London. In Kelo, the Court continued its long tradition of reading out of the Constitution words it finds inconvenient, such as the "equal" in "equal protection," "privileges or immunities" in the Fourteenth Amendment, and both "commerce" and "among the several states" in the Commerce Clause, to give just a few examples. By a 5-4 margin, the Kelo Court effectively read "for public use" out of the Fifth Amendment's Takings Clause when it ruled that governments can take your property for private commercial development based on nothing more than a prediction of economic benefits.

To mark this unfortunate anniversary, the Institute for Justice, which litigated Kelo, is out with a series of reports which, among other things, document both the increased use of condemnation for private development since Kelo and the legislative response to the decision. For example, in the year since Kelo, there have been nearly six thousand properties nationwide that have been taken with or threatened by eminent domain for private development, a roughly threefold increase over the annual rate for the previous five years. In other words, the dire predictions made by Justices O’Connor and Thomas, in dissent, have come true.

Fortunately, unlike some of the Supreme Court's other infamous decisions, Kelo did not shut off democratic channels for expression of the public will. As a result, 25 states have reacted to Kelo by enacting legislation that provides various degrees of protection against eminent domain abuse. Let's hope the feds follow suit by enacting the Private Property Rights Protection Act, which has already been overwhelmingly approved by the House. The Act cuts off economic development funds to state and local agencies that use eminent domain for private development.

June 15, 2006

Stanek: Pro-lifers Need to Wake Up and Smell the Filibuster

Jill Stanek has a great article laying out what's at stake in the Santorum-Casey race, not only for those who are pro-life, but for anyone who wants the next Bush SCOTUS nomination to be as successful as the first two. Amazingly, some pro-lifers in PA are apparently not going to vote for Santorum because he supported pro-choice Senator Arlen Specter over pro-life primary challenger Pat Toomey in 2004. For you PA pro-lifers out there who think that's OK because Casey is pro-life, think again. Senate Minority Leader Harry Reid is "pro-life" as well and he not only voted against Roberts, but also voted for the Kerry-led attempted filibuster of Alito. The fact is, when push comes to partisan shove, there are no true pro-life Democrats.

Hat Tip: Third Branch Conference

Playing Games with Judges

Jeffrey Lord has an outstanding op-ed in today’s Philly Inquirer about the stalled (for three years) nomination of William “Jim” Haynes. This time the nomination has apparently been stalled by Republican Senator Lindsey Graham (S.C.) because of criticisms of Haynes from some in the military community concerning policies on terrorist detainees.

Lord makes several good points in the article:

1) Whether you agree with Graham’s opinion or not, it remains true that Senators should not abuse the judicial confirmation process and give every nominee a fair vote.

2) Politicians themselves rely on rules when they are elected to office. As Lord points out, “If Graham were informed today that his next election were moved up from 2008 to next week, he would correctly cry foul. Yet he shows not the slightest concern over letting a judicial nominee cool his heels for three years.”

3) The broken judicial confirmation system is not just a problem for Bush, but for any future President whether s/he is a Democrat or a Republican. “After senatorial abuse of the process reaching back to the Reagan administration, what makes any Democrat think things will change if the next president’s name is Clinton, Kerry or Feingold?” asks Lord.

4) Senator Arlen Specter’s proposed reforms need to be resurrected and passed in order to fix the present partisan mess over judicial nominations the Judiciary Committee and the Senate now find themselves in.

June 12, 2006

Congress Daily: Conservatives Push Leadership on Judges

Greta Wodele reports in Congress Daily (sorry, subscription only) on efforts by conservative groups to encourage the Senate leadership to move forward on President Bush’s judicial nominees, including several that have been languishing in limbo for years such as Judge Terrence Boyle. Here’s an excerpt of the article:

“More than 60 conservative leaders today called on Senate Majority Leader Fristto set aside this month's planned debate on a constitutional amendment to ban flag burning and instead schedule votes on several pending appellate court nominations. 'We write to remind you of your duty, but also because we are concerned that if the majority that assured the confirmation votes of Chief Justice Roberts and Justice [Samuel] Alito lose just one seat in the next election, the future of the Supreme Court and the federal appellate bench will again be imperiled by use of filibusters,' members of the coalition of conservative groups wrote in a letter to Frist and Republican senators...The coalition argued the judges debate, which has pitted Republicans against Democrats, ranks higher in surveys with conservatives than the flag burning proposal.”

At a press conference earlier today lead by Manuel Miranda of the Third Branch Conference, leaders of a number of conservative groups, including CFJ’s Sean Rushton, spoke with reporters:

"'It will get out small margins,' Miranda told reporters, conceding the issue would not mobilize large numbers of conservative voters. 'It is by small margins that several [GOP] senators currently hold their seats.' Miranda said the judge debate is a 'signature issue' for Frist, who would need conservatives for a potential White House bid in 2008. 'He began with a bang, but if he ends on a whimper that could hurt him,' Miranda said. 'We want to help him.'"

However, not everybody seems to be listening.

"One GOP Senate aide dismissed Miranda's news conference today as a media ploy to pressure Republicans on a single issue. 'The 'Flag Amendment' is not preventing movement on judges,' said the aide, arguing the flag proposal gave conservatives a 'juicier hook' than other legislative measures slated for floor debate this year."

The unnamed aide should take a look at Sean Rushton’s article on NRO from 2003 detailing how the issue of judicial nominations and Democratic obstruction helped Republicans across the country in the 2002 elections. (Also check out this Wall Street Journal editorial from 2006 that takes a similar view). In 2004 Republicans again benefited from the issue, including John Thune, who managed to knock off then-Senate Minority leader Tom Daschle. As Miranda said earlier today, we want to help.

June 07, 2006

Fish or Cut Bait

Alexander Bolton reports in The Hill today that the Bush Administration is asking senators to "fish or cut bait" concerning circuit court nominees stalled for years in Senate limbo, such as Terrence Boyle (4th Circuit), William Haynes (4th Circuit), and William Myers (9th Circuit). In other words, confirm them or reject them on an up or down vote, but don't leave them hanging any longer. That strikes me as a request so reasonable that no senator acting in good faith should say no to it. Of course, some will say no nonetheless.

June 05, 2006

Grutter Redux

The Supreme Court's decision today to take up the issue of race-based school assignment, just three years after Justice O'Connor's disappointing opinion in Grutter v. Bollinger, is good news for those of us who oppose the use of race in student selection. The cases accepted – Parents Involved in Community Schools v . Seattle School District and Meredith v. Jefferson City Board of Education – involve K-12 rather than Grutter's higher education context, and are unlikely to result in the overturning of Grutter's central holding that diversity is a "compelling interest" that can justify racial admissions preferences. It's too soon for such an abrupt reversal and, besides, the race-based student assignment plans at issue can easily be struck down within the Grutter framework. Nonetheless, today's cert grant likely signals that, with Alito replacing O'Connor, there are now five votes to 1) make it clear that the deferential treatment of racial preferences in Grutter was a one-time gift to affirmative action fans and 2) reign in the lower courts – such as the Ninth Circuit in Parents Involved and the Sixth Circuit in Meredith – that have interpreted Grutter as a virtual black check for the use of race in student selection.

Two years ago, I predicted that, despite Grutter's seeming 25-year blessing for the use of race in admissions, history would show that the decision was merely "a temporary and limited reprieve for race-based admissions policies." I am hopeful that the Court's decisions next term in Parents Involved and Meredith will be the first step in the fulfillment of that prediction.

June 01, 2006

A Reminder

With the president standing by his side, Brett Kavanaugh was sworn in today as a judge on the D.C. Circuit. After Brett's three long years of waiting and uncertainty, the sight of the ceremony – with the president standing by Kavanaugh's side and Justice Kennedy doing the swearing in – was heart warming for those of us who have fought for this nominee's confirmation. But the ceremony was also a time for reflection on the President's other long-stalled nominees: Terrence Boyle, William Haynes, and William Myers.

In other words, Brett's confirmation and swearing in should not be occasions for patting ourselves on the back. Instead, they should serve as a reminder that we have a lot more work to do, as recent statements by the leading constitutionalist organizations involved in the judges fight made clear. Let's hope that today's swearing in also serves as a reminder to Senate Republican leadership that there can be other heart-warming ceremonies in the near future if only they would make confirming judges a true priority.